Laws against hate crime are in place, imposing increased penalties for bias motivation, and diverse services are available for victims. But are these measures enough?
There are two major catches. Only a fraction of victims report hate-motivated harassment and violence to the police. Moreover, even when they do, police officers do not always flag them as hate crimes. Some may not recognise certain incidents as stemming from prejudice. Others may simply lack the necessary practical tools, such as incident reporting forms, that allow racist motivation to be noted – or the inclination to provide information not always deemed obligatory.
This means these hate crimes remain unidentified or unrecorded – and thus un-investigated, unprosecuted, uncounted and, ultimately, invisible.
As the European Court of Human Rights (ECtHR) has consistently held, Article 14 of the European Convention on Human Rights (ECHR) imposes a positive duty on state authorities to render visible the bias motivation of a crime. Furthermore, Article 22 of the Victims’ Rights Directive obliges EU Member States to provide a timely and individual assessment of victims’ protection needs to identify whether a victim’s vulnerability requires taking special measures to avoid secondary or repeat victimisation, intimidation or retaliation. In the context of this individual assessment, as reported in previous FRA reports, particular attention has to be paid to victims who have suffered a crime with a bias or discriminatory motive that could be related to their personal characteristics. Hence, both in investigating a crime and in assessing victims’ vulnerability, the police must seek to uncover these motives.
If the police overlook evidence of bias motivation, it is unlikely that it will be identified later in the criminal justice process, and hate crime laws cannot be given effect in court. Identifying and recording bias motivation is also essential for prevention purposes, a core police function.
At present, guidance supporting police officers to systematically evidence bias motivation is lacking in many countries. Where this guidance does exist (15 Member States), it varies across the EU, both in terms of its comprehensiveness and its public availability. The evidence in this report shows that only 13 Member States have lists of bias indicators that police officers can use to identify and start to evidence potential bias motivation(s) underlying a reported offence. Eighteen Member States have made the choice to flag hate crime either in existing systems or using specific additional forms.
As FRA’s reports repeatedly highlight, the collection of detailed and disaggregated data on hate crime – at minimum, by bias motivation and by type of crime – is necessary to monitor the effectiveness of the police response to the phenomenon, and to prepare effective and targeted policies. Publication and dissemination of, and easy access to, the data all help to assure victims and communities that hate crime is taken seriously and sends a message to the public that hate crime is monitored, addressed and not tolerated.
Of the 19 EU Member States that publish data on recorded hate crime, only 15 disaggregate these data by different bias motivations. Some states publish specific reports on hate crime, providing information on the circumstances of the offenses, which population groups are most at risk of suffering violent offenses, and levels of satisfaction with the police’s response. Publishing and disseminating specific reports on hate crime improves transparency and contributes to combating hate crime effectively, including by raising awareness of the phenomenon.
It is well established by FRA surveys and other research that the majority of hate crimes are not reported to the police. Designing crime victimisation surveys that include hate crime-specific questions would allow authorities to shed light on the ‘dark figure’ of crime – that is, the number of crimes that are not reported to the police – and to understand victim experiences, trends and emerging issues. Nine Member States carry out regular victimisation surveys that include questions on experiences with hate-motivated crime and violence. Other Member States publish hate crime reports presenting the number of police reports with identified hate crime motives, and the number of hate crimes reported in national victimisation surveys, including the percentage of crimes reported to the police. This allows law enforcement and policymakers to understand the reporting gap and develop measures to address it.
The EU High Level Group on countering Racism, Xenophobia and other forms of intolerance acknowledged the importance of effective engagement with civil society organisations in the areas of training, victim support and hate crime recording. These positions are underpinned by a range of international norms and standards relating to the importance of civil society organisations’ participation in the decision making of public authorities (Article 25 of the International Covenant on Civil and Political Rights, ICCPR), their contribution as an important source for ‘evidence-based policymaking’ (European Council Guidelines on Human Rights Defenders), and the specific need to build partnerships with civil society to address racism, xenophobia, discrimination or related intolerance (OSCE Annex to Decision No. 12/04, Permanent Council Decision No. 621).
Investing in cooperating on hate crime recording and data collection can help to improve the comparability and compatibility of recording methodologies and, ultimately, lead to tangible improvements for victims of hate crime and their communities. This report provides various examples of systematic cooperation between law enforcement agencies and civil society organisations in 10 Member States, upon which Member States can draw.
The prevailing organisational culture heavily influences law enforcement responses to victims and communities. In hierarchical systems, such as law enforcement agencies, the highest-ranking officers will generally set the tone, which lower-ranking officers are expected to follow. In addition to political will, the higher levels of the law enforcement hierarchy must first embrace and acknowledge their commitment to countering hate crime and the importance of properly recording such crime. They then need to communicate this commitment to ‘the rank and file’ and implement it. This could be achieved through cultivating a culture of human rights within law enforcement agencies. FRA’s surveys, as well as research with crime victims and criminal justice professionals, suggest that creating a culture of policing based on cooperation, transparency and accountability could improve public confidence in the police and encourage victims to report crime.