Role of the judiciary in the protection of procedural rights of hate victims

Antisemitism and Hate

Dr Sławomir Buczma Council of Europe’s response to HC and HS

 European Convention on of 1950 (ECHR)  The Framework Convention for the Protection of National Minorities of 1994 (FCNM) - prohibits and obliges Parties to guarantee persons belonging to national minorities the right of equality before the law and of equal protection of the law.  The Additional Protocol to the Convention on Cybercrime of 2003 aims to harmonise the criminalisation of acts of a racist and xenophobic nature committed through computer systems, such as dissemination of racist and xenophobic material, racist and xenophobic motivated threat, similarly , and , gross minimisation, approval or justification of or crimes against humanity.  Recommendation Rec(2006)8 on assistance to crime victims  Possible future update? EU laws

Article 2 of the Treaty on European Union The EU values respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail. Article 10 of the Treaty on the Functioning of the European Union (TFEU): In defining and implementing its policies and activities, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, , age or sexual orientation Article 83.1 TFEU – EU crimes penalised by establishing minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis, such as terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime. No included. FRAMEWORK DECISION 2008/913/JHA

 COUNCIL FRAMEWORK DECISION 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of and by means of criminal law  Offences concerning racism and xenophobia –intentional conduct directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin: - publicly inciting to violence or hatred, including by public dissemination or distribution of tracts, pictures or other material; – publicly condoning, denying or grossly trivialising crimes of genocide, crimes against humanity and war crimes as defined in Articles 6, 7 and 8 of the Statute of the International Criminal Court (hereinafter ‘ICC’); or – the crimes defined in Article 6 of the Charter of the International Military Tribunal appended to the London Agreement of 8 August 1945  Offences punishable by effective, proportionate and dissuasive criminal penalties FRAMEWORK DECISION 2008/913/JHA

 FD not fully and correctly transposed (REPORT from the Commission of 2014 on the implementation of FD 2008/913/JHA {SWD(2014) 27 final})  All states have transposed Article 1 c) and d) on denial of genocide, although some states did so more broadly and others more narrowly  Full and correct legal transposition of the FD constitutes a first step towards effectively combating racism and xenophobia by means of criminal law in a coherent manner across the EU Hate crime in EU laws

 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  DK – opt-out clause, IE opt-in clause  Victims of hate crime are covered by the Directive  The need to take into account the type, nature and circumstance of the crime while conducting individual assesment of victims (recital 56) Directive 2012/29

❖(a) ‘victim’ means: (i) a natural person who has suffered harm, including physical, mental or emotional harm or economic loss which was directly caused by a criminal offence; (ii) family members of a person whose death was directly caused by a criminal offence and who have suffered harm as a result of that person's death; ‘child’ means any person below 18 years of age Right to receive information from the first contact with a competent authority

(a) the type of support they can obtain and from whom (incl. medical support, specialist support, psychological support, and alternative accommodation); (b) the procedures for making complaints with regard to a criminal offence; (c) how and under what conditions they can obtain protection, including protection measures; (d) how and under what conditions they can access legal advice, legal aid and any other sort of advice; (e) how and under what conditions they can access compensation; (f) how and under what conditions they are entitled to interpretation and translation; (g) any procedures or arrangements available to protect interests of victims who are not residents in a MS where the crimial offence was committed; (h) the available procedures for making complaints where their rights are not respected by the competent authority operating within the context of criminal proceedings; (i) the contact details for communications about their case; (j) the available restorative justice services; (k) how and under what conditions expenses incurred as a result of their participation in the criminal proceedings can be reimbursed. Right to make a complaint

 Victims who wish to make a complaint with regard to a criminal offence are entitled to do so in a language that they understand or by receiving the necessary linguistic assistance  Applying this right is considered as falling within the context of the criminal proceedings and should include situations where authorities initiate criminal proceedings ex officio as a result of a criminal offence suffered by a victim  Victims shall receive written acknowledgement of their formal complaint made by them to the competent authority of a Member State, stating the basic elements of the criminal offence concerned (Article 5) Underreported type of crime

 In the reporting stage many cases are “lost”  Victims do not turn to the police, or reports are withdrawn  On the part of victims: lack of knowledge how to report; lack of knowledge that the crime was a hate crime; distrust in the police; self- for the attack; of re-victimisation, such as retaliation by perpetrators if they report the crime; fear of secondary victimisation during the criminal justice process; feelings of about being victimised; language barriers; fear of being deported in case of undocumented people; disabled people’s weak position in representing their own interests, etc.  On the part of investigative authorities: lack of understanding of what constitutes a hate crime; inadequate recognition of the different victim groups that may be targeted; lack of training in how to interview victims of hate crimes; failure of witnesses to come forward; and institutional discrimination may lead to impunity of perpetrators Underreported type of crime

