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The Globalization of HateInternationalizing Hate Crime?$

Jennifer Schweppe and Mark Austin Walters

Print publication date: 2016

Print ISBN-13: 9780198785668

Published to Oxford Scholarship Online: August 2016

DOI: 10.1093/acprof:oso/9780198785668.001.0001

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National Monitoring of Hate Crime in Europe

National Monitoring of Hate Crime in Europe

The Case for a European Level Policy

Chapter:
(p.213) 13 National Monitoring of Hate Crime in Europe
Source:
The Globalization of Hate
Author(s):

Michael Whine

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198785668.003.0014

Abstract and Keywords

European states have been required to collect and publish hate crime data since 2003, but the legal obligation was only agreed in the 2008 Council Framework Decision, which defined a common criminal approach and the basis for cooperation. The Decision was subsequently approved in two investigations commissioned by the European legislative and administrative institutions. The 2012 Victims’ Directive now strengthens the 2008 Decision and seeks to put victims’ rights at the heart of the criminal justice system. FRA and OSCE reports note, however, that many states still fail to monitor and publish hate crime data. Since 2013, the EU has therefore assisted Member States to fulfil their obligations by offering training for police and prosecutors, issuing advisory publications and promoting examples of best practice. States’ failures to properly transpose and implement the agreements are due to long-standing political and judicial traditions and practices which they are unwilling or slow to change.

Keywords:   hate crime, data, Framework Decision, Victims’ Directive, training, implementation

Introduction

European states have been under a duty to combat hate crime for a number of years; both as a consequence of their general duty to protect human rights and because of the development of case law on discrimination based on Article 14 of the European Convention on Human Rights. Three agreements in particular established these duties: the European Convention on Human Rights established judicial mechanisms for dealing with breaches of the human rights contained therein; with regard to the EU and its Member States, the Treaty on the Functioning of the European Union required the Union to ensure a high level of security through measures to prevent and combat crime, racism, and xenophobia, while the Charter of Fundamental Rights of the European Union, legally binding since December 2009, guarantees, among others, the rights to human dignity on grounds such as religion, ethnic origin, and sexual orientation.

However, it is only since 2003 that states have also been required to collect and publish data on hate crime, in order to ensure consistency in formulating counterstrategies and to combat such crime more effectively. The term ‘hate crime’ itself is relatively recent, only coming into general use by policy makers in Europe in 2003 when participating states of the Organization for Security and Co-operation in Europe (OSCE) made a commitment to ‘collect and keep records on reliable information and statistics on hate crimes, including on forms of violent manifestations of racism, xenophobia, discrimination, and anti-Semitism’ (OSCE 2003: 2). Their decision came in the wake of previously expressed concerns over the increase in hate crimes, and when they pledged to ‘take effective measures, including the adoption, in conformity with their constitutional systems and their international obligations, of such laws as may be necessary, to provide protection against any acts that constitute incitement to violence against persons or groups based on national, racial, ethnic or religious discrimination, hostility of hatred, including anti-Semitism’ (OSCE 1990: 21).

(p.214) Despite such pledges, European policy makers have noted that states are failing to implement the agreements they have entered into in the full spirit in which they were intended. They have recognized that the rise in hate crime, fuelled by economic distress, large-scale migration, and other concerns, has the capacity to de-stabilize the Union. There is also growing recognition that the internet facilitates and enhances these developments and enables the spread of hate against minorities, as well as the growth of extremist politics (Council of the European Union 2013; OSCE 2009).

Inter-regional agencies have also voiced their concern. Citing obligations under the International Convention on the Elimination of All Forms of Racial Discrimination and the International Covenant on Civil and Political Rights, the United Nations Commissioner for Refugees noted in 2009 that incidents of hate crimes that came to the attention of UNHCR and its network of partners needed to be recorded and reported to the authorities to promote comprehensive, timely, and impartial investigations of bias-motivated crimes (UNHCR 2009). In 2012, the UN Secretary-General presented the report of the Special Rapporteur on contemporary forms of racism to the UN General Assembly in which he lamented the ‘lack of sufficient data collection mechanisms and the absence of statistics on hate crimes’ (UNGA 2012: 22).

In this chapter I employ a policy perspective to examine the obligations undertaken by European states to monitor hate crime. The chapter outlines the reasons why many states are failing to effectively monitor hate crime, and highlights the measures they are expected to take to improve their performance. In doing so, I shall also be updating the information I have previously published elsewhere (Whine 2015).

