Johanna Westeson - The ICHRP

3. European Union
The issues of hate crimes based on sexuality biases and police brutality/failure to respond
to such crimes have not been addressed by binding EU law. In 2008, a new Framework
Decision was adopted on the combat of racism and xenophobia by means of criminal law,
according to which states are obligated to ensure that racist or xenophobic motivation is
considered an aggravating circumstance in the application of criminal law. 627 So far no
similar initiative has been taken to address crimes motivated by homophobic or
transphobic biases.
4. Non-binding regional documents
On the regional level, there are strong statements against hate crimes on the grounds of
sexual orientation or gender identity. Here should be reiterated the recently adopted
Recommendation CM/Rec(2010)5 of the Committee of Ministers to member states on
measures to combat discrimination on grounds of sexual orientation or gender identity. 628
This document urges governments, inter alia, to conduct effective, prompt and impartial
investigations into allegations of crimes where the sexual orientation or gender identity of
the victim is suspected to have constituted a motive for the perpetrator; pay particular
attention to crimes in this category committed by law enforcement personnel; make bias
motives aggravating circumstances in sentencing; and take special measures to protect
lesbians, gays and transgender persons in prison against bias-motivated crimes related to
their sexual orientation or gender identity. 629
5. Domestic legislation and case law
Here will be addressed criminal laws whose sentencing guidelines take into account
aggravating circumstances such as motives, or characteristics of the crime, that are based
on contempt for specific groups, traditions or behaviors. This means that when the
prosecution can show that the crime either expressed itself in or was motivated by (this
varies by legislation) hatred or biases towards those groups, the perpetrator will receive a
harsher sentence. There are also countries that have created specific offences for biasmotivated
violence, rather than making such motivation a general aggravating factor. As
far as this researcher knows, no such legislation exists with regard to sexuality-related
biases in Europe. 630
Historically, the first grounds to be addressed by hate crimes legislation were racial, ethnic
and religious stereotypes or biases. Lately, however, sexuality-related biases have been
included; penal codes have been amended in the region to explicitly include hatred for real
or perceived sexual orientation as an aggravating factor in sentencing of violent crimes. 631
627 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, OJ L 328/55, Article 4.
628 Adopted on 31 March 2010.
629 See for earlier regional statements on this issue the European Parliament resolution on homophobia in
Europe (P6_TA(2006)0018, adopted on 18 January 2006), and the European Parliament resolution of 26
April 2007 on homophobia in Europe (P6_TA(2007)0167).
630 See, for example, Human Rights First, Overview: Hate Crime Report Card, December 2007, p. 36.
Available at http://www.humanrightsfirst.info/pdf/071217-discrim-hc-report-card-overview-2007.pdf. Last
visited on 14 May 2010.
631 According to European Union Agency for Fundamental Rights (FRA), Homophobia and Discrimination
on Grounds of Sexual Orientation in the EU Member States: Part 1- Legal Analysis (2008) p. 121, available
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