Esteban Ibarra
Hate crime is nothing new in the history of Europe or the world. Nothing new, except its name, recognition and sanction, in the criminal law systems of a number of democratic countries, although not in dictatorships. In Spain, when we speak of hate crimes and describe them in Criminal Law, we refer to “offences related to the exercise of fundamental rights and public freedoms”, and also as an aggravating circumstance applicable to any criminal offence that makes it a hate crime.
This term was coined by journalists in the USA, equivalent to expressions that relate its origin to the terrible experiences of “hate for different people” that led to the most tragic events of the 20th century in Europe. In its Recommendation No. R (97) of 1997, the Committee of Ministers of the Council of Europe stated that hate speech shall be understood as “covering all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on tolerance, including: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of migrant origin”.
In 2003, the OSCE (2003) defined Hate Crime, in an effort to link legal approaches to the scourge, in a working concept as: “ any criminal offence, including those against people and property, when the victim, the place or the object of the offence are selected for reasons of their connection, relation, affiliation, support or real or supposed membership of a group that could be based on ‘race’, national or ethnic origin, sexual orientation or other similar factors, be they real or supposed”. This concept has had its critics, for example, for not including in the definition crimes committed in countries that, protected by an undemocratic legality, execute victims for reasons of different sexual or religious orientation or other expressions of the human condition that are persecuted outside the OSCE.
Victims of hate crime and their protection
To understand who a victim of a hate crime can be, the first thing to do is rationalise what is to be protected when a person is on the receiving end of this kind of offence. The legal right being attacked is a person’s intrinsic dignity, their inherent freedoms and basic rights, due to intolerance, i.e. the denial of respect, acceptance and esteem for a person and their peers (group), rejection and scorn for some form of expression of the victim, whose aggressor interprets as real or imaginary. Then there is their racial phenotype, national origin (xenophobia), sexual orientation (homophobia), religion, ideology, age, illness, opinion or any other personal or social condition or circumstance. Hate crime is a term of universal scope for any person, at any time and in any place in history, as this dehumanising practice has occurred over the centuries although it has only been recognised/defined relatively recently. Let us avoid erroneous, exclusive and discriminatory interpretations, which are only reductionist and contrary to human rights.
The first often-repeated fallacy is to describe hate crimes with expressions that aim to exclude, such as “their creation” was for the “protection of historically vulnerable groups”. Criminal law systems or working concepts make no reference to “historically vulnerable”. The aggressor’s motives are what affect people, and their vulnerability depends on situations and contexts. Historicity cannot be interpreted to ignore or exclude other events included in the concept that are less historical or collectivist. For example, cannot people from the Left and Right be victims of a hate crime, vegan or animalist, constitutionalist or pro-independence, Christian, Muslim, Jew, Moroccan, Spanish or any others for reasons of genetics, age, physical appearance, territorial origin, language, or any other marker of bias against people, without it being “historical”?
Another fallacy is the reductionism that reduces hate crime to “the fight for equality of vulnerable groups”, saying that an extensive interpretation of the concept cannot be made. This is not the case. International treaties and the Spanish Constitution place it as the cornerstone of legality, in line with article 1 of the Universal Declaration of Human Rights, in two aspects:
” A person’s dignity, the inalienable rights that are inherent to him/her, the free development of personality, respect for the law and the rights of others are the basis of political order and social peace”
” All Spaniards are equal before the law, with no discrimination being allowed to prevail for reasons of birth, race, sex, religion, opinion or any other personal or social condition or circumstance”.
The view that “there is no right not to be offended” is also a fallacy, as is making an unlimited defence of freedom of expression to insult, offend and threaten, clearly paving the way for possible slander, humiliation and other harm to human dignity. This is evidenced by sentences such as the one by the Spanish Constitutional Court on 22.7.2015 “Freedom of expression is not an absolute and unlimited fundamental right, it logically has, like all others, its limits, so any particular expression does not deserve constitutional protection for its mere existence, unless art. 20.1 a) CE does not recognise an intended right to insult” (SSTC 29/2009; 77/2009 and 50/2010).
Freedom of expression cannot be used to justify hate speech and hate crime. Neither phobias nor the practice of intolerance can violate rights. There is no room for racism, ideological hate, xenophobia, religious intolerance, or homophobia, nor misogyny, ethno-centrism, aggressive nationalism or hate based on intolerance of different people or a compromise with criminal intolerance.