 On the side of courts: a certain reluctance can be observed to acknowledge motivation behind crimes, unless there is evidence of verbal or written slurs; if the bias motives are not taken into account, courts utterly side and sympatise with perpetrators; mitigating circumstances applied even though no appology or remorse was expressed; etc.  Consequences: • reluctance to report the police because they suffer from feelings of fear, or shame. This makes it particularly stressful for them to speak up; • victims’ lack of awareness of their rights and their lack of awareness of support services available to them – partially due to an actual lack of victim support services; • victims’ lack of trust that the police would treat them in a sympathetic manner;  victims have little confidence in the criminal justice system (FRA, Ensuring justice for hate crimes) Procedural rights

➢ Right to be heard during criminal proceedings and provide evidence. Where a child victim is to be heard, due account shall be taken of the child's age and maturity – rules to be determined by national law (Art. 10) ➢ Rights in the event of a decision not to prosecute (Art. 11) 1. the right to a review of a decision not to prosecute in accordance with their role in the relevant criminal justice system. The procedural rules for such a review shall be determined by national law (ECtHR, Eremiasova & Pechova v. Czech Republic, 16.2.2012 – obligation to provide victims with right to review a decision not to prosecute) 2. If the role of a victim will be established only after a decision to prosecute the offender has been taken, at least the victims of serious crimes have the right to a review of a decision not to prosecute. ECtHR, El-Masri v. Macedonia, No. 39630/09, 13.12.2012 – right to effective review not only in the course of investigation but also in court proceedings. No recognition of the victim status

 Their status as hate crime victims is not always recognised, limiting their access to criminal proceedings and preventing them from fully asserting their rights in the criminal justice process.  Law enforcement and criminal justice bodies sometimes fail to acknowledge or recognise the specific victimisation and resulting needs of hate crime victims, identify and signpost the relevant support needed, and can even outright re-victimize individuals.  In countries adhering to the principle of expediency, where prosecutors have a wider room of maneouvre to decide whether to take a case to court or not, victims rarely have the possibility to represent the charges.  Victims of hate crimes are not always given a chance to oppose the dropping of a case. Should the prosecutor decide to discontinue the case, the victim are not able to press on with the charges. The way forward

 Hate crime victims need to be encouraged to report a hate crime, and if they choose to report, they need help in navigating the criminal justice system; by informing victims about the full range of their rights as victims, supporting them in asserting their rights to the full extent, as well as managing their expectations in terms of the nature of the proceedings;  The need to be listened and heard is also the first step in the long proces of establishing trust to justice and respectful communication both verbal and non-verbal;  The right to contest a decision not to prosecute props up victims position in the criminal proceedings Obstacles to efficient prosecution

❖ No specialised prosecutors tasked with prosecuting hate crimes. ❖ Bias indicators are a good point of departure helping the prosecutor and the judge where to search for circumstantial evidence. ❖ Bias indicators are to be considered from the beginning of the investigation, since the pieces of evidence pointing to the motivation might soon vanish making it close to impossible for the prosecution to prove the bias behind the crime. ❖ Bias indicators might also be revisited by the prosecution when establishing the evidence in hate crime cases Treatment of hate crime victims

 While determining criminal responsibility courts should not limit their activities to establish the base crimes only but also check if a criminal act was committed out of a bias motive  If a court decides not to take into account motivation driven by bias motives and the victim disagrees with this decision, the victim should be given possibility to avail of a legal remedy which could lead to a revision of the court’s decision by a higher court.  Perpetrator’s is not always culmination of justice.  The enhanced sentencing of hate crime offenders sends also a message to potential perpetrators and the public that hate crimes are treated seriously. Victims Support Services

 Support to be provided by victim support services (Article 9): (a) information, advice and support relevant to the rights of victims (incl. on compensation schemes, and on their role in criminal proceedings including preparation for attendance at the trial; (b) information about any relevant specialist support services in place; (c) emotional and, where available, psychological support; (d) advice relating to financial and practical issues arising from the crime; (e) advice relating to the risk and prevention of secondary and repeat victimisation, of and of retaliation.  Victim support services shall pay particular to the specific needs of victims who have suffered considerable harm due to the severity of the crime, providing i.a. shelters or any other appropriate interim accommodation for victims in need of a safe place due to an imminent risk of secondary and repeat victimisation, of intimidation and of retaliation Victims Suport Services

