untitled

1. I

NTRODUCTION

All forms and manifestations of racism and xenophobia are incompatible with the values upon
which the EU is founded. The Lisbon Treaty provides that the Union shall endeavour to
ensure a high level of security through measures to prevent and combat crime, racism and
xenophobia

Council Framework Decision 2008/913/JHA on combating certain forms and expressions of
racism and xenophobia by means of criminal law

(hereinafter ‘the Framework Decision’)

was adopted unanimously on 28 November 2008, after seven years of negotiations. The
complicated nature of these negotiations was mainly due to the disparity of the Member
States’ legal systems and traditions as regards protection of the right to freedom of expression
and its limits, and yet there was enough common ground to define a Union-wide criminal-law
approach to the phenomenon of racism and xenophobia in order to ensure that the same
behaviour constitutes an offence in all Member States and that effective, proportionate and
dissuasive penalties are provided for natural and legal persons having committed or being
liable for such offences.

The fight against racism and xenophobia must be framed within a fundamental rights context:
the Framework Decision is based on the need to protect the rights of individuals, groups and
society at large by penalising particularly serious forms of racism and xenophobia while
respecting the fundamental rights of freedom of expression and association. It thereby
embodies ‘the vital importance of combating racial discrimination in all its forms and
manifestations’, as underlined by the European Court of Human Rights, which has upheld that
it may be necessary in ‘democratic societies to sanction or even prevent all forms of
expression which spread, incite, promote or justify hatred based on intolerance’

. The

Framework Decision must be applied in conformity with fundamental rights, in particular
freedom of expression and association, as enshrined in the Charter of Fundamental Rights.

In accordance with Article 10(1) of Protocol No 36 to the Treaties, prior to the end of the
transitional period expiring on 1 December 2014, the Commission does not have the powers
to launch infringement proceedings under Article 258 TFEU with regard to Framework
Decisions adopted prior to the entry into force of the Treaty of Lisbon.

The Framework Decision now requires the Commission to draw up a written report assessing
the extent to which Member States have implemented all provisions of this legislation. This
report is based on the transposition measures notified by Member States (see Annex) and
technical information requested from them by the Commission during its analysis (including
national case law, preparatory work, guidelines, etc.), as well as on information gathered from
five governmental expert group meetings and a study contracted by the Commission

Member States were obliged to transmit the text of the provisions transposing into their
national law the obligations imposed on them under the Framework Decision by 28
November 2010. All Member States have notified the national measures taken to comply with
the Framework Decision.

Article 67(3) of the Treaty on the Functioning of the European Union (TFEU).

OJ L 328/55 of 6.12.2008.

ECtHR judgments of 23.9.1994 (

Jersild v. Denmark

) and 6.7.2006 (

Erbakan v. Turkey

). See also the

judgment of 9.7.2013 (

Vona v Hungary

), specifically on freedom of assembly and association.

Study on the legal framework applicable to racist or xenophobic hate speech and hate crime in the EU
Member States (JUST/2011/EVAL/FW/0146/A4).

2. M

AIN ELEMENTS OF THE

RAMEWORK

ECISION

The Framework Decision defines a common criminal-law approach to certain forms of racism
and xenophobia, namely with regard to two types of offences, commonly known as racist and
xenophobic hate speech and hate crime

As regards ‘hate speech’, Member States must ensure that the following intentional conduct is
punishable when 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,

when the conduct is carried out in a manner likely to incite violence or hatred against
such a group or one or more of its members.

Under Article 1(2) of the Framework Decision, Member States may choose to punish

only

conduct which is either (i) carried out in a manner likely to disturb public order or (ii) which
is threatening, abusive or insulting. Under Article 1(4), any Member State may make
punishable the act of denying or grossly trivialising the above-mentioned crimes

only

if these

crimes have been established by a final decision of a national court of this Member State
and/or an international court, or by a final decision of an international court only. This
possibility is not provided for the act of condoning the above-mentioned crimes.

With regard to ‘hate crime’, Member States must ensure that racist and xenophobic
motivation is considered as an aggravating circumstance, or alternatively that such motivation
may be taken into account by the courts in determining the applicable penalties.

