Irene Muñoz Escandell
The culture of hate involves affirming one’s own identity based on destroying what is perceived as ‘different’ by associating it with aspects such as a certain region, nation, religion, social class, sexual orientation or profession. This notion of belonging that excludes others is the cradle of hate, and when hate finds no other channels or circumstances that favour it, the end result can be violence. However, the evolution of hate is a complex phenomenon. The mere sense of belonging is not sufficient to apply punishment, which is the main subject of this analysis. The determining factor in what could be called ‘punishable hate’ is that this sentiment should lead to action, usually designed to change the status quo in opposition to one’s own beliefs and convictions. However, it is this emotional origin of actions and the impulse behind them that makes them so hard to combat.
However, the development of hate is a complex phenomenon and the mere feeling of belonging is not sufficient for a sanction to be enforced, which is the main aim of this analysis.
The key factor in what could be called ‘punishable hate’ is that the sentiment leads to action, usually aimed at changing the status quo contrary to one’s own beliefs and convictions. However, the emotional origin of such actions and the impulses that drive them are where a large part of the difficulty lies when it comes to combatting them.
Indeed, emotion may run deep. In his book “Against fanaticism”12, Amos Oz graphically explains that it originates at home, precisely due to the common desire to change a loved one’s behaviour “for their own good”, in line with the deeply-rooted idea that “you have to be who I am”. Based on that, as they grow up people cling on to certainties constructed from their childhood. The problem starts when, for whatever reason, a person feels that these certainties are being challenged. It does not matter that they are not being challenged, or that they may even need a change. The important aspect is the perception of the threat to the known system, and the greater uncertainty that characterises modern life feeds this feeling even more. A lack of jobs and the instability this brings make it hard for people to plan their own future, as their parents did. Young people have not even had a chance to dream about that possibility.
They are growing up in a climate of defeat, without clearly-marked safe areas, although the lack of jobs is not the only problem. The values drummed into them by their parents and grandparents have also been displaced, as they do not fit into the new reality. In a globalised world, societies reinvent themselves, and the individuals that make them up must do the same. Cultures mix and blend and feedback on themselves, but this process is not problem-free, especially when anything from the ‘outside’ is perceived as a threat to one’s own security, largely based on personal identity and/or belonging to a group. Deep down, fear is a good breeding ground for the development of behaviours that could end up fulfilling the criminal offence profile described in this report.
Fear, fed by a series of factors such as economic crises, excessive obsession with identity, political uncertainty or any other, creates structural, cultural and personal violence that is exercised −directly and indirectly− against groups that are particularly vulnerable to intolerance and prejudice based on race, sexual orientation, ethnic group, age, gender, religious beliefs, social class, gender identity, origin, state of health, capabilities or legal situation, among others.13
Nine out of ten people attacked in Europe for reasons of hate or discrimination do not report it, according to data collected in 2017 by the European Union Agency for Fundamental Rights (FRA)
However, although hate crimes are the most serious expression of discrimination and a violation of fundamental rights, many people do not see themselves as victims, or simply perceive that there is no point in reporting incidents.14 This scarcity of reporting reveals a clear lack of confidence in the support and guarantees provided by institutions. This not only affects the right of access to justice and reparation, it is also fertile ground for impunity.
Hate thus becomes as a daily experience for these people, a substance that filters through the social fabric, often invisibly and without leaving a trace in official statistics. This process of gradual impregnation ends up numbing the conscience of societies, legislators, policy-makers and legal operators. Therefore, it is important to compile solid and reliable data on the phenomenon, to address it by designing and implementing effective measures to confront prejudice and foster fair and inclusive societies.
In its report “Ensuring justice for hate crime victims: professional perspectives”, the FRA identified four essential themes to analyse the situation:
Consultation of official bodies
Awareness of their rights and of victim support services available to them as victims of hate crime, the fragmented and patchy nature of appropriate support services available to hate crime victims emerges as a factor significantly impeding victims.
Compilation of data from open sources
Support for victims and improving their confidence in the authorities, which means adopting measures that address discriminatory motives.