 In many countries, victim support systems are fragmented, underfunded or only developing  Victim support services should combine an understanding of discrimination and of anti- discrimination policies with expertise in criminal justice matters and the situation and rights of victims in criminal proceedings  Raising victims’ awareness of their rights and of available support service belongs also to VSS Procedural rights

 Right to decision on compensation from the offender in the course of criminal proceedings (Art. 16) – within a reasonable time except where national law provides for such a decision to be made in other legal proceedings (Nebenkläger/partie civile/witness)  Rights of victims resident in another Member State (Art. 17) –measures to minimise the difficulties faced where the victim is a resident of a Member State other than the criminal offence was committed, i.e. by taking a statement from the victim immediately after the complaint or by applying provisions on video conferencing and telephone conference calls laid down in the EIO Directive or the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union of 29 May 2000. Secondary victimisation

 The European Crime Prevention Network: “Secondary victimisation refers to the victimisation that occurs not as a direct result of the criminal act but through the response of institutions and individuals. This includes, but is not limited to, not recognising and treating the victim in a respectful manner, an insensitive and unprofessional manner of approaching the victim and discrimination of the victim in any kind.” Secondary victimisation - examples

 A lack of a response, or an unhelpful and denigrating response;  Attributing responsibility for the crime to victims, or claiming the culpability of the victim (victim-blaming);  Minimising the seriousness of a reported hate crime and trivialising the individual experience and consequences;  Denying the victim’s perspective in the assessment and evaluation of the crime, not taking a bias motivation into consideration or dismissing it as irrelevant;  Expressing sympathy and understanding for the perpetrator;  Lacking appropriate knowledge, experience and skills to acknowledge the significance of the victim’s identity for the crime they suffered;  A lack of consideration for individual needs, especially the need for information and justice;  The denial of victims’ rights or victim status. Secondary victimisation

 Secondary victimisation can lead to even greater , degradation and isolation and the response of representatives of criminal justice agencies can have a critical impact on hate crime victims  The risk of secondary and repeat victimisation, of intimidation and of retaliation by the offender as a result of participation in criminal proceedings should be limited by carrying out proceedings in a coordinated and respectful manner, limiting the number of unnecessary interactions the victim has with them through, for example, video recording of interviews and allowing its use in court proceedings.  As wide a range of measures as possible should be made available to practitioners to prevent distress to the victim during court proceeding. Clash of procedural guarantees

 In case the victim of a criminal offence has already been examined by a panel of judges of a first-instance court and due to the subsequent change of the composition of that panel, that victim must, in principle, be examined again by the panel in its new composition, once one of the parties to the proceedings does not consent to that panel basing its decision on the written record of the evidence the victim gave at the first examination (CJEU C-38/18 Gambino / Hyka) Individual assessment of victims

 Need to identify specific protection needs and to determine whether and to what extent victims would benefit from special measures in the course of criminal proceedings due to their particular vulnerability to secondary and repeat victimisation, to intimidation and to retaliation (Art. 22)  The individual assessment shall, in particular, take into account:  (a) the personal characteristics of the victim (his or her age, gender and gender identity or expression, ethnicity, race, religion, sexual orientation, health, disability, residence status, and previous experience of crime, etc.);  (b) the type or nature of the crime (terrorism, THB, organised crime, hate crime, a bias crime or a crime committed with a discriminatory motive, sexual violence, violence in a close relationship, etc.); and  (c) the circumstances of the crime (communication difficulties, relationship to or dependence on the offender, etc). Individual assessment of victims

 Particular attention shall be paid to victims who have suffered considerable harm due to the severity of the crime; victims who have suffered a crime committed with a bias or discriminatory motive which could, in particular, be related to their personal characteristics; victims whose relationship to and dependence on the offender make them particularly vulnerable (recital 56).  The extent of the individual assessment may be adapted according to the severity of the crime and the degree of apparent harm suffered by the victim.  Before applying any measures victims’ wishes are to be taking into account, including where they do not wish to benefit from special measures.  If the elements that form the basis of the individual assessment have changed significantly, they are to be updated throughout the criminal proceeding Right to protection