3. T

RANSPOSITION BY THE

EMBER

TATES

3.1.

Racist and xenophobic hate speech (Article 1)

3.1.1.

Public incitement to violence or hatred

While the criminal codes of most Member States contain provisions that deal with conduct
falling under ‘incitement to violence or hatred’, the terminology used (‘provoking’, ‘stirring
up’, ‘propagation’, ‘promoting’, ‘instigating’, ‘urging’, etc.) and the criteria applied vary. DK,
FI and SE do not have specific provisions for the conduct of incitement and use provisions
which incriminate threatening, insulting, abusive, defamatory or contemptuous language on
the basis of race, colour, religion or belief, national or ethnic origin.

The majority of Member States make specific reference to both violence and hatred (BE, BG,
DE, EE, ES, EL, FR, HR, IT, CY, LV, LT, LU, MT, NL, AT, PT, SI, SK). The incrimination
of public incitement to both violence and hatred is relevant for the effectiveness of this
instrument. Whereas EE, EL and PT make reference to both terms, EE requires a resulting
danger to the life, health and property of a person, EL incriminates inciting

to acts or actions

likely to lead to hatred or violence

and PT requires an additional organisational element on

These terms are not, however, used by the Framework Decision.

the part of alleged perpetrators, neither of which is provided for by the Framework Decision.
While CZ, IE, HU, PL, RO and UK legislation expressly mentions only hatred, IE and UK
consider the concept of violence to be effectively covered by the term hatred, CZ considers it
to be covered in certain circumstances, and HU considers it to be covered through national
case law.

Under the Framework Decision, the victims of incitement comprise a group of persons or a
member of such group. Twelve Member States (BE, DE, EL, FR, HR, CY, LT, LU, MT, AT,
PT and SK) expressly mention groups and individual members in accordance with the
Framework Decision; in NL incitement to hatred is directed

against persons

while incitement

to violence is directed against

a person

. Eight Member States (CZ, DK, IE, ES, HU, RO, FI

and SE) only make express reference to a group of people. Seven Member States make no
express reference to groups or individuals. According to BG, LV, PL and SI, their respective
offences cover acts against both groups and individuals; EE, IT and UK have provided no
detailed information. In EE incitement is incriminated if it results in danger of a person.

The Framework Decision comes into play when the victims of incitement are defined by
reference to race, colour, religion, descent or national or ethnic origin. The list of grounds has
not been transposed in all Member States but the objective appears to be generally met. BE,
HR, CY and SK make express mention of all the grounds and LU appears to have done so
with family status corresponding to the term descent. DK, IE, AT, PT, SE and UK mention all
the grounds apart from descent, while BG, DE, ES, FR, IT, LV and HU omit references to
both colour and descent. MT and SI omit references to descent and national origin, while LT
makes no mention of colour and ethnic origin. CZ, EL, NL, PL and RO omit references to
colour, descent and national origin. The term origin (EE, FR, SI and FI) and ethnic origin
(RO) can be considered to be of equal meaning to the term descent. The term nationality (BG
and LT) appears not to reflect the broader meaning of the term national origin.

3.1.2.

Public dissemination or distribution of tracts, pictures or other material inciting to
violence or hatred

The Framework Decision stipulates that acts of public incitement to violence or hatred by
public dissemination or distribution of tracts, pictures or other material shall also be
criminalised, indicating that not only oral communication should be covered. As required, the
majority of Member States mention the specific means of dissemination in the provisions
dealing with the offence itself (BE, BG, DE, EL, IE, FR, HR, CY, LT, LU, MT, NL, PL, PT
and UK). However, other Member States refer to general interpretation sections of the
Criminal Code (CZ, HU and SK) or point to official reports (FI) or preparatory works (SE) on
the matter. LV refers to case law in which online communication is penalised. ES uses the
expression

disseminates offensive

information

and IT the term

propagates ideas

. EE, AT and

SI stipulate only that the act must be committed publicly and DK publicly or with the
intention of wider dissemination.