Dealing with the Threat of Hate Crime

A recent OSCE report notes that there is a ‘chronic lack of reliable and comprehensive data on hate crimes across the region’ (OSCE 2014: 1). This matters because hate crime is a human rights issue with wide social and political ramifications. Hate-motivated crime undermines the victim’s sense of worth, self-confidence, and right to a place in society. The message that the hate crime perpetrator sends is that the victim has no right to be what he is, to live where he does, and at its most extreme, no right to life, with the effect being magnified as it extends to the victim’s community. This may have a mobilizing or retaliatory effect on the victim’s community, and for these reasons the European agencies rightly see hate crime as a threat to the security of Member States, and to Europe itself. Moreover, the harm caused is greater when the victim belongs to a group that suffers from long-term victimization or deprivation, who may suffer from secondary victimization when the police or other criminal justice agencies fail to respond in a sensitive manner or disregard the bias motive behind the crime. Hate crime therefore undermines European commitments to democracy and the fundamental rights of equality and non-discrimination.

(p.215) The failure of European states to collect and maintain statistics therefore frustrates any effective policy formulation and appropriate resource allocation to counter hate crime. But for such data to be usable it must be comparable, that is, like-for-like. It must be disaggregated by type of crime (e.g., assaults, incitement, etc.) and by targets to establish which groups are suffering. Data on prosecutions and convictions are likewise required to assess the seriousness with which states treat the problem, and details of punishments are required to determine if states are unmasking the motive behind hate crime, and uplifting sentences on conviction. This results from decisions by the European Court of Human Rights (ECtHR), which has ruled in a number of cases that states are obliged to ‘unmask’ the motivation behind racist crimes or crimes committed because of the victim’s religious belief (FRA 2012). If the criminal justice system overlooks the bias motivation behind a crime then this can amount to a violation of Article 14 of the European Convention on Human Rights.

Recognizing that states fail to monitor hate crime has led the European agencies to encourage civil society groups to provide data in addition to states parties. Non-governmental organizations (NGOs) may have an interest in publicizing the crimes committed against those on whose behalf they work, and they can access those victims who are unable or unwilling to report directly to the police. Civil society groups can add context to their reporting in a way that criminal justice agencies cannot. They can report the build-up of non-crime incidents in an area or against a community which the police might ignore; and they can more effectively describe the harm suffered by communities and how communities respond, that officials may dismiss.

Nevertheless, civil society reporting is too often based on anecdotal or media reporting and may not be evidenced. Consequently the agencies encourage and fund civil society initiatives such as Facing Facts, a partnership between the Brussels-based CEJI—a Jewish response to an inclusive Europe; the UK-based Community Security Trust; the Dutch Jewish monitoring group CIDI; and the international lesbian, gay, bisexual, transgender, and intersex group ILGA, which trains civil society groups to monitor and record hate crime to criminal justice standards (Facing Facts Forward 2015). Another is the annual Shadow Reports of the European Network Against Racism, which represents anti-racist monitoring groups across Europe, and which are designed to fill the gaps in official and academic data (ENAR 2013–14).

Aside from the legal and convention considerations, it is apparent that hate crime easily crosses borders in a post-Schengen Europe, facilitated by universal access to the internet, electronic media, and the persistence of populism, racism, and anti-immigrant movements which link internationally with each other, overtly and covertly (Whine 2012). Police and criminal justice systems, particularly in the new Member States of central and eastern Europe, also now have to understand their human rights’ duties and responsibilities in a democratic society, and reorganize to recognize and investigate crimes motivated by hate (COREPOL 2014).

(p.216) European Policies on Monitoring Hate Crime

The legal obligation to combat hate crime in Europe is contained within the Council Framework Decision on combating certain forms of racism and xenophobia by means of criminal law, which EU Member States agreed in 2008. That they took seven years to negotiate the agreement gives some idea of the complexities they encountered in defining a common criminal approach and establishing legislative and judicial cooperation (Council Framework Decision 2008).

The Framework Decision requires states, amongst other things, to criminalize public incitement to violence or hatred against religious, racial, ethnic, and other groups; to criminalize the public condoning, denying, or grossly trivializing genocide, crimes against humanity, and war crimes; and to ensure that racist and xenophobic motivation is considered an aggravating circumstance during sentencing. Its purpose is to approximate domestic laws, and to promote full and effective judicial cooperation. Member States were given two years to comply, in recognition that each would be approaching the agreement from different legal and political positions. In 2013 and 2014, respectively, two reviews on states’ compliance were published.

The first review, in the form of an Opinion by the European Union Agency for Fundamental Rights (FRA), was compiled in response to a two-part request by the Council of the European Union, the European Commission, and the European Parliament. The authors of the Opinion noted that theirs was an assessment of the impact of the Framework Decision on Member States, and in so doing, asked what more should be done to better protect and acknowledge the rights of hate crime victims (FRA 2013). They added that the Framework Decision itself contains two sections: the first and main part aims at harmonizing states’ penal laws against hate crime and ‘negationism’ (i.e. denial of genocide and the Holocaust); the second requires states’ courts to ‘unmask’ the discriminatory motives of offenders, that is, the hate element of the crime (FRA 2013). The first part of the Opinion briefly assessed the impact of the Framework Decision on the rights of victims, and contrasted this with an assessment of certain aspects of victims’ rights recognized in other instruments of secondary legislation. The second explored options and requirements to improve the victim’s rights.