➢ Right to protection (Art. 18 -20) –victims with specific protection needs who benefit from special measures identified as a result of an individual assessment in criminal proceedings • during investigation (interviews carried out in premises designed or adapted for that purpose; interviews carried out by or through professionals trained for that purpose; all interviews with the victim being conducted by the same persons unless this is contrary to the good administration of justice ( …) • during court proceedings (measures to avoid visual contact between victims and offenders including during the giving of evidence; hearing in the courtroom without being present or the presence of the public; measures to avoid unnecessary questioning concerning the victim's private life not related to the criminal offence Right to privacy

➢ Right to protect privacy (Art. 21) – measures to protect the privacy, including personal characteristics of the victim and images of victims and of their family members, prevent public dissemination of any information that could lead to the identification of a child victim ➢ Protecting the privacy of the victim can be an important means of preventing secondary and repeat victimisation, intimidation and retaliation and can be achieved through a range of measures including non-disclosure or limitations on the disclosure of information concerning the identity and whereabouts of the victim (recital 54) Training of practitioners

 Member States shall ensure that officials likely to come into contact with victims, such as police officers and court staff, receive both general and specialist training to a level appropriate to their contact with victims to increase their awareness of the needs of victims and to enable them to deal with victims in an impartial, respectful and professional manner (Article 25).  Many reports highlight insufficiency of training for professionals in the criminal justice system.  Both police and individual judges and prosecutors lack a profound understanding of the relevant concepts, such as hate crime, and negationism. European Protection Order

 DIRECTIVE 2011/99/EU of 13.12.2011 on the European protection order  EPO enables to continue protection of a protected person adopted with a view to protecting a person against a criminal act by another person which may endanger his life, physical or psychological integrity, dignity, personal liberty or sexual integrity  EPO may be issued when a protected person decides to reside/stay or already resides/stays in another MS.  Test of proportionality: when deciding upon the issuing of a EPO, the competent authority in the issuing State shall take into account, inter alia, the length of the period or periods that the protected person intends to stay in the executing State and the seriousness of the need for protection  Upon receipt of a EPO the executing State once recognising the order adopts any measure that would be available under its national law in a similar case in order to ensure the protection of the protected person.  The executing State may apply, in accordance with its national law, criminal, administrative or civil measures European Protection Order - transposition

 IE and DK opted out  REPORT FROM THE COMMISSION on the implementation of Directive 2011/99/EU (COM/2020/187 final) of 11.5.2020  The national implementing provisions received from all the 26 Member States seem to be satisfactory overall, especially regarding the mechanism for recognising EPOs.  The analysis of the practical application of the Directive shows however that it has not yet reached its full potential, as shown by the low number of EPOs issued and executed.  According to the information available to the Commission, only 37 EPOs were issued and only 15 were executed.  Both national authorities competent for issuing EPOs and persons in need of protection are not fully aware of the possibilities for requesting a EPO. EU Strategy on victims' rights (2020-2025)

 Promote an integrated and targeted EU approach to support victims with special needs such as child victims, victims of gender-based or , victims of racist and xenophobic hate crime, victims of sexual and gender-based violence, victims of organised crime, victims of environmental crime, elderly victims and victims with , by the relevant EU funding and through the EU awareness campaign on victims' rights • Assess introduction of minimum standards on victims' physical protection, and where necessary present legislative proposals by 2022; • Implement the guiding principles on ensuring protection and support for victims of hate crime and hate speech Future actions

 The EU Commission has announced the EU intention to include HS and HC “in the list of EU crimes” referring to the possible extension of areas of EU criminal law as per Article 83(1) TFEU third subparagraph.  The EU Commission has announced the boosting of the monitoring (and eventually the sanctioning through infringement procedures) of the correct transposition and implementation of the 2008 Framework Decision.  Another possible action: extension of EU anti-racist legislation so that hate crime and hate speech law covers also homophobic and transphobic hate crime. Sectoral Directives

 Directive 2011/36/EU of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA (Article 11-16)  Directive 2011/92/EU of 13 December 2011 on combating the sexual and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA (Article 18-20)  Directive (EU) 2017/541 of 15 March 2017on combating terrorism and replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA (Article 24-26) Thank you for your attention! Questions / Answers

1/ In your view, is it necessary to develop a dedicated legal instrument aimed at reflecting special needs of victims of hate crime and addressing their needs for protection and support?

2/ Which measures would you put forward to avoid secondary victimisation of hate crime victims and encourage them to participate more actively in criminal proceedings?