Adopting practical measures as promising means of facilitating hate crime reporting, including setting up specialised police units or liaison officers and allowing online reporting, among others.
Analysis of cases and trends
Raising awareness of professionals − police officers, prosecutors and judges. To do this, they first need to understand the legal categories and concepts that define this phenomenon and, second, make a commitment to the work of identification and prosecution, as well as passing sentences in this regard.
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 legal definition of punishable hate speech
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.
European legislative framework
Given that the regulations and values of the Member States in this area are different, European Union regulation is essential to strengthen existing standards and adopt measures to counteract hate speech and hate crimes.
As examples, we would highlight the following regulations, ordered from the most recent to the longest-standing:
> Commission Recomendation (EU)2018/334 of March 2018, on mesures to effectively tackle ilegal content online. Period: 2014 to 2020.
> European Parliament resolution of 14 March 2013 on strengthening the fight against racism, xenophobia and hate crime (2013/2543(RSP)).
> Directive 2012/29/EU of the European Parliament and the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime.
> Recommendation CM/Rec(2010)5 of the Committee of Ministers to menber states on measures to cambat discrimination on grounds of sexual orientation or gender identity, 31 March 2010.
> Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law.
>European Parlaiment resolution of 20 May 2008 on pregress made in equal opportunities and non-discrimination in the EU (the transposition of Directives 2000/43/EC and 2000/78/EC).
> 2 July 2008 a proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion of bilief, disability, age or sexual orientation.
> Convertion on Cybercrime (Budapest, 23 November 2001).
> European Parliament, in its resolution of 31 January 2008, on a European strategy for the Romany population.
> Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation.
> Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin.
> Recommendation R(97) 20, of 30 October 1997, of the Committee of Ministers to Members States on hate speech.
> Framework Convertion for the Protection of National Minorities (nº. 157 of the Council of Europe), signed in Strasbourg on 1 February 1995.
> European Convention on Human Rights (ECHR), 4 November 1950.
Conclusions on the legal context of hate crime
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
Promote professionalisation and coordination in a framework of security for the victims of hate crimes that increases confidence in the police.
Extend the capability for action of entities and services in the field of hate crimes.
Create and guarantee full, effective and specific legal coverage of hate crimes for the protection of vulnerable groups.
Train health professionals so that they can act bearing in mind new forms of victimisation, e.g. cyberbullying, and forms of victimisation that have traditionally gone unnoticed, such as harassment in schools or in the workplace.
Pay special attention to the social and family support network of victimised people. Creating awareness in society is a key factor, as it influences the proliferation (or not) of prejudice, and as a consequence, of discriminatory behaviours that are, in the final analysis, criminal behaviours against certain sectors of the population.
Promote training and raising awareness among professionals (particularly health, police and legal personnel) to deal with victims correctly, avoid secondary victimisation and, in the final analysis, impunity for crimes.
Foster coordination and cooperation between stakeholders: in the criminal justice system (police officers, lawyers, prosecutors and judges) and the victims of these crimes.
A lack of specific consideration of hate crimes in the legislation of some States is just the tip of the iceberg that hides the problems involved in hiding the crime from view and identifying it. In general, not using the term “hate” clearly shows a lack of conviction or awareness about how crimes in this area can be grouped together. This effectively dilutes them -with certain exceptions- into a series of all-purpose provisions, in some cases, or that aim to adapt to a situation that is not even given a name in others. This lack of awareness or openly considering that the regulation of the behaviours that produce the harm (e.g. an attack) is sufficient, without considering another cultural or structural element does not help to hold back progress in dealing with the phenomenon. The contrary is more likely, as fertile ground is provided for its propagation, threatening social cohesion and stability.
Therefore, another step forward is necessary to be able to work together. As Robert Schuman said in his Declaration of 9 May 1950: “World peace cannot be safeguarded without the making of creative efforts proportionate to the dangers which threaten it.”
The fact that some States do not specifically consider hate crimes in their legislation is just the tip of the iceberg, hiding great problems for the detention and identification of the problem.
