Making hate crime visible: acknowledging victims’ rights

Presentation by Henri Nickels, on behalf of Morten Kjaerum – FRA Round table on hate crime – European Parliament – 29 November 2012

I am speaking to you today on behalf of Morten Kjaerum, the director of the EU’s Agency for Fundamental Rights.

Threats, violence and crimes motivated by racism, xenophobia, religious intolerance or by a person’s disability, sexual orientation or gender identity – often referred to as ‘hate crime’ – are a daily reality throughout the European Union, as data collected by FRA and other international organisations such as the OSCE Office for Democratic Institutions and Human Rights, present here today, consistently show.

This state of affairs is confirmed by two reports just published by FRA. The first is entitled Making hate crime visible in the European Union: acknowledging victims’ rights, and the second EU-MIDIS Data in Focus 6: Minorities as victims of crime.

Rather than summarising the findings of these reports, my presentation will focus on the specificity of hate crime and what kind of response it requires from policy actors, law enforcement agencies and criminal justice systems.

Despite the efforts and commitments of EU Member States to counter discrimination and intolerance, including manifestations of hate crime, there are indications that the situation is not improving.

On the contrary, over the last few years we have witnessed continued and renewed violations of the fundamental rights of people living in the EU through verbal abuse, physical attacks or murders motivated by prejudice. The current situation in Greece is a case in point; and the recent statement made by a Hungarian member of parliament that a list should be drawn up of Jewish MPs and politicians in Hungary is another telling example.

This abuse affects EU society in all its diversity. Members of ethnic groups, national minorities, immigrants, visible minorities, people practising their religions, those with different sexual orientations or gender identities or people with disabilities have all fallen victim to hate crime.

The extent of the prejudice and the damage it causes to its victims, to their relatives and to society as a whole make the consideration of an appropriate response by EU Member States ever more urgent.

Indeed, hate crimes are not like any other crimes. This is the case because they do not only harm victims, but also their friends, relatives and the communities they belong to, identify with or, importantly, those they are identified with.

In this way, hate crimes are prejudicial to people’s fundamental rights, particularly those relating to human dignity and to non-discrimination. Because of this, hate crimes are also prejudicial to society at large.

The specificity of hate crime has implications for how policy actors, law enforcement agencies and criminal justice systems should deal with this type of crime.

Indeed, it is the duty of EU Member States to protect the fundamental rights of people vulnerable to hate crime and to see to it that those who violate these rights are brought to account.

This is confirmed by the European Court of Human Rights, which, over the last decade, has consistently argued that victims of hate crime have the right not only to be generally acknowledged as victims of crime, but also as having suffered victimisation specifically because of the biased attitudes of an offender or, very often, offenders.

In addition, under well-established case law of the Court described in FRA’s report Making hate crime visible in the European Union, Article 14 of the European Convention on Human Rights, which pertains to non-discrimination, is to be read as obliging EU Member States to render visible bias motives leading to criminal offences, and to do this by highlighting and punishing hate crimes more severely than others.

Hate crimes stress a link between an offence and a feature the offender attributes to the victim. Hate crime could therefore be understood as follows: a person is victimised for being X, where X can be any of the grounds of discrimination listed in Article 14.

In other words, victims of hate crimes are victimised for what they are perceived to be.

Here, it must be stressed that victims of hate crime need not possess any of the characteristics attributed to them. It is sufficient for offenders to believe their victims possess these characteristics.

Any analysis of hate crime therefore has to take into account the meaning of perpetrators’ actions and what impact this meaning has on social identities. Hate crimes cannot be understood unless one listens to what they say, with all forms of hate crimes essentially conveying a common message.

What they express is that some persons may be labelled as X – whether they like it or not – and that the rights of these people matter less because they are X. This message is both debasing and dangerous.

It must also be stressed that those who commit hate crimes are punished for what their actions express, not for what they think. The thoughts, sentiments or feelings of offenders are irrelevant, as long as they are not transformed into actions and do not constitute incitement to hatred.

Another specificity of hate crime is that it transcends the context of the individuals directly involved. It relates to categories – whether real or imagined – of individuals divided and shaped by a particular societal discourse of bias. Homophobic, just like racist and other crimes motivated by prejudice happen between ‘us’ and ‘them’ rather than just between ‘me’ and ‘you’.

In this way, hate crime does not ‘speak’ or matter only to the immediate victim. It also matters to people who sympathise with the offender and whose biased attitudes the offender confirms and reinforces. It also matters to ‘others’ who understand that they are at risk of similar labelling and victimisation.

And both audiences are looking to the state for a reaction: will the police and the courts brand and forcefully reject hate crimes as particularly inacceptable, or will they overlook the discriminatory component?

The European Court of Human Rights gives a clear answer: states may not overlook bias motivation because if they do, the message sent by offenders would go unchallenged.

Despite these obligations and the binding nature of case law from the Court, there remains a lack of confidence among victims and witnesses of hate crimes that the authorities are able to afford them the protection they are guaranteed.

This often makes them reluctant to report hate crimes, whether to law enforcement agencies, the criminal justice system, non-governmental organisations or victim support groups. The result is that many hate crimes remain unreported, unprosecuted and therefore invisible.

