Role of the judiciary in the protection of procedural rights of hate crime victims Antisemitism and Hate Crimes Dr Sławomir Buczma Council of Europe’s response to HC and HS European Convention on Human Rights of 1950 (ECHR) The Framework Convention for the Protection of National Minorities of 1994 (FCNM) - prohibits discrimination 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 insult, and denial, gross minimisation, approval or justification of genocide 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, disability, 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 hate crime included. FRAMEWORK DECISION 2008/913/JHA 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 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- blame for the attack; fear of re-victimisation, such as retaliation by perpetrators if they report the crime; fear of secondary victimisation during the criminal justice process; feelings of shame 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 bias 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, guilt 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.