Last Updated on August 11, 2019 by LawEuro
Handbook on European non-discrimination law – Contents
Key point
- Crimes motivated by prejudice, known as hate crimes or bias-motivated crimes, affect not only the individuals targeted, but also their communities and societies as a whole.
Crimes such as threats, physical attacks, property damage or even murders motivated by intolerance towards certain groups in society are described as hate crimes or bias crimes. Hate crime can therefore be any crime that targets a person because of their perceived characteristics. The essential element distinguishing hate crimes from other crimes is the bias motive.
The other characteristic feature of hate crimes is that the impact of the offence extends beyond the actual victims. It affects the whole group with which that victim identifies himself or herself and can cause social division between the victim group and society at large. Therefore, it poses particular danger to society. For this reason, hate crimes should not be treated like ordinary crimes. To properly deal with hate crimes, the bias motivation behind the act of violence must be revealed. Hate crimes should thus be recognised in a legal order as a special category of crimes. Special training, manuals, information and other appropriate tools should be provided to improve the capacity to investigate and judge hate crimes of persons (police officers, prosecutors, judges) dealing with them.
Under EU law, it is in principle established that hate crimes require a specific criminal law response.[187] Although the non-discrimination directives do not oblige Member States to use criminal law to address acts of discrimination, a Framework Decision of the European Council obliges all EU Member States to provide for criminal sanctions in relation to incitement to violence or hatred based on race, colour, descent, religion or belief, national or ethnic origin, as well as dissemination of racist or xenophobic material and condonation, denial or trivialisation of genocide, war crimes and crimes against humanity directed against such groups.[188] Member States are also obliged to consider racist or xenophobic intent as an aggravating circumstance.
The only EU legal instrument that currently protects lesbian, gay, bisexual, transgender and intersex (LGBTI) victims of hate crime is the EU’s Victims’ Rights Directive.[189] It includes the grounds of sexual orientation, gender identity and gender expression when recognising the rights of victims, helping to ensure that victims of crime receive appropriate information, support and protection, and are able to participate in criminal proceedings. Moreover, states are obliged to carry out an individual assessment to identify specific protection needs of the victims who have suffered a crime committed with a bias or discriminatory motive (Article 22 of the directive).
It should be stressed that a victim does not have to be a member of the group at which the hostility is targeted. Through the concept of discrimination by association, protection is also provided to persons only assumed to have a particular characteristic or otherwise associated with a group holding particular characteristics.
Under the ECHR, the prohibition of discrimination entails an obligation to combat crimes motivated by racism, xenophobia, religious intolerance or by a person’s disability, sexual orientation or gender identity. Furthermore, states have a positive obligation to protect individuals against violence, specifically when they were informed about the risk of lethal or serious bodily harm. The ECtHR has stated in a number of cases[190] that treating violence and brutality arising from discriminatory attitudes on an equal footing with violence, where there were no such overtones, would be turning a blind eye to the specific nature of acts that were particularly destructive of fundamental rights. It also emphasised that, while the choice of appropriate means of deterrence was in principle within the state’s margin of appreciation, effective deterrence against serious acts required efficient criminal law provisions. The ECtHR has also ruled that states have an obligation to investigate the existence of any possible discriminatory motive behind an act of violence and that overlooking the bias motivation behind a crime amounted to a violation of Article 14 of the ECHR.[191] This approach extends the protection offered by the ECHR to members of vulnerable groups who are victims of hate crime, regardless of whether that abuse is perpetrated by state agents or third parties.[192] In other words, violence with underlying discriminatory motives constitutes an aggravated form of a human rights infringement. This should be reflected in the way investigations are conducted, and victims supported and protected.
Example: In Identoba and Others v. Georgia,[193] a case concerning a homophobic attack against the participants of a peaceful assembly of LGBT associations, the ECHR confirmed that ‘hate crime’ committed against individuals based on sexual orientation amounted to a violation of Article 3 of the ECHR taken in conjunction with Article 14. The ECtHR emphasised that the Georgian authorities had known or ought to have known the risks surrounding the demonstration, considering the various reports on the situation of lesbian, gay, bisexual and transgender people in Georgia. Since the police protection had not been provided timely and adequately, the authorities failed in their obligation to provide adequate protection.
Example: In M.C. and A.C. v. Romania,[194] the applicants were attacked by a group of people on their way home from an annual gay pride march. They were subjected to homophobic abuse and were punched and kicked. The ECtHR found that the authorities had failed to take into account possible discriminatory motives in the investigation of a homophobic attack and concluded that there had been a violation of Article 3 (procedural limb) read together with Article 14 of the ECHR.
Example: In Virabyan v. Armenia,[195] the applicant, a member of the opposition party was arrested during an anti-governmental demonstration. He was subsequently taken to the police station, where he sustained severe injuries. He complained that he had been ill-treated in custody on account of his political opinion. The ECtHR held that the state had failed to examine a possible causal link between the alleged political motives and the abuse suffered by the applicant. Therefore, it found a violation of Article 14 of the ECHR taken in conjunction with Article 3 in its procedural limb.
Example: In Nachova v. Bulgaria,[196] two Roma men were shot dead while fleeing from military police who sought to arrest them for being absent without leave. A neighbour of one of the victims claimed that, immediately following the shooting, the officer who had killed the victims shouted ‘You damn gypsies’ at him. The ECtHR found that the state had violated the right to life of the victims (under Article 2 of the ECHR), not only substantively, but also procedurally, for failing to adequately investigate the deaths. It was found that the failure to investigate also amounted to a violation of Article 2, in conjunction with the right to be free from discrimination, since the State was under a duty to specifically investigate possible discriminatory motives.