3.1.3. Public condoning, denial or gross trivialisation of genocide, crimes against

humanity and war crimes

The Framework Decision stipulates that Member States must criminalise the public
condoning, denial and gross trivialisation of the crimes defined in Articles 6, 7 and 8 of the
Statute of the ICC (crimes of genocide, crimes against humanity and war crimes), 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 when the conduct is carried out in a manner
likely to incite to violence or hatred against such a group or a member of such a group.

This provision can be transposed without an express reference to the ICC Statute if the
relevant national legislation provides for definitions of genocide, crimes against humanity and
war crimes which mirror the Statute. Eight Member States (BG, HR, CY, LU, LT, MT, SI and
SK) criminalise the three types of conduct (i.e. publicly condoning, denying and grossly
trivialising). CY, LU, MT, SI and SK make express reference to, or very closely reproduce,
the aforementioned articles of the Statute. SK requires that the conduct must vilify or threaten
the group or individual.

Seven Member States do not expressly refer to all three types of conduct, with ES, FR, IT and
PL referring only to condoning, PT to denying and LV and RO to condoning or denying (RO
incriminates

minimisation

only through distribution of materials). LV and PT refer to all

international crimes while RO refers to genocide and crimes against humanity, and ES and IT
only to genocide.

In terms of the requisite effect of the conduct being likely to incite to violence or hatred, FR,
IT, LV, LU and RO do not require that the conduct be carried out in a manner likely to incite
to violence and hatred, while BG, ES, PT and SI require more than a mere likelihood of
incitement.

Thirteen Member States (BE, CZ, DK, DE, EE, EL, IE, HU, NL, AT, FI, SE and UK) have no
criminal-law provisions governing this conduct. DE and NL state that national case law
applicable to Holocaust denial and/or trivialisation would also apply to the conduct covered
by this article.

3.1.4.

Public condoning, denial or gross trivialisation of the crimes defined in the Charter
of the International Military Tribunal

The Framework Decision obliges Member States to criminalise the public condoning, denial
and gross trivialisation of crimes against peace, war crimes and crimes against humanity
committed by major war criminals of the European Axis countries. Such conduct can be
considered as a specific manifestation of antisemitism when it takes place in a way that is
likely to incite to violence or hatred. It is therefore essential that this conduct be incriminated
under national penal codes.

This provision can be transposed without a specific reference to the Charter of the
International Military Tribunal, as long as it is evident that it refers to specific historical
crimes committed by the European Axis countries. FR, CY, LU and SK make explicit
reference to the Charter of the International Military Tribunal, but FR law is currently limited
to

contesting

crimes and LU law does not refer to crimes against peace.

Six Member States (BE, CZ, DE, LT, HU and AT) make reference to the

National Socialist

regime

Nazi Germany

as the relevant perpetrators of these crimes. Of these 6, BE makes

specific reference to genocide only, while CZ and HU refer to genocide and other crimes
against humanity. RO makes reference to denial and condoning of the Holocaust, referring to

minimisation

only in relation to the distribution of materials. SI refers to denial, condoning

and trivialisation of the Holocaust. LT and PL limit the incrimination by referring to crimes
committed by the National Socialist regime

against the Lithuanian or Polish nation or

citizens

, respectively, with PL making reference only to denial in this respect.

The ECtHR has stated that ‘

denying crimes against humanity constitutes one of the most serious forms

of racial defamation of Jews and of incitement to hatred of them

’ (

Garaudy v. France

, judgment of

24.6.2003). Moreover, the denial or revision of ‘

clearly established historical facts — such as the

Holocaust — […] would be removed from the protection of Article 10

[freedom of expression]

Article 17

’ [prohibition of abuse of rights] of the ECHR (

Lehideux and Isorni v. France

, judgment of

23.9.1998).

The remaining 15 Member States (BG, DK, EE, EL, IE, ES, HR, IT, LV, MT, NL, PT, FI, SE
and UK) have no specific provisions criminalising this form of conduct. NL, FI and UK have
submitted sentencing rulings for trivialisation, condoning and denial of the Holocaust, based
on criminal-law provisions punishing respectively incitement, ethnic agitation or stirring up of
hatred.