The Framework Decision obliges EU Member States to ensure that racist motives behind offences are not overlooked, that criminal justice systems give them appropriate attention and reflect the crucial rights of hate crime victims, as required by established European case law (Nachova and Others v Bulgaria, 2005). In that sense it also supports the 2012 EU Victims Directive, due to be transposed at Member State level by November 2015. This provides for the rights of crime victims to recognition, effective access to justice, participation in proceedings, and protection against repeat victimization, and is more fully explained below.

The second part of the request was to examine areas of concern where FRA is of the opinion that EU action could and should improve the situation of the rights of (p.217) victims of hate crime, and bring the Framework Decision into line with the Victims’ Directive. Here the Opinion authors noted that FRA has compiled the most extensive set of EU-wide data on different groups’ experiences of hate crime, based on an EU-wide survey of a randomly selected sample of 23,500 migrants and minorities (EU-MIDIS), and cited by way of illustration some of its published research reports: Data in Focus report—Minorities as Victims of Crime; Making Hate Crimes Visible in the European Union: acknowledging victim’s rights; Discrimination and Hate Crimes against Jews in EU Member States, etc. (FRA 2013).

The FRA Opinion recommended that Member States take a number of actions to ensure full compliance with the Framework Decision. These included taking appropriate measures to facilitate the reporting of hate crime; encouraging victims and witnesses to report such crime; raising awareness among those at particular risk; and in doing so, working closely with civil society and human rights organizations. It further recommended providing appropriate training for officials who come into contact with victims of hate crime; establishing special hate crime units in police services; paying particular attention to victims’ needs; ratifying the Additional Protocol on Cyberhate to the Council of Europe Convention on Cybercrime; and assessing whether police and public prosecutors are sufficiently staffed and equipped to respond to hate crimes. An important recommendation within the Opinion was that Member States should collect and publish data on hate crimes, on the basis of clear and comprehensive guidelines, and on an annual basis. These are, at a minimum: the number of incidents which are crimes; the number of convictions of offenders; the grounds on which the offences are found to be discriminatory; and the punishment handed down to offenders (FRA 2013: Action 23).

It is instructive to note that Member States were urged within the twenty-five recommendations to acknowledge and pay proper attention to the discriminatory motive behind, and the nature of, hate crime and not to simply label it as the consequence of ‘right-wing extremism’ or ‘left-wing extremism’. This practice, by Germany, Austria, and some Nordic states, tends to obscure the element of discrimination present in hate crime, and conceals the particular victimization suffered by hate crime victims. For instance, FRA has noted in this context that ‘research also shows that right-wing extremism is a relatively rare phenomenon’ (FRA 2013: 3). In this respect it is also noteworthy that research in the UK and Europe generally has shown that hate crimes may not be mission-oriented by extremists, but are often the consequence of abrasive encounters on the streets, or occur as an overspill of events elsewhere (EU-Midis 2012; Iganski et al. 2005).

Expanding on the need to collect data, the Opinion noted that the lack of a consistent approach between Member States results in gaps in data collection across the EU. Differing legal approaches and interpretations of what constitutes hate crime influence the depth and breadth of official data collection mechanisms. These disparities mean that Member States may measure different realities, complicating any analysis of the prevalence of hate crimes across the EU. Data collected by FRA, and published in its reports, consistently show that persistent gaps exist in data collection on crimes motivated by racism, xenophobia, antisemitism, and especially (p.218) crimes motivated by another person’s sexual orientation, gender identity, or disability, or because of their presumed identification with these grounds (FRA 2013).

To pre-empt governments using the excuse that data protection laws prevent the compilation and publication of statistics, Member States are advised to collect and publish hate crime data at an aggregate level and on an anonymous basis so that no individual case can be identified. This would serve to acknowledge victims’ rights flowing from ECtHR case law decisions to ‘unmask’ bias motives underlying criminal offences (EU 2008; FRA 2013).

The Framework Decision contains other weaknesses which it notes, as does the Opinion. These are that states experience difficulties regarding judicial cooperation; that there is a need for further approximation of criminal laws; that full harmonization may not be possible because of long-standing traditions; and that Member States may choose to punish only conduct which is either carried out in a manner likely to disturb public order or which is threatening, abusive, or insulting, ignoring other forms of hate crime (FRA 2013).

The second report on the Framework Decision was compiled by the European Commission on behalf of the European Parliament and the Council, and was delivered in January 2014. Its primary focus is on its transposition into domestic law by Member States. The report examines how states have adopted the main elements, and their reasons for not doing so, if applicable. It concludes that ‘at present it appears that a number of Member States have not transposed fully and/or correctly all the provisions of the Framework Decision and notes that the Commission will engage in bilateral dialogues with them during 2014 with a view to ensuring full and correct transposition’ (European Commission 2014: 9).