Example: The Škorjanec v. Croatia[197] case concerns racially motivated acts of violence. The ECtHR specified that the obligation on the authorities to investigate possible racist motives concerns not only acts of violence based on a victim’s actual or perceived personal status or characteristics, but also those based on a victim’s actual or presumed association or affiliation with another person who actually or presumably possesses a particular status or protected characteristic. The ECtHR noted that the prosecuting authorities’ relied on the fact that the applicant herself was not of Roma origin and refused to examine whether she was perceived to be of Roma origin by the attackers. The authorities failed to take into account and establish the link between the racist motive for the attack and the applicant’s association with her partner, who was of Roma origin. As a result, ECtHR found a violation of Article 3 under its procedural aspect in conjunction with Article 14 of the ECHR.
In a series of cases, the ECtHR considered gender-based violence as a form of discrimination against women.[198]
Example: In Eremia v. the Republic of Moldova,[199] the first applicant was a victim of domestic violence at the hands of her husband, a police officer.
Their two daughters, the second and third applicants, regularly witnessed the violence, which affected their psychological well-being. The ECtHR held that the failure of the authorities to protect the applicants reflected the fact that they did not appreciate the seriousness of violence against women. The authorities’ lack of consideration for the problem of violence against women in the Republic of Moldova amounted to discriminatory treatment based on sex in violation of Article 14 in conjunction with Article 3 of the ECHR.
Example: In M.G. v. Turkey,[200] the applicant was beaten by her husband during their marriage and threatened by him during their divorce. She complained about the lack of protection by the authorities from such domestic violence, and of systemic and permanent violence against women in Turkey. The ECtHR found that, while the applicant had divorced in 2007, until the entry into force of a new law in 2012 she had not had effective protection from her ex-husband, despite her numerous requests submitted to the national courts. Consequently, the ECtHR found a violation of Article 14 in conjunction with Article 3 of the ECHR.
Example: In Halime Kiliç v. Turkey,[201] the applicant’s daughter had obtained protection orders against her violent husband. However, the authorities had not taken effective measures to protect her and she sustained fatal injuries. The ECtHR found that the failure of the national authorities to punish her husband for non-compliance with the protection order deprived them of their effectiveness and he had continued to insult her with impunity. Consequently, the ECtHR found a violation of Article 14 in conjunction with Article 2 of the ECHR.
In addition to the obligation of investigation, states have a duty to prevent hatred- motivated violence on the part of private individuals of which the authorities had or ought to have had knowledge[202] or to intervene in order to protect victims of crime in relation to the acts of private parties.
Example: In 97 Members of the Gldani Congregation of Jehovah’s Witnesses and 4 Others v. Georgia,[203] an ultra-Orthodox group attacked a group of Jehovah’s Witnesses. Although notified, the police did not intervene to prevent the violence. The subsequent investigation was discontinued once the police asserted that it was not possible to ascertain the identity of the defendants. The ECtHR found that the failure of the police to intervene to protect the victims from racially motivated violence and the subsequent lack of an adequate investigation amounted to a violation of Article 3 (the right to be free from inhuman and degrading treatment or punishment) and Article 9 (the right to freedom of religion) in conjunction with Article 14, since it was based on religious grounds, of the ECHR.
Under CoE law, the Convention on preventing and combating violence against women and domestic violence (Istanbul Convention) condemns all forms of discrimination against women.[204]
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187. European Parliament resolution of 14 March 2013 on strengthening the fight against racism, xenophobia and hate crime (2013/2543(RSP)). See also FRA (2012), Making hate crime visible in the European Union: acknowledging victims’ rights, Luxembourg, Publications Office, p. 15.
188. 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 (Framework Decision on racism and xenophobia), OJ L 328, 6.12.2008, p. 55.
189. Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA.
190. See ECtHR, M.C. and A.C. v. Romania, No. 12060/12, 12 April 2016, para. 113.
191. See for example ECtHR, Abdu v. Bulgaria, No. 26827/08, 11 March 2014 discussed in Section 6.3.
192. For example, see ECtHR, R.B. v. Hungary, 64602/12, 12 April 2016, para. 39.
193. ECtHR, Identoba and Others v. Georgia, No. 73235/12, 12 May 2015, see also Section 4.7.
194. ECtHR, M.C. and A.C. v. Romania, No. 12060/12, 12 April 2016.
195. ECtHR, Virabyan v. Armenia, No. 40094/05, 2 October 2012.
196. ECtHR, Nachova and Others v. Bulgaria [GC], Nos. 43577/98 and 43579/98, 6 July 2005.
197. ECtHR, Škorjanec v. Croatia, 25536/14, 28 March 2017.
198. See also ECtHR, Opuz v. Turkey, No. 33401/02, 9 June 2009, discussed in Section 6.3.
199. ECtHR, Eremia v. the Republic of Moldova, No. 3564/11, 28 May 2013.
200. ECtHR, M.G. v. Turkey, No. 646/10, 22 March 2016.
201. ECtHR, Halime Kiliç v. Turkey, No. 63034/11, 28 June 2016.
202. ECtHR, Đorđević v. Croatia, No. 41526/10, 24 July 2012, paras. 138 and 149, discussed in Section 2.4.2.
203. ECtHR, 97 Members of the Gldani Congregation of Jehovah’s Witnesses and 4 Others v. Georgia, No. 71156/01, 3 May 2007.
204. Council of Europe, Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, CETS No. 210, 2011. See Section 1.1.1.
2.3. Multiple and intersectional discrimination
2.4. Harassment and instruction to discriminate
2.5. Special or specific measures
2.6. Hate crime
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