3.1.5. Optional

qualifiers

Certain Member States have made use of the option provided by Article 1(2) allowing
Member States to punish only hate speech which is either (i) carried out in a manner likely to
disturb public order or ii) which is threatening, abusive or insulting. CY and SI mirror this
provision by providing for both alternatives mentioned. AT makes the crime of incitement to
violence (not to hatred) dependent on it being likely to disturb public order. DE makes all
conduct mentioned above dependent on being capable of disturbing the public peace.
Similarly, HU case law points to such conduct being dependent on a likely disturbance of
public peace. MT appears to make the crime of incitement to violence or hatred dependent on
it being threatening, abusive or insulting while, like LT, the crime of condoning, denial or
trivialisation is dependent on either of the two options. IE and the UK make the conduct of
stirring up hatred dependent on it being threatening, abusive or insulting.

As regards the option provided by Article 1(4), FR, CY, LT, LU, MT, RO and SK have
chosen to use it in relation to the conduct of publicly denying or grossly trivialising the crimes
defined in the ICC Statute. CY, LT, LU, RO and SK use this possibility in relation to the
conduct of publicly denying or grossly trivialising the crimes defined in the Charter of
International Military Tribunal

3.2.

Instigation, aiding and abetting (Article 2)

With regard to Article 2, which deals with the instigation and aiding and abetting of the
crimes listed in Article 1, practically all Member States apply the general, horizontal rules
regulating such behaviour

3.3.

Criminal penalties (Article 3)

The large majority of Member States have implemented the requirement that conduct
involving hate speech is punishable by criminal penalties of

a maximum

of at least between 1

and 3 years of imprisonment. The maximum penalty in relation to hate speech ranges from 1
year (BE) to 7 years (UK, in the case of a conviction on indictment), and several Member
States (BE, EL, IE, FR, CY, LV, LT, LU, NL, PL, RO, FI, SE and UK) afford the courts the
option of imposing a fine as an alternative to imprisonment. The maximum penalty in relation
to public condoning, denial or gross trivialisation of crimes ranges from 1 year and a fine
(BE) to 20 years (AT), with DE, FR, CY, LV, LT and RO giving the courts the alternative of
imposing a fine or other penalty.

3.4.

Racist and xenophobic hate crime (Article 4)

The Framework Decision requires Member States to specifically address racist and
xenophobic motivation in their criminal codes or, alternatively, ensure that their courts take
such motivation into consideration in the determination of penalties. Due to the discriminatory
nature of racist and xenophobic motives and their impact on individuals, groups and society at
large, Member States must ensure that racist and xenophobic motives are properly unmasked
and adequately addressed.

This option cannot be used for the act of condoning these crimes.

It appears that only MT dedicates a specific provision to instigation, aiding and abetting of these crimes.

Fifteen Member States (CZ, DK, EL, ES, HR, IT, CY, LV, LT, MT, AT, RO, FI, SE and SK)
have made use of the first option provided for in Article 4 by stipulating in their criminal
codes that racist and xenophobic motivation

shall

be considered an aggravating circumstance

with regard to

all crimes

. Eight Member States (BE, BG, DE, FR, HU, PL, PT and UK)

stipulate that a racist or xenophobic motivation shall be considered an aggravating
circumstance with regard to certain

(often violent)

crimes such as murder, serious bodily harm

and other violence against persons or property. Three Member States out of the latter group
also use the second option provided for in Article 4, as they have criminal-law provisions
stating that racist motivation

may

be taken into account by the courts (BE) or have provided

case law and detailed statistics which demonstrate that racist and xenophobic motivation is
taken into consideration (DE and UK).

PL, PT and SI refer to general criminal-law provisions which stipulate that the general
motivation of the perpetrator shall be considered and EE refers to the aggravating
circumstance of other base motives. HU refers to a considerable amount of registered hate
crimes and convictions but has not yet provided the relevant case law. NL refers to an official
guidance document which states that racist or xenophobic motivation should be taken into
account, while IE and LU simply state that motivation can always be considered by the courts.

3.5.

