ODIHR Helps States to Tackle Hate Crime with New Legal Guidelines

Crimes that target individuals on the basis of racial, religious or other types of group identity are unacceptable in a free and democratic society. But for a country's judicial system to send this important message to society, it first requires a solid legal basis for dealing with hate crime.

The OSCE Office for Democratic Institutions and Human Rights (ODIHR) is drafting legislative guidelines on hate crime that will help states develop such a legal basis. They will include a general overview of the issues related to hate crime, as well as a technical section aimed particularly at legislators and policy makers. The guidelines will also be useful to prosecutors, judges and NGOs.

"The project aims first of all to raise the profile of the idea of hate crime, which is a concept that is often misunderstood," explains Nasrin Khan, ODIHR Legal Adviser and co-drafter of the guidelines. "Most countries have some form of regulation of hate speech, but don't have specific legislation on physical hate crime - most hate crimes are treated like any other crimes."

A crime like any other?

There is increasing recognition that hate crime should be treated differently because hate crimes tend to arise in the context of more widespread intolerance in society. The impact of such crimes goes beyond the immediate victim, affecting the wider group or community. General intolerance can also affect the attitudes of police and prosecutors, and so hate crimes may not be treated as seriously as - let alone more seriously than - other crimes.

Hate-crime legislation is therefore first of all an important symbol. Secondly, the legislative process encourages discussion of the issue, which helps public understanding of what hate crime is. Having hate crime enshrined in law gives targeted individuals and groups leverage if the law is not properly applied. Finally, it enables the collection of more accurate data on hate crime.

One reason for the lack of data is that countries are often reluctant to admit that they have a problem with intolerance, hence even where bias-motivated graffiti, vandalism or assaults occur, they are not recorded as hate crimes. Instead, it often takes an extreme case to prompt action, such as the murder of black teenager Steven Lawrence in the UK, which resulted in a wide-scale review of racism within the police force because of the way it handled the initial investigation.

Similarly, last year Croatia was censured by the European Court of Human Rights for failing to conduct a proper investigation, including examining possible racial motivation, in the case of Semso Secic, a Romani man who was brutally attacked in 1999. In 2006, Croatia introduced a new hate crime law, which was used for the first time in 2007, and it has also participated in the ODIHR's hate crime training programme for law-enforcement officers.

Preparing the guidelines

The project was launched with a roundtable in December last year, attended by prosecutors and representatives of ministries of justice and NGOs from across the OSCE region. A working group that emerged from this meeting will review the draft guidelines at a second meeting in May.

"The guidelines are deliberately non-prescriptive, because of the variety of legal systems within the OSCE area," says Khan. "We don't propose a model law - in fact dealing with hate crime doesn't always mean changing legislation. It is also important to see how existing legislation can be applied."

Different legal approaches

Some states, such the US and the UK, have legislation creating substantive hate-crime offences. A more common approach is "sentence enhancement", which means that a more severe sentence can be given for a crime if it is shown to have a hate element. Other countries have enhancement for "heinous crimes", which could be applied to hate crimes, although in practice this rarely occurs.

With some hate-crime legislation, it is necessary to prove "hate" in order to prove the offence. This can make the prosecutor's task more difficult.

"In the US, there have been some cases in which gay men have been targeted for robbery, not necessarily because of 'hate', but rather because the offenders see them as less likely to fight back or to report the crime," explains Allison Jernow, a US prosecutor with more than seven years experience of prosecuting hate crimes and co-drafter of the guidelines. "The offenders, because of certain prejudices or stereotypes, see their victims as vulnerable. In order to capture such crimes, legislators have responded by drafting laws that focus on the discriminatory selection of the victim."

Other issues to be considered when drafting hate-crime legislation include how to define the groups that may be targets of hate. Definitions that are too broad or vague can mean that the laws end up being used to protect groups that were never intended to be covered, such as members of the political elite.

ODIHR also participated last month in a regional conference in the Netherlands on hate crime organized by the International Association of Prosecutors (IAP). Delegates heard from Dutch and other European prosecutors, including the prosecutor involved in the case of the 2004 murder of film-maker Theo van Gogh. The conference was held in the run-up to the release of the controversial Geert Wilders film Fitna, which was already the subject of complaints of incitement to hate or violence. Members of the IAP will be contributing their practical experience to the guidelines, and enhancing co-operation with ODIHR on this issue.

The guidelines will form the benchmark for future ODIHR legal reviews of hate-crime legislation. They will also be used in training courses for prosecutors, which are planned for later in the year.