The report added that the existence of reliable, comparable, and systematically collected data can contribute to more effective implementation of the Framework Decision, and noted that hate speech and hate crime incidents should always be registered, as well as their case history, in order to assess the level of prosecutions and sentences. It further added that the collection of hate speech and hate crime data was not uniform across the EU and consequently did not allow for reliable cross-country comparisons. The Commission therefore asked all Member States to provide it with data on the incidence of, and the criminal response to, hate speech and hate crime (European Commission 2014).

the Eu Victims’ Directive

The 2012 EU Victims’ Directive established minimum standards on the rights, support, and protection of victims of crime, and replaced the 2001 Council Framework Decision, which required Member States, inter alia to approximate their laws and regulations to afford victims of crime a high level of protection, to develop cooperation between them, and to improve and train victim support services.

Referencing the Treaty on the Functioning of the European Union, and in particular Article 82(2) thereof which calls for judicial cooperation on criminal matters, (p.219) the mutual admissibility of evidence between Member States, and the rights of individuals and crime victims, the 2012 Directive noted that the Union has set itself the objective of maintaining and developing freedom, security, and justice, and that a cornerstone of this is the mutual recognition of ‘judicial decisions in civil and criminal matters’, and ‘the establishment of minimum standards in regard to victims of crime’ (Directive 2012/29/EU 2012: 1).

The preamble to the Victims’ Directive notes inter alia that victims must be encouraged to report crimes in order to break the cycle of repeat victimization, and that the response by authorities in a respectful, sensitive, professional, and non-discriminatory manner will increase victims’ confidence in criminal justice systems, and reduce the number of unreported crimes (Directive 2012/29/EU 2012). A second introductory note states that the collection of systematic and adequate statistical data is recognized as an essential component of effective policy making, and that states are therefore required to communicate relevant statistical data on crime victims, including at least the number and type of the reported crime, and, as far as is known, the number, age, and gender of the victims. Relevant data can also include that recorded by judicial and law enforcement agencies, and as far as possible, administrative data compiled by healthcare and social welfare services by public and non-governmental victim support or restorative justice services, and other organizations working with victims of crime (Directive 2012/29/EU 2012).

None of these provisions specifically apply to hate crime, but an introductory note in the Directive lists protected characteristics, which include race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age, gender, gender expression, gender identity, sexual orientation, residence, status, or health, which are to be recognized and taken into account. This is clearly too long and no state will have the resources, or the political will, to include all of them, but race, religion, ethnic or social origin, gender and gender expression or identity, as well as national minority, are generally regarded as necessary to monitor. Another notes that systematic and adequate statistical data collection is an essential component of effective policymaking, that reliable support services should be made available to victims, and that competent authorities should encourage and facilitate reporting of crimes and allow them to break the cycle of repeat victimization. The Victims’ Directive therefore is an important step forward which strengthens European guidelines: all crime is a wrong against society and a violation of individual rights; victims should be recognized and treated in a respectful, sensitive, and professional manner without discrimination of any kind; the competent authorities should address victims’ needs, their personal situation, ensure that they are protected from secondary and repeat victimization, and receive appropriate support to facilitate their recovery (Directive 2012/29/EU 2012).

However, like the Framework Decision, the Victims’ Directive contains inherent weaknesses. Not the least of these is the overlong list of protected characteristics which no government is willing to monitor, although the minimum relevant statistical data should be achievable by all, in time.

(p.220) The European Union Agency for Fundamental Rights (FRA)

The first Europe-wide report on hate crime was undertaken in April 2005 by the European Union Monitoring Centre on Racism and Xenophobia (EUMC), the predecessor to FRA. Their report presented the information gathered from 2001 up to part of 2004 by the EUMC RAXEN network of national focal points.

The first part of the report presented an overview of legal obligations of ‘race’, ‘ethnicity’, and ‘racism’, and offered critical commentary on attempts to measure the extent and nature of racist violence, particularly as a comparative cross-national undertaking. It also sought information on the effectiveness of official and alternative data collection mechanisms. In the second part, the EUMC explored the available data from each of the (then) fifteen Member States. The third part presented a comparative review, noting the limitations of trying to compare the sparse and different data sets, an examination of the cultural and criminological context in which racist violence occurs, and finally an assessment of states’ responses (EUMC 2005).

In summary, the EUMC found that no two states had data that was strictly comparable; three states had no public official data at all; one state released only limited figures; three states concentrated their data collection on ‘discriminatory offences’ alone; two states focused their attention on the activities of (right wing) extremists only; and only four had comprehensive data collection mechanisms (EUMC 2005).

The discrepancies in collected hate crime data were therefore apparent and it was obvious that official data under-recorded hate crime to a substantial degree, either because official recording systems did not exist, or because they were not thorough or comprehensive enough. Since then data collection systems have improved and the 2011 FRA Annual Report acknowledged that some states had improved data collection on racist crime but that they still have a long way to go, and many still did not have systematic data collection mechanisms in place. FRA therefore concluded that it remained difficult to quantify the prevalence of racist crime in the EU, or to compare trends over time (EUMC 2011). Some improvements were noted in the 2012 report as more states had changed and improved their data collection systems. But in yet another 2012 report it observed that no further progress had been made despite states’ commitments to counter discrimination, intolerance, and hate crime (EUMC 2012).