Liability of legal persons and applicable penalties (Articles 5 and 6)

Legal persons must be held liable for hate speech committed by a person who has a

leading

position

within the legal person or where lack of supervision by such a person has enabled the

hate speech to be carried out by a person under its authority. While the Framework Decision
does not oblige Member States to impose criminal sanctions, penalties must, in all cases, be

effective, proportionate and dissuasive

The legislation of most Member States (apart from EL, ES, IT and SK

) addresses the liability

of legal persons in the case of hate speech, the majority regulating the matter by means of
horizontal criminal code provisions

and the imposition of criminal fines.

Article 5 must be transposed with regard to

all

persons acting for the benefit of the legal

person. Some national laws are not clear on this point (BE, DK and LU). Others seem to add
conditions, such as the effect that the legal person must have

enriched itself

(BG), the

requirement that

the crime violates any duty of the legal person

(HR) and the rule that action

may only be taken against a legal person if the court had

previously

imposed punishment on a

natural person (HU).

3.6.

Constitutional rules and fundamental principles (Article 7)

FR, HU, SE and UK have referred to Article 7 of the Framework Decision in their
notifications.

The Commission pays particular attention to ensuring that the transposition of the Framework
Decision fully respects all fundamental rights as enshrined in the Charter of Fundamental
Rights, which result also from the constitutional traditions common to the Member States.

As established by the Charter of Fundamental Rights and the European Convention on Human
Rights, any limitation on the exercise of fundamental rights and freedoms must be provided
for by law and respect the essence of those rights and freedoms. Subject to the principle of
proportionality, limitations may only be made if they are necessary and genuinely meet

SK provides for a form of indirect liability by allowing for the ‘seizure of a monetary sum’.

FR has a specific system for certain crimes committed via the press which excludes liability of legal
persons.

objectives of general interest recognised by the Union or the need to protect the rights and
freedoms of others

The European Court of Human Rights has recognised that tolerance and respect for the equal
dignity of all human beings constitute the foundations of a democratic, pluralistic society.
Furthermore it has held that remarks directed against the Convention’s underlying values
could not be allowed to enjoy the protection afforded under Article 10 (freedom of
expression)

3.7.

Initiation of investigation or prosecution (Article 8)

Member States must ensure that investigations into or prosecution of hate speech are not
dependent on a report or an accusation made by the victim, at least in the most serious cases.
While the majority of Member States have specific, often horizontal criminal-law provisions
which ensure

ex officio

investigation and/or prosecution in the case of the majority of crimes,

including hate speech, certain Member States have provided case law, official statements and
other information to show that this provision is implemented in practice.

3.8.

Jurisdiction (Article 9)

The legislation of every Member State includes the territoriality principle under which
jurisdiction for hate speech offences is established with regard to conduct committed

in whole

or in part within its territory

. All Member States apart from IE and UK have also notified

criminal-law rules which specifically extend their jurisdiction to conduct committed

by one of

(their) nationals

. IT, PT and RO appear to exclude hate speech from this latter jurisdictional

rule.

Concerning legal persons, 21 Member States have provided no conclusive information as
regards the transposition of the rule that jurisdiction must be established when the conduct has
been committed

for the benefit of a legal person that has its head office in the territory of that

Member State.

Online hate speech is one of the most prevalent ways of manifesting racist and xenophobic
attitudes. Consequently, Member States should have the means to intervene in cases of online
hate speech. When establishing jurisdiction over conduct committed within their territory,
Member States must ensure that their jurisdiction extends to cases where the conduct is
committed through an information system, and the offender or materials hosted in that system
are in its territory. It appears that only CY fully transposes these jurisdictional rules into its
legislation. The legislation of DK, MT and SI makes specific reference to information
systems, and HR refers to the offence being committed through electronic press. CZ, LU, HU,
AT, PT, RO, SK and SE say that their general jurisdictional rules cover online hate speech
situations but have provided no detailed information. On the other hand, BE, BG, DE, FR and
UK have provided case law to show that their courts have taken cognizance of cases involving
information systems, the majority of which appear to establish jurisdiction when the offender
is physically present/resident in the relevant jurisdiction or when the material was accessible
in that jurisdiction or clearly addressed to that country’s public.

