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

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