FRA accordingly recommended the introduction of legislation at the EU and national level that would oblige Member States to collect and publish data, recognizing that this would encourage confidence among victims to report hate crime. Law enforcement agencies were urged to be attentive to bias motivation when investigating and prosecuting crime. FRA further recommended enhanced penalties for hate crime in order to underline their seriousness, and that courts should address these bias motivations publicly (FRA 2012).

In order to circumvent under-recording by states, and to fill in the gaps, FRA instituted a series of Europe-wide surveys on experiences of criminal victimization. (p.221) The first, the European Union Minorities and Discrimination Survey (EU-MIDIS), reported its findings in 2009. Among the questions asked were a series about respondents’ experiences of being a victim of crime in five areas (theft of or from a vehicle, burglary or attempted burglary, theft of personal property not involving force or threat, assault, and threat and harassment of a serious nature). The focus of the survey was on the largest migrant or indigenous minority ethnic groups in each Member State, such as Roma and North African migrants, whose direct experience of discrimination and hate crime was under-recorded. The survey found that the overwhelming majority of correspondents actually never reported incidents of hate crime or discrimination to law enforcement or other public authorities because they did not know this was unlawful, in the case of discrimination, or it would not change anything, in the case of hate crime (EU-MIDIS 2012).

In 2012, FRA published a detailed analysis of the EU-MIDIS survey data examining in more detail information, including on whether racially or religiously offensive language was used, whether the matter was reported to the police, and the reasons why no report was made to the police in cases of negative responses. Among the key findings in the Report were that every fourth person from a minority group had been the victim of crime at least once in the twelve months preceding the survey; Sub-Saharan Africans, closely followed by Roma, experienced the highest overall victimization; minorities are victims of personal theft and assault or threat of assault more than the majority population; more than one in four respondents from some minorities considered they were the victim of racially motivated crime in the previous twelve months; and most incidents of assault or threat of assault were not committed by members of right-wing extremist groups (EU MIDIS 2012).

Since then three other FRA surveys have covered issues of hate crime: the survey on experiences and perceptions of antisemitism among Jewish communities (FRA 2012); the survey on discrimination against, and victimization of, lesbian, gay, bisexual, and transgender persons (EU LGBT 2013); and the survey on violence against women (FRA 2014). Taken together, these surveys provide a more complete picture of hate crime and criminal victimization among some of the most populous minority groups, as well as among the general population (women), demonstrating the serious extent of under-reporting by states parties. They further show that despite legislation and improved practices, the reality, and the fear, of hate crime is growing.

The latest FRA report based on official data for 2013 notes that only five states provided comprehensive data as required (Finland, Netherlands, Spain, Sweden, and United Kingdom). It notes that the twenty-eight Member States of the EU differ on the data they record and publish, and that the data are not comparable between them. The report adds that official data collection systems often fail to capture the situation on the ground, and that the states which record the highest number of crimes are not necessarily those where most crimes are committed. FRA therefore suggest looking at trends in collected data to provide an indication of the increase or decrease in hate crime, but also changes in recording procedures. They urge states to intensify their efforts to collect data and to implement awareness-raising activities in order to encourage reporting, and to provide law enforcement and judicial (p.222) authorities with specialist training to enable them to effectively identify, investigate, and prosecute hate crimes, and to respond sensitively to the rights and needs of victims (FRA 2015).

The Organization for Security and Co-Operation in Europe (OSCE)

OSCE commitments to combating hate crime were laid down by the 2006 Ministerial Council meeting, which tasked the Office for Democratic Institutions and Human Rights (ODIHR) to serve as a collection point for information and statistics on hate crimes and relevant legislation; make this information publicly available through its Tolerance and Non Discrimination Information System (TANDIS 2015a); strengthen its early warning function to identify, report, and raise awareness of hate-motivated incidents and trends; provide recommendations and assistance to participating states; and report annually on challenges and responses to hate-motivated incidents in the OSCE region (Decision No. 13/06 2006).

This mandate was subsequently developed and strengthened by the Ministerial Council in 2009, where participating states committed to enact specific tailored legislation to combat hate crimes; encourage victims to report hate crime (recognizing that under-reporting prevents states from devising effective policies); facilitate the cooperation of civil society; improve hate crime victims’ access to counselling and legal assistance; introduce or further develop professional training and capacity-building activities for law enforcement, prosecution, and judicial officials dealing with hate crimes; and use ODIHR education and training resources to ensure a comprehensive approach to the tackling of hate crimes (Decision No.9/09 2009).

Additionally, ODIHR recognized specific types of hate crime, including those against Jews, Muslims, Roma, and Sinti, and lesbian, gay, bisexual, and transgender (LGBT) communities. These categories have also been recognized in Ministerial Council decisions, and latterly by the appointment of Special Representatives of the Chairman in Office, whose tasks are to focus participating states’ attention on the threats encountered by these communities (TANDIS 2015b).