This threat that European societies are facing does not come from outside, it operates from within, undermining its structures on a continuous basis, often invisibly. It puts their values to the test and places them before a mirror that can return a distorted (and possibly unwelcome) image. The model of coexistence is an overall image that constructs or destroys an individual. That is why the principles that give this model cohesion need to be strengthened, and that is where all creative efforts should be directed.
12 OZ, A., Contra el fanatismo,título original “The Tubingen Lectures. Three Lectures”. ed. Siruela, Barcelona, 2011
13 FUNDACIÓN ABOGACÍA ESPAÑOLA, “Delitos de odio. Guía práctica para la abogacía”, ed. Fundación Abogacía Española, 2018: https://www.abogacia.es/wp-content/uploads/2018/12/GUIA-DELITOS-DE-ODIO.pdf
14 FRA, “Garantizar la justicia para las víctimas de los delitos por odio: perspectivas profesionales”, ed. Agencia de los Derechos Fundamentales de la Unión Europea, Viena, Austria, 2016: https://op.europa.eu/s/n92e MUÑOZ ESCANDELL, I., red y coord., “Informe sobre el Estado de los Derechos Humanos de las Personas con Trastorno Mental en España 2019”, Confederación SALUD MENTAL ESPAÑA, mayo de 2020: https://www.consaludmental.org/publicaciones/Informe-Derechos-Humanos-Salud-Mental-2019.pdf
15 EUROPEAN PARLIAMENT, “Hate speech and hate crime in the EU and the evaluation of online content regulation approaches”, Study requested by the LIBE committee, Policy Department for Citizens’ Rights and Constitutional Affairs Directorate-General for Internal Policies PE 655.135 – July 2020: https://www.europarl.europa.eu/RegData/etudes/STUD/2020/655135/IPOL_STU(2020)655135_EN.pdf
17 ECRI, Recomendación General nº15 sobre Líneas de Actuación para combatir el discurso de odio, adoptada el 8 de diciembre de 2015, Estrasburgo, 21 de marzo de 2016: https://rm.coe.int/ecri-general-policy-recommendation-no-15-on-combating-hate-speech/16808b5b01
18 En esta Recomendación de la ECRI señala que aunque rechaza las teorías que sostienen la existencia de distintas razas, empleaba el término “raza” a fin de garantizar que las personas que suelen percibirse de forma general y errónea como pertenecientes a otra raza quedan sujetas a la protección que confiere dicho texto
20 ROLLNERT LIERN, G., Revista Española de Derecho Constitucional, 115, enero-abril (2019), pp. 81-109. En este documento se cita la sentencia de referencia: STEDH Féret c. Bélgica, de 16 de julio de 2009, apdo. 73. Sobre esta sentencia, Alcácer Guirao (2012: 02.05 a 02.08), Rey Martínez (2015: 74-77) y Rodríguez Montañés (2012- 242-245)
21 EUROPEAN PARLIAMENT, c., , oop.cit.pp.16-17
22 QUESADA ALCALÁ, C., “La labor del Tribunal Europeo de Derechos Humanos en torno al discurso de odio en los partidos políticos: coincidencias y contradicciones con la jurisprudencia española”, Revista Electrónica de Estudios Internacionales, DOI: 10.17103/reei.30.04, 2015. Asimismo, EUROPEAN UNION FUNDAMENTAL RIGHTS AGENCY, “EU-MIDIS Data in Focus Report 6: Minorities as Victims of Crime”, Vienna, Austria, 2012, pp.3-16: https://fra.europa.eu/en/publication/2012/eu-midis-data-focus-report-6-minorities-victims-crime
25 SPORA CONSULTORÍA SOCIAL, “La respuesta de Barcelona a los delitos de odio y las discriminaciones”, Artículo en web, 7 junio, 2018: http://www.spora.ws/es/la-respuesta-de-barcelona-a-los-delitos-de-odio-y-las-discriminaciones-2/MUÑOZ ESCANDELL, I., red. y coord., “Informe sobre el Estado de los Derechos Humanos de las Personas con Trastorno Mental en España 2019”, Confederación SALUD MENTAL ESPAÑA, mayo de 2020: https://www.consaludmental.org/publicaciones/Informe-Derechos-Humanos-Salud-Mental-2019.pdf