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improve the methods of registration of and criminal policy on criminal discrimination, the main means being: firstly a better cooperation of the partners, i.e. the police, the Department of Public Prosecution, the local councils and the antidiscrimination bureaus, secondly a new common “Instruction Discrimination” (Aanwijzing Discriminatie) and thirdly gathering more information on discrimination that takes place on internet. 4. Some Comparative Law Annotations Above, in connection with the presentation of the subjects “hate crime” and “criminal discrimination” we already talked about the important differences between the continental, the American and to a somewhat lesser extent, the English legal system, most important difference being in the understanding of the principle of legality in the sense of nullum crimen sine lege, (no crime without a statutory regulation) and nulla poena sine lege, (no sentencing without a statutory regulation). Most differences between the legal families have historical reasons. Our principle of legality derived as the Latin words already made obvious, from Roman law. The extent of the Roman law influence on the different legal systems of the world is until our times one of the main reasons for the existing differences. Mainly for political reasons the influence of Roman law on the development of German law was more intensive than in other countries. In connection with this fact we should, here in Berlin, think for a moment of one of the greatest German law professors, Friedrich Carl von Savigny (1779-1861), who worked in this town, however in the field of private law. Speaking in modern terms von Savigny was a “great fan of Roman law” and the influence of his outstanding work on the German Civil Code resulted in the fact that German private law still in our days is so strongly related to Roman law. Here we have one example to show how differences between legal systems can come to existence by chance. The reasons for the differences between the regulations of specific discrimination also mainly have historical backgrounds and they are so great that it is hardly possible to compare the regulations of various countries in a satisfying way. The same is true for the specific regulations on blasphemy and the spreading of blasphemous writings regulated for example in the Art. 147 12
and 147a Dutch Penal Code, religion-related discriminatory offences that should also be discussed when focusing on criminal discrimination. In the framework of this paper there is no time to do more than just pay attention to them. However, since religion returned into the public domain these regulations, that were already almost forgotten since years received an unforeseen renaissance and actuality. Already before, but to a greater extent after the murder of Theo van Gogh in Amsterdam in November 2004 they were discussed again and at the same time became objects of interesting research. 31 5. Conclusions 1) It is advisable to use the term “criminal discrimination” instead of the term “hate crime” not only for legal – but also for psychological reasons. Furthermore, choosing the term “criminal discrimination” we also take the advantage to construct a link with discrimination in general. 2) Monitoring criminal discrimination regularly and in detail is needed to gather information in order to develop not only adequate preventing and repressing measures but also to evaluate the measures and their effectiveness in practice. 3) Research to learn more about the quantity and quality of the dark number of criminal discrimination should be initiated in the short run. 4) Continental penal law has not the task to tackle wrong motives, beliefs, opinions etc. Only at the moment that these inner ideas become manifest in an act or omission that is criminalized by law, penal law comes in action. 5) The force of historically grown principles of law and elements of legal culture should not be underestimated. Overruling them will have negative consequences for the effectiveness of the new rules and the old rules that stay in existence. February 2008 31 B.A.M. van Stokkom, H.J.B.Sackers, J.-P. Wils, Godslastering, discriminerende uitingen wegens godsdienst en haatuitingen. Een inventariserende studie, WODC, Onderzoek en Beleid 248, Boom 2007. 13
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