However, ODIHR also complains about the paucity of data. In its Annual Report for 2012 it records that fifty-one states reported that they collect hate crime data, and that forty-one states had completed questionnaires or otherwise provided updated information on data collection for 2012, but only twenty-seven states had actually submitted official statistics or information on incidents of hate crimes. The Report adds that where hate crime statistics are collected, it may be by the police, prosecutors, or other agencies, but that some states do not collect any data or do not make their data public. Information provided by a number of police officers and officials to this author, though not empirically collected data, suggests that the reasons for this are either lack of money for instituting the required system changes, or that the governments concerned have other priorities.

(p.223) ODIHR gathers data for its annual hate crime report through a questionnaire sent to states’ National Point of Contact on hate crime (NPC), which contains questions about data-collection methods, legislation, reported hate crime, and policies and initiatives. NPCs in turn respond by completing a questionnaire on a restricted access section on the TANDIS website, where information provided in previous submissions can also be accessed (TANDIS 2015c). Non-governmental organizations are also invited to submit reports on hate crime to fill the gaps left by NPC reports, and to add context. Intergovernmental organizations, including the United Nations, EU agencies, and others are also consulted.

ODIHR hate crime reports therefore differ from those of FRA as they include larger quantities of data submitted by partner organizations, international governmental organizations (IGOs), and NGOs. In its recommendations to states, ODIHR has noted that the lack of accurate and comprehensive data undermines the ability of states to understand fully and to deal effectively with the problem of hate crime. It adds that they need to collect, maintain, and make public reliable data and statistics in sufficient detail, and that such data should include the number of cases reported to police as well as the number of cases prosecuted and the sentences imposed. They should also separate hate crimes from other crimes, disaggregate bias motivations, and encourage victims to report the crimes against them (OSCE ODIHR 2013).

European Commission against Racism and Intolerance (ECRI)

ECRI is a monitoring body of the Council of Europe with the mandate to review Member States’ legislation, policies, and other measures to combat racism, racial discrimination, xenophobia, antisemitism , and intolerance, and their effectiveness; to propose further action at local, national, and European level; to formulate general policy recommendations (GPRs) to Member States; and to study international legal instruments applicable in the matter with a view to their enforcement where appropriate. Its investigative reports on Member States are published in a five-yearly cycle, and are used as a primary source of information by FRA and ODIHR. Indeed, the three agencies increasingly cooperate, share information, and attend each other’s meetings in order to improve their coordination (ECRI 2008).

ECRI too is concerned with monitoring hate crime, and in its first GPR it noted that:

Since it is difficult to develop and effectively implement policies in the areas in question (ie combating racism, xenophobia, antisemitism and intolerance) without good data, to collect, in accordance with European laws, regulations and recommendations on data-protection and protection of privacy, where and when appropriate, data which will assist in assessing and evaluating the situation and experiences of groups which are particularly vulnerable to racism, xenophobia, antisemitism and intolerance. (ECRI 1966)

(p.224) In its 2013 Annual Report, ECRI noted the increasing support for aggressive nationalist and populist xenophobic parties, and its concern that these will have an overall negative effect on the political climate in Europe. It applauded the dismantling and banning of some neo-Nazi political parties, but noted the worrying consequence of the rise of nationalist populist parties rooted in profound hostility to ethnic, religious, and cultural diversity. In its 2014 Annual Report, it drew attention to the need to tackle the problem of under-reporting of discrimination, and that a comparison between official and civil society statistics suggests substantial discrepancies. In its country reporting work, ECRI now encourages states to take a more vigorous approach to prosecuting discrimination, harassment, and cyberhate. In its current fifth round of country monitoring it will focus on racist and homophobic/transphobic violence and the response of the authorities to these phenomena.

In order to enhance these efforts, ECRI held a seminar in May 2014 for national ‘Specialised Bodies’ to discuss cooperation mechanisms between themselves and local and regional authorities in countering hate speech and racist and homophobic/transphobic violence, and what more could be done in practical terms to prevent and combat hate speech and hate crime at a local level (ECRI 2014).

Arising from the conclusions reached by the participants at that seminar, ECRI held a second seminar in May 2015 on ‘The role of national Specialised Bodies in addressing underreporting of discrimination and hate crime’. Agenda items included ‘Underreporting and its causes’, and ‘Good practices in addressing underreporting’. No conclusions from the seminar have been made public, but it was agreed that cooperation between local authorities and national Specialised Bodies offers benefits, although many are under-resourced and political effort is required to enhance their capacities (ECRI 2015).