Provided by Article 52(1) of the Charter of Fundamental Rights, and similarly by Article 10(2) of the
European Convention on Human Rights specifically in relation to freedom of expression.

Judgments of 4.12.2003 (

Gündüz v. Turkey)

and of 24.6.2003 (

Garaudy v. France)

4. S

UGGESTED PRACTICES TO STRENGTHEN THE IMPLEMENTATION OF THE

RAMEWORK

ECISION

The information obtained from Member States has shown that the authorities responsible for
investigation and prosecution need practical tools and skills to be able to identify and deal
with the offences covered by the Framework Decision, and to interact and communicate with
victims.

They should have sufficient knowledge of relevant legislation and clear guidelines.

The existence of special police hate crime units, special prosecutors’ offices for hate speech
and crime, detailed guidelines, as well as specific training for police, prosecutors and judges
are good practices which may support the implementation of this legislation.

The exchange of information and good practices by bringing together law enforcement
officials, prosecutors and judges, civil society organisations and other stakeholders can also
contribute to better implementation.

Due to its special character, including the difficulty of identifying the authors of illegal online
content and removing such content, hate speech on the internet creates special demands on
law enforcement and judicial authorities in terms of expertise, resources and the need for
cross-border cooperation.

Underreporting is common for hate speech and hate crime

. Due to the nature of these

crimes, victims often resort to victim-support services, rather than reporting the crime to the
police. Speedy implementation of the Victims’ Directive is thus essential in order to protect
victims of hate speech and crime.

The existence of reliable, comparable and systematically collected data can contribute to more
effective implementation of the Framework Decision. Reported incidents of hate speech and
hate crime should always be registered, as well as their case history, in order to assess the
level of prosecutions and sentences. Data collection on hate speech and hate crime is not
uniform across the EU and consequently does not allow for reliable cross-country
comparisons

. The Commission has asked all Member States to provide it with figures about

the incidence and the criminal response to hate speech and hate crime. Data submitted by 17
Member States are presented in the Annex to this Report.

Racist and xenophobic attitudes expressed by opinion leaders may contribute to a social
climate that condones racism and xenophobia and may therefore propagate more serious
forms of conduct, such as racist violence. Public condemnation of racism and xenophobia by
authorities, political parties and civil society contributes to acknowledging the seriousness of
these phenomena and to actively fighting against racist and xenophobic speech and
behaviour

5. C

ONCLUSION

At present it appears that a number of Member States have not transposed fully and/or
correctly all the provisions of the Framework Decision, namely in relation to the offences of
denying, condoning and grossly trivialising certain crimes. The majority of Member States
have provisions on incitement to racist and xenophobic violence and hatred but these do not

The investigation of racist or xenophobic acts and the application of appropriate sanctions is necessary
in order to comply with fundamental rights as confirmed by ECtHR, judgments of 6.7.2005 (

Nachova

and Others v. Bulgaria

), 10.3.2010 (

Cakir v. Belgium

), 27.1.2011 (

Dimitrova and Others v. Bulgaria

See, in particular, the report from the European Union Agency for Fundamental Rights (FRA)

Making

hate crime visible in the European Union: acknowledging victims’ rights

2012.

Ibidem

See ECtHR judgments of 6.7.2006 (

Erbakan v Turkey

) and 16.7.2009 (

Féret v. Belgium

always seem to fully transpose the offences covered by the Framework Decision. Some gaps
have also been observed in relation to the racist and xenophobic motivation of crimes, the
liability of legal persons and jurisdiction.

The Commission therefore considers that the full and correct legal transposition of the
existing Framework Decision constitutes a first step towards effectively combating racism and
xenophobia by means of criminal law in a coherent manner across the EU.

The Commission will engage in bilateral dialogues with Member States during 2014 with a
view to ensuring full and correct transposition of the Framework Decision, giving due
consideration to the Charter of Fundamental Rights and, in particular, to freedom of
expression and association

Ref. Article 10 of Protocol No 36 of the Treaty of Lisbon. Infringement procedures for Framework
Decisions are not possible before 1 December 2014.

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