Hate crime in Europe, a legal perspective

No society is immune to signs of hate. As shown in a study published by the European Parliament in July 2020 (“Hate speech and hate crime in the EU and the evaluation of online content regulation approaches”),15 these signs not only affect the security of people and their communities, but they also extend to society as a whole. Nevertheless, it is possible to prevent this from happening, and once it has been demonstrated, it should be addressed. Indeed, it is precisely the reaction of the State that marks acceptable standards in this field to society Therefore, a counter-discourse is essential, backed up by political action on social inclusion, and a counter-action aimed at strengthening the institutional system to combat hate speech and hate crime. The opposite, i.e. a lack of suitable means of prevention and response, undermines the values consecrated in article 2 of the Treaty on European Union (TEU). This study maintains that hate speech and hate crimes poison societies by threatening individual rights, human dignity and equality, increase tensions between social groups and disrupt society’s resilience, which is why it is necessary to focus on what facilitates the expansion of very specific discourses that have well-defined contours. In other words, it is a case of marking out the fears and concerns that lead people to embrace a ‘narrative of hate’, to address and manage them through good, substantial social policies, together with a credible narrative from the European Union based on human rights, equality, tolerance and solidarity.¹⁶

The Member States of the European Union (EU) have different ways of reflecting events that constitute hate crimes in their legislation and policies. The aim of this report is to present these rules, plus key aspects to address the phenomenon in the various countries. The information is presented objectively, without making comparisons and respecting the different approaches, with a view to mirroring the initial situation that reflects the essential aspects that should be reinforced or incorporated to oppose this scourge and work together to eradicate it completely from our societies.

The European Court of Human Rights has clearly stated that freedom of expression is a basic pillar of a democratic society. However, there is no consensus around how hate speech should be understood. It is not a crime in itself; indeed, an expression of hate, hostility, intolerance, intimidation or dislike is not always classified as such.

In its General Recommendation no. 15 on combating hate speech¹⁷, he ECRI defines hate speech as the denigration, hatred or vilification of a person or group of persons, as well as any harassment, insult, negative stereotyping, stigmatization or threat in respect of such a person or group of persons and the justification of all the preceding types of expression, on the ground of “race”¹⁸, colour, descent, national or ethnic origin, age, disability, language, religion or belief, sex, gender, gender identity, sexual orientation and other personal characteristics or status”. It also recognises that this speech includes incitement and “may take the form of the public denial, trivialisation, justification or condonation of crimes of genocide, crimes against humanity or war crimes which have been found by courts to have occurred, and of the glorification of persons convicted for having committed such crimes” and can also “reflect or promote the unjustified assumption that the user is in some way superior to a person or a group of persons that is or are targeted by it” which have been found by courts to have occurred, and of the glorification of persons convicted for having committed such crimes” and can also “reflect or promote the unjustified assumption that the user is in some way superior to a person or a group of persons that is or are targeted by it”.

Consequently, the ECRI recognises that there are “forms of expression that offend, hurt or distress but which. in themselves, do not constitute hate speech and that the fight against hate speech should serve to protect people and groups of people more than specific credos, ideologies and religions”. Basically, it reaffirms the essential importance of freedom of opinion and expression in a democratic and plural society, but highlights that these rights are not unlimited and that they should be exercised in such a way that they do not infringe the rights of others¹⁹.

Within the Council of Europe, the appendix to Recommendation R (97) 20 dated 30 October 1997 by the Committee of Ministers to the Member States on hate speech defines it in the following terms: “all forms of expression which incite racial hatred, xenophobia, anti-Semitism and all forms of intolerance, including the intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin”.

This definition would later by assumed by the European Court of Human Rights (ECHR), and although it does not expressly incorporate incitement to action against a target group, the matter was addressed in the case law of this Court, and its decisive nature in certain contexts was reiterated on several occasions, even equating the justification, glorification or promotion of violence with this incitement, albeit indirectly: “incitement to hate does not necessarily require a call to a particular act of violence nor to another criminal act”. Nevertheless, the extensive case law of the ECHR has not yet clearly defined the standard for punishable hate speech, so in this context its definition is still not completely precise²⁰.

Although a legal definition of hate crimes does not exist stricto sensu, it can be said that it is a concept that covers a range of offences classified in national criminal law codes and can adopt several forms and levels of severity, affecting people, property or social order: homicide, assault, harassment, damage to property or vandalism, among others²¹.

Therefore, we cannot speak of a specific offence but a certain kind of offence that is regulated by most criminal law systems and mainly affects sectors of the population who find themselves in a situation of subordination or discrimination, to the extent that the doubt sometimes arises as to whether the group is being protected or not, or a person who is part of that group. In these offences, therefore, two fundamental elements stand out: a criminal act and motive based on prejudices of different types. Indeed, it is precisely the perception of the victim and/or the witnesses that is one of the most notable factors when it comes to identifying and reporting a kind of crime that ultimately aims at humiliation and slander²².

In this respect, we will work on the basis of the definition of hate adopted by the Organization for Security and Co-operation in Europe (OSCE) , developed through its Office for Democratic Institutions and Human Rights (ODIHR) in the eleventh meeting of the Council of Ministers held in Maastricht in December 2003.23.

(A) Any criminal offence, including infringements affecting people or people, where the victim, place or target of the infringement is chosen for its real or perceived connection, rapport, affiliation, support or belonging to a group like those defined in part B;
(B) A group should be based on a common characteristic of its members, such as their real or perceived race, national or ethnic origin, language, colour, religion, sex, age, intellectual or physical disability, sexual orientation or other similar factor.”

It can generally be said that directly committed violence is the form that is punished under criminal or administrative law, but this is not always the case with indirect violence, however reprehensible it may be morally, which could be compatible with freedom of expression.

However, this should not lead one to conclude that this kind of violence should be ignored, as such prejudice and feelings of rejection are the germ of violence that can be punishable. Hence the importance, in democratic systems committed to human rights, to address these reasonably visible forms of violence. Policies should be implemented that foster a change of mentality based on equality and respect for diversity. Therefore, as well as creating regulations that punish discriminatory behaviour, policies that drive cohesion and coexistence through education, training and raising awareness are required. By doing this, the focus is not only on human rights, but also a preventive approach to address this ‘unpunishable hate’ which feeds off prejudice and intolerance, harms people and breaks down social coexistence²⁴.

The lack of consensus around the definition of a growing phenomenon in Europe as is hate speech, and the consequent lack of common definition of hate crimes, leads to disparate regulation in the various Member States. The differences depend on diverse factors related to values, level of awareness and the country’s cultural, socio-political and economic context, among others. Whatever the case, hate speech can lead to serious violations of human rights, so it is essential to work together to address a problem that crosses national borders and design actions to prevent and sanction this kind of crime, and also protect its victims.

In European institutions, there is a clear consensus on the need to punish the most serious cases of hate speech.

However, not every expression of hate constitutes a crime and, in this sense, we can discern a blurred border with freedom of opinion and expression that ties in with one of the basic pillars of any democracy. For this reason, there is also agreement on which rights have their limits in respect for the rights of others. It is about tracing a line, as clearly as possible, to indicate where one’s own rights end and where the rights of other people begin, in order to fight this scourge effectively.

To do this, it is important to bear the following recommendations in mind:²⁵