This brings with it a risk that the rights of victims of crime are not fully respected or protected, which would mean EU Member States were failing to uphold the obligations they have towards these people.

As a result, perpetrators can carry out their actions with relative impunity.

Against this backdrop, consider the findings relating to racist crime of the European Union Minorities and Discrimination Survey – EU-MIDIS – presented in the Minorities as victims of crime report.

These show that between 57 and 74% of incidents of assault or threat suffered by members of minority or migrant groups in the EU were not reported to the police by their victims, and that between 75 and 90% of incidents of serious harassment were not reported to the police.

It should also be mentioned that expressions of prejudice, violent or otherwise, are often thought to emanate from people with extremist sympathies, especially those associated with the right-wing extremist scene. There is, however, ample evidence to suggest that the perpetrators of such offences are drawn from across society.

For instance, the same report shows that most incidents of assault or threat suffered by members of minority or ethnic groups in the EU27 were not committed by members of right-wing extremist groups. Only 13 % of Turkish victims and 12 % of Roma victims of assault or threat, for example, identified perpetrators as members of these groups.

The almost exclusive focus on the behaviour of extremists in some quarters means that ‘everyday’ forms of prejudice and abuse – such as the bullying of people with disabilities to name but one example – remains unnoticed and therefore unaddressed.

It must be remembered that hate crime reflects inbuilt tendencies and predispositions of societal structures. It is therefore misleading to picture offenders of hate crimes as belonging to ‘extremist’ groups that exist only at the margins of society. The widespread nature and ‘normality’ of hate crime must instead be highlighted.

However, when trying to establish the extent of hate crime, EU institutions, Member States and other interested parties are faced with the problem that much of the official data pertaining to hate crime fails to accurately reflect the reality on the ground.

Not only do official data collection mechanisms tend to underestimate the incidence of hate crime, but they also often focus on a narrow range of both bias motivations and incident characteristics. Official mechanisms of data collection are understood here as those operated by law enforcement agencies, criminal justice systems and relevant ministries. There is a broad range of official data collection mechanisms on hate crime in the EU, as the Making hate crime visible report shows.

Suffice it to say today that Member States with comprehensive data collection mechanisms – where victims report incidents, law enforcement agencies record them and the criminal justice system prosecutes them – do not necessarily have the highest rates of hate crime. These mechanisms simply record the incidence of hate crime more efficiently and are more transparent when it comes to publishing data.

In contrast, Member States with limited data collection – where few incidents are reported, recorded and therefore prosecuted – can be said to be failing in their duty to tackle hate crime.

This is not to criticise Member States unfairly. Indeed, there are many challenges inherent to recording data on hate crime. The principal difficulties relate to the nature of what is recorded; the time frame of that recording; changes in data collection mechanisms from one year to the next; changes in the law that necessitate changes in data collection; the socio-historical context of data collection in EU Member States; and, the degree to which EU Member States acknowledge and effectively respond to hate crimes.

Despite these difficulties, states in the EU and beyond must strive to improve their data collection mechanisms, reaching for comprehensive status. It is only by making hate crime truly visible that the rights of victims of crime can be fully acknowledged.

 

Conclusions

To conclude, hate crimes create an ‘us and them’ mentality that does tremendous psychological damage. They undermine the basic democratic tenets of equality and non-discrimination. Hate crimes thus harm not only the victim, but also other people belonging to the same group – many of whom are terrified that they will become the next target – and society as a whole. To counter this, the EU and its Member States need to ensure both that such crimes are made visible, and that offenders are made to answer for the damage they have done.

The EU and its Member States can counter hate crime and address the related fundamental rights violations by making both of them more visible and by holding perpetrators accountable.

This entails encouraging victims and witnesses to report crimes and incidents, while increasing their confidence in the ability of law enforcement agencies, criminal justice systems and the state to deal with this type of criminality decisively and effectively.

This would mean an end to applying restrictive criminal law definitions and interpretations of hate crime, which limit the recognition of what constitutes hate crime by the state. Restrictive definitions also lead to a reduction in the depth and breadth of official data collection mechanisms on hate crime.

If official data collection mechanisms are unable to capture the full range of victimisation experiences, the net effect can only be that the incidence of hate crime is under-recorded. This, in itself, will translate into low numbers of prosecutions, thereby limiting opportunities for victims of hate crime to seek redress and to experience real justice.

To sum up: making hate crime visible and acknowledging the rights of victims of crime entails taking action at three levels: legislation, policy and practice.

At the level of legislation, this means recognising hate crime, the bias motivations underlying it and the effect it has on victims in both national legislation and European law.

At the policy level, it means implementing policies that will lead to collecting reliable data on hate crime that would record, at a minimum, the number of incidents of hate crime reported by the public and recorded by the authorities; the number of convictions of offenders; the grounds on which these offences were found to be discriminatory; and the punishments served to offenders.

At the practical level, it means putting instruments in place to encourage victims and witnesses to report incidents of hate crime as well as mechanisms that would show that authorities are taking hate crime seriously.

Thank you for your attention.