The Council of EU Justice Ministers in Luxembourg today achieved political agreement on a Framework Decision on combating racism and xenophobia. This allowed the negotiations at the European level, underway since 2001, to be successfully concluded under the German EU Presidency. “Europe is determined to forcefully defend its common values and to rigorously punish those who treat these values with contempt for humanity. In the future, there will be binding minimum harmonisation throughout Europe of the provisions on criminal liability for disseminating racist and xenophobic statements. Public incitement to violence and hatred, as well as the denial or gross trivialisation of genocide out of racist or xenophobic motives, will be sanctioned across Europe. With this, we are sending a clear signal against racism and intolerance,” stressed Brigitte Zypries, Chair of the EU Council of Justice Ministers.
Some Member States have entered a parliamentary reservation in order to involve their national parliaments.
1. Substantive content
The Framework Decision provides for minimum harmonisation of the criminal provisions to combat racism and xenophobia. The focus is on the prohibition of public incitement to violence and hatred against persons of a different race, colour, religion, or national or ethnic descent. This prohibition is the common prerequisite for imposing criminal liability for any conduct of this sort. However, the Framework Decision does not prohibit specific symbols per se, such as swastikas.
► Racist or xenophobic agitation
Public incitement to violence and hatred for reasons of racism or xenophobia will be criminalised.
Example: In a public assembly there is incitement to assault persons of a particular colour, to devastate shops of a certain ethnic group, to provoke fights at meeting places of a particular population group, or references are made to persons of particular ethnic descent as “parasites” who need to be “eliminated.”
The dissemination of writings with such content will be prohibited as well.
The provisions of the Framework Decision do not apply directly; rather, Member States must implement them into their national law. In order to address the tension that exists between this prohibition and freedom of expression, the Member States will be permitted to make criminal liability dependent upon whether the incitement or statements simultaneously amount to threats, verbal abuse or insults, or whether the conduct in question is apt to disturb the public peace.
The maximum penalty for such conduct is to be at least one to three years in prison.
► Public approval, denial or gross trivialisation of genocide, crimes against humanity and war crimes if this amounts to racist or xenophobic agitation
Public approval, denial or gross trivialisation of genocide, crimes against humanity and war crimes will be criminalised if the crime is directed against a group of persons because of their race, colour, religion, descent or national or ethic origin.
In implementing this provision of the Framework Decision, Member States are compelled to criminalise cases where public approval, denial or gross trivialisation simultaneously amounts to racist or xenophobic agitation.
Example: Somebody publicly claims that an act of genocide, the commission of which has been established as a fact by an international court, never happened and was invented by the ethnic group concerned solely for the purpose of being able to claim compensation payments. This allegation would not only deny the genocide committed against the ethnic group concerned, but would also incite hatred against this group. In the future, all Member States would be compelled to criminalise such a case.
Member States are at liberty to go beyond this and criminalise the denial, approval or gross trivialisation of such facts even if, in a given case, the expression does not directly incite hatred and violence against the affected population group.
In this way, a compromise was reached between those states which have no criminal provision on the public approval, denial or gross trivialisation of genocide and are reluctant to adopt such a provision in general form, and those states whose law already contains such criminal offences and who wish to go beyond this in sanctioning them.
Moreover, the Framework Decision does not identify any specific historical events as incidents of genocide, crimes against humanity or war crimes; rather, it creates abstract offence elements. What constitutes genocide, a crime against humanity or a war crime is determined by the definitions contained in the Statute of the International Criminal Court (“Rome Statute”) and the Charter of the International Military Tribunal of 1945 (Nuremberg Tribunal).
Whether a specific historical crime falls within these definitions must be decided in each concrete case by the court which has jