Johanna Westeson - The ICHRP

Greece illustrates this trend. In 2009, the country adopted a new law that stipulates that a
crime committed on the basis of national, racial or religious hatred, or hatred on the ground
of sexual orientation, constitutes an aggravating circumstance for sentencing. 632 Similarly,
a new Norwegian Penal Code, which comes into force in 2012, stipulates harsher
sentences for hate crimes in general and mentions as aggravating circumstances crimes that
had its origin in inter alia, “homosexual or lesbian orientation, disability or other
circumstance related to groups of people requiring a special level of protection.” 633
The most common model in European hate crimes legislation is to let the aggravating
element apply generally, that is, to all penalized action under criminal law, though there
are also countries where the aggravating factor only applies in a defined set of criminal
offences. 634
Sex/gender and health status of the victim are also sometimes included in the list of
protected grounds, as in the Netherlands and Spain, respectively (see below). To
explicitly include health status implies that contempt for a person’s real or perceived HIVstatus
can be an aggravating circumstance similar to other bias-motivated crimes, which
has relevance for sexual health. While gender is included in some provisions, there is so far
no European law that explicitly includes hatred for a person’s gender identity in the list of
biases that may render harsher punishment, though several countries make their lists of
biases non-exhaustive. 635 The general Serbian anti-discrimination law (which is not a
criminal law statute), includes gender identity as one of the “personal characteristics” that
are protected by the law. 636 Its Article 13 lists “severe forms of discrimination” and
specifies that discrimination is to be considered severe if it “involves an act punishable by
law, predominantly or solely motivated by hatred or enmity towards the aggrieved party on
the grounds of a personal characteristic of his/hers.” 637 This suggests that crimes motivated
by gender identity biases (as well as biases towards real or perceived sexual orientation)
will indeed be judged more severely than if the motive had been absent. However, the
author has not been able to obtain information on Serbian responses to hate crimes more
at http://fra.europa.eu/fraWebsite/material/pub/comparativestudy/FRA_hdgso_part1_en.pdf, and Human
Rights First, Violence Based on Sexual Orientation and Gender Identity Bias (2008) p. 11, available at
http://www.humanrightsfirst.org/pdf/fd/08/fd-080924-lgbt-web2.pdf. Both sites last visited on 8 March 2010.
632 Law 3719/2008, entered into force in November 2008. Information from the Greek Permanent Mission to
the OSCE in 2009, as described in OSCE, Office for Democratic Institutions and Human Rights (ODIHR),
Hate Crimes in the OSCE Region – Incidents and Responses. Annual Report for 2008 (November 2009).
Available at http://www.osce.org/publications/odihr/2009/11/41314_1424_en.pdf. Last visited on 8 March
2010.
633 According to information in Norwegian on Norwegian Department of Justice, available at
http://www.regjeringen.no/nb/dep/jd/tema/lovarbeid/faktaark-strengere-lovbestemmelser-omfo.html?id=499724.
Last visited on 8 March 2010. Translation is my own.
634 According to FRA 2008, p. 121.
635 See, inter alia, Swedish Penal Code, Chapter 29, §2(7), stating that aggravating circumstances are when
the motive of the crime was to aggrieve a person or a group of people “by reason of race, colour, national or
ethnic origin, religious belief, sexual orientation or other similar circumstance,” and the Finnish Penal Code,
Chapter 6, § 5, which, while not mentioning neither sexual orientation nor gender identity, states that the
punishment will be more severe when the crime has been committed against a person “belonging to a
national, racial or ethnic population group or any other such group and it has been committed due to the
membership of the group.” Translation of both statutes (from Swedish) is my own.
636 Zakon protiv diskriminacije, the Law on the Prohibition of Discrimination, unofficial translation by Labris
Serbia. See for more information about this law Chapter 1A: Non-discrimination on account of sex, sexual
orientation, gender identity, marital status, and HIV-status.
637 Ibid, Article 13, p. 7.
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