Monitoring Hate Crime - CEP, the European Organisation for ...

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Murder or homicide as well as bodily injury, damage of property, offensive graffiti, insult, intimidation, vandalism, obscene telephone calls etc. Victim of “hate crimes” can be a person, a group of persons, an organisation, a state or religious institutions. 3 All “hate crime” consists of criminalized acts or omissions that become “hate crimes” by the subjective motivation of the offender only and it is just the motivation of the offender that is generally so extremely difficult to recognize and to prove. Only in some cases circumstantial evidence will make the offender’s intent obvious. Often a background investigation of the accused or eyewitness reports of the crime are the only means to detect the offender’s intent. That is even more a weak basis as legislators in some countries (United States of America, England and Belgium) are convinced that if an offence was motivated by hatred it is automatically a qualified offence that must be punished with more hardship than ordinary offences. But is it correct indeed, to reproach somebody extra for his or her motives In literature and by practice there are different answers given to this question in Europe. In the absence of clear definitions and common criteria about what the motives must be like to qualify an ordinary offence to become a hate crime a lot of doubts and uncertainties arise. Furthermore subjective motives are judged by the subjective opinions of the police and the public prosecutors 4 who have to decide whether the offence committed was a “hate crime” or not. The “hate crime concept” cannot offer legal certainty 5 and thus it is not in conformity with the principle of legality. 6 Obviously this is a major problem and an argument against adopting the term “hate crime”. The importance of this avoidance is stressed by the not less important circumstance that the term “hate crime” points so strongly in the direction of rather spectacular incidents of violent crime. In reality however, there is a high number of not at all spectacular discriminatory offences disturbing public peace as well as the well-being of those becoming victims of criminal and other discrimination, while the extent of intense racist violence and crime is according to empirical research relatively moderate. 7 The considerable difference between the American hate crime concept and our criminal discrimination concept is the result of the fact that in America the importance given to freedom of speech does not allow the creation of something like our concept of specific 3 See for example 422.6 California Penal Code 4 Ch. Brants, R. Kool, A. Rignalda, Strafbare discriminatie, Willem Pompe Instituut voor Strafrechtspleging, Universiteit Utrecht; WODC, Ministerie van Justitie, 2007, p. 240. 5 Rechtssicherheit. 6 Ch. Brants, R. Kool, A. Rignalda, Strafbare discriminatie, Willem Pompe Instituut voor Strafrechtspleging, UU, WODC, Ministerie van Justitie, 2007, p. 239. 7 Ch. Brants, R. Kool, A. Rignalda, WODC, Ministerie van Justitie, Strafbare discriminatie, p. 246. 2
criminal discrimination. There must happen spectacular incidents indeed, before the freedom of speech can be affected, may it just be indirectly. There is also a third reason pleading against the term “hate crime” namely the inevitable relation of reactions and actions. In the case of “hate crime” the term suggests something extraordinary mean and wrong and automatically causes a subconscious urge to use corresponding reactions that can easily be overreactions. The risk of overreaction might not be extremely high in prosecuting and sentencing, but possibly in connection with detecting activities by the police and even more in reporting about “hate crime” in the media. The last being of great influence on public opinion and able to cause unrealistic, eventually even very exaggerated views that can bring on commotion, feelings of insecurity and hostility against certain groups in society. These emotions can also result in aggression and violence, perhaps also in feeling the need of making one’s own justice, all reactions that are a threat for community life and therefore must be prevented. In the title of this paper I conformed with the title of this conference, although I am convinced that it is more adequate and not only from a legal, but also from a psychological point of view better to use the term “criminal discrimination” instead of the term “hate crime”. 3. What is Criminal Discrimination 3.1 Criminal Discrimination as defined by the Dutch Penal Code In the Dutch Penal Code several important terms are defined in the Art. 78 – Art. 90octies. Art. 90quater explains what the meaning of “discrimination” is. It reads as follows: “Discrimination or to discriminate must be understood as every kind of distinction, every exclusion, restriction or preference that has the aim or can have the consequence that the recognition, the use or the practice on equal terms of human rights and fundamental political, economic, social or cultural freedoms or of liberties in other fields of social life is, undone or affected” (Art. 137c – Art. 137g , Art. 429 quarter Dutch Penal Code). 8 In the Art. 137c – Art. 137g mainly the following is criminalized: 8 Art. 90quater: “Onder discriminatie of discrimineren wordt verstaan elke vorm van onderscheid, elke uitsluiting, beperking of voorkeur, die ten doel heeft of ten gevolg kan hebben dat de erkenning, het genot of de uitoefening op voet van gelijkheid van de rechten van de mens en de fundamentele vrijheden op politiek, economisch, sociaal of cultureel terrein of op andere terreinen van het maatschappelijke leven, wordt teniet gedaan of aangetast.” 3
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