Tackling the Lack of Progress

In 2013, the EU Justice and Home Affairs Council adopted a resolution that declared that ‘measures to tackle discrimination, racism, antisemitism, xenophobia and homophobia must be vigorously pursued’. The Council invited Member States to ensure that the 2008 Framework Decision has been fully transposed into national legislation and implemented in practice. They asked states to ensure that they collect and publish comprehensive and comparable data on hate crimes, including the number of such incidents reported by the public and recorded by law enforcement authorities, the number of convictions, the bias motives behind these crimes, and the punishments handed down to offenders. The Council further invited states to facilitate the exchange of good practice and invited FRA to continue to assess the extent of racism, xenophobia, antisemitism, and other forms of hate crime through EU-wide surveys (Council of the European Union 2013).

Building on this new initiative, ODIHR published a guide to collecting data provided by governments, civil society, and intergovernmental organizations. Hate Crime Data-Collection and Monitoring Mechanisms: A Practical Guide is intended (p.225) as a step towards overcoming national and organizational differences between jurisdictions and criminal justice agencies. In recognition of the complexities created by different approaches in multiple jurisdictions, governments are urged to adopt a clear approach that allows for flexibility (OSCE 2014). ODIHR reorganized its training programmes to support police officers who deal with hate crimes, as they are the first responders. The Training against Hate Crimes for Law Enforcement (TAHCLE) programme is designed to enable them to effectively recognize such crimes and therefore record them more accurately. Likewise criminal prosecutors, who deal with the next step in the criminal justice process, are to be trained under a new programme, Prosecutors and Hate Crimes Training Programme (PAHCT).

However, under-reporting of hate crimes remains a major concern, and authorities are urged to work around the difficulties thrown up by cultural barriers, language difficulties, mistrust, and fear of reprisals. Among the most worrying of these barriers is the widespread belief that authorities simply do not act on hate crime reports. For example, the FRA survey on perceptions of antisemitism indicated that 76 per cent of victims of antisemitic crime do not report either to the police or Jewish community monitoring groups as they believe that nothing will happen (FRA 2012).

The following year, FRA noted in two publications that hate crime data should be freely available and in the public domain to increase the visibility of hate crime in the EU, and that few states have mechanisms in place to record hate crime comprehensively. In its latest published report, Fundamental Rights: Challenges and Achievements in 2013, FRA noted that few changes had taken place in the status of official data collection mechanisms. It noted therefore that ‘the collection of reliable, comparable and comprehensive data on racist and related crime would contribute to the Framework Decision’s effective implementation. Public authorities in Member States will be increasingly called on to collect and publish data on such crime, including details of such prosecutions and sentences handed down’ (FRA 2014: 159).

While applauding some improvement in the submission of data, ODIHR has pointed out that ‘it remains difficult to identify trends and obtain a complete picture of the true extent of the problem due to remaining significant gaps in data collection and the use of different definitions across the region’ (OSCE 2011). Frustrated by the slow progress in monitoring and publishing hate crime data, FRA, in cooperation with the Lithuanian Presidency of the Council of the EU, held a two-day conference on Combating hate crime in the EU, in Vilnius in December 2013. Thematic working groups discussed a range of relevant issues including: evidence on the extent of hate crime; under-reporting of hate crime; victim support services; effective investigatory practices and prosecutions; discriminatory aspects of hate crime; capacity building for law enforcement; and criminal justice systems, among other themes. The conference was attended by over 400 participants, representing the international organizations, national law enforcement agencies, judiciary, two Member States’ government ministers with justice or interior department portfolios, as well as the European Home Affairs Commissioner, who lamented the lack of political will to deal effectively with hate crime. There was overwhelming consensus that measures to address hate crime should be extended to cover all forms of bias, that legal frameworks need to reflect the new comprehensive approach, and that a directive should replace the (p.226) Framework Decision. This would provide the EU with enforcement power (FRA 2013; Malstrom 2013).

All EU Member States are now required to comply with all the provisions of the Framework Decision and the Victims’ Directive as well as to ratify the Additional Protocol to the Council of Europe Convention on Cybercrime, which requires signatory states to criminalize online incitement to hate crime, denial of genocide, and denial of the Holocaust. Increased inter-institutional coordination between EU agencies and intergovernmental agencies is to be further encouraged to give practical effect to the recommendations, and FRA was asked to work together with them all to facilitate the exchange of good practice and to assist Member States (Council conclusions on combating hate crime in the European Union 2013: 5). The police and prosecution services were urged to establish specialized units or focal points for dealing with hate crime, to review their practices regularly, and to build trust with victim communities (Council conclusions on combating hate crime in the European Union 2013: 4).

With regard to data collection, the conference recommended that a group of experts be assembled to exchange expertise and review data collection systems to increase comparability, that they cover all grounds protected under Article 21 of the Charter of the EU (sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age, or sexual orientation), that police, prosecutors, and judiciary publish their separate data, that more victimization surveys be conducted, and that FRA continuously assess the situation (FRA 2013).

In December 2013, the EU Justice and Home Affairs Council published the Council Conclusions on Combating Hate Crime. This agreement quoted relevant EU agreements, notably Article 2 of the Treaty of the European Union, which refers to the rule of law and respect for human rights, the Stockholm Programme 2010–2014, which required Member States to provide a safe environment and the need to tackle discrimination vigorously, and the Framework Decision (Council of the European Union 2013). The Council invited Member States to ensure that the Framework Decision has been fully transposed, provide prompt and effective investigation and prosecution of hate crimes, facilitate the reporting of hate crimes by victims and as far as possible support mechanisms, and collect and publish comprehensive and comparable hate crime data. The EU itself was invited to contribute to improving the collection of reliable and comparable data and its analysis, and improve strategic cooperation with external stakeholders such as the international organizations and civil society.

Thus began the process of improving the reporting of hate crime in Europe. The first initiative was a seminar on how to combat hate crime effectively and sustainably, held in Thessaloniki in April 2014. Representatives of twenty-five Member States, and the EU, together with human rights bodies, civil society, and intergovernmental bodies discussed practical and policy measures in order to implement the Council conclusion. Discussion focused on improving hate crime data collection by states, with additional comments from expert civil society groups (FRA 2014). The end result was the appointment of a Working Party with a mandate to (p.227) develop an understanding of hate crime in the national context, enhance multi-agency partnerships, encourage reporting, and identify gaps in training, which has met twice thus far; in November 2014 and March 2015. Its focus has been on improving victims’ confidence to report hate crimes, transferability of existing practices, improving coordination between national criminal justice agencies, improving supervision of cases going through criminal justice systems, and sharing understanding of hate crimes between criminal justice agencies. The UK Ministry of Justice thereafter hosted a seminar on behalf of FRA for European police officers and other criminal justice agency representatives in March 2015, with the aim of assisting their work by showcasing British methods, including presentations by Muslim and Jewish hate crime recording bodies which work closely with the police.

Conclusions

Despite policy makers’ best intentions, European states have yet to fully transpose agreements, are slow in their approximation of legal systems, and are failing to provide statistical data on hate crime. These failures apply to new Member States as well as early members of the EU and Council of Europe, and may reflect their long-standing political traditions and practices which they are unwilling to change, but also in some cases different priorities, and/or money to institute the changes required.

The requirement to monitor hate crime began with the 2003 OSCE Ministerial Council Decision, and was given a legal basis with the 2008 Council Framework Decision, but doubts were expressed even at that time that some states would fail to fulfil their obligations. The then Commissioner for Human Rights at the Council of Europe noted, ‘Steps should be taken to ensure that bias-motivated crimes are monitored and that data is collected on them and their circumstances. Unfortunately, there is an information gap in several countries due to lack of official determination’ (Hammerberg 2008).

In many ways he minimized the problems, as the complexities of persuading states to monitor and publish their hate crime data in a comparable fashion were always going to lead to a politically difficult and time-consuming task. European states have different legal systems which have evolved over time, and accordingly they have different approaches and priorities in collecting data on all forms of crime. It is even more problematic when some states still fail to recognize the very existence of hate crime, despite the fact that OSCE-participating states agreed a common definition with which to work, that is, ‘hate crimes are criminal offences committed with a bias motive’ (OSCE 2009: 1). That said, the Commissioner did reflect, even then in 2008, a mounting concern among many European leaders that unchecked hate crime threatens stability. The recession of the last few years, disillusionment with the European experiment, and populist anti-migrant politics which dominates national and European discourse adds to this concern, as does the realization that (p.228) movement within the Schengen area and malign use of the internet allow extremist ideas to cross borders more easily. European-level policy to monitor hate crime therefore exists, and it is clear that it is accorded a high priority by the European agencies, but it lacks proper or continent-wide application by the states who lack the political will at the national level to institute the changes, or lack money for system improvements and training for the criminal justice services.

Although European police and prosecutors now have the legal tools and the incentive to record hate crime as racist, the issue remains for many that everyday violent racism is usually dealt with as violent crime only, if it is reported at all. Further, it occurs widely and frequently, and not just as a consequence of political extremism. However, the proposed ‘victim-centred’ approach mandated by the Victims’ Directive should overcome any dependency on reports or accusations by victims who are particularly vulnerable and reluctant to initiate legal proceedings. The Directive places the victim at the heart and the focus of states’ criminal justice systems.

It might be added that when governments publicly recognize the problem of hate crime, and invest efforts into identifying and effectively responding to it, they create a climate that supports additional research. Data collection, including on hate crimes, therefore appears more routine on a range of social phenomena. Moreover, the growing political representation of minority and immigrant groups becomes the focus of media attention which in turn can put pressure on governments to react more effectively.

Despite the oversight and enforcement powers given to the Framework Decision and the Victims’ Directive, the monitoring of hate crime across all states and in the detail agreed is still a distant policy goal. States may properly transpose the agreements into domestic law, but they still lack sufficient trained police officers, prosecutors, and judges to use the laws, and without substantial overhaul of criminal justice systems, they lack the capacity and infrastructure to use them. Further progress will continue to be dependent on funding, and the determination of governments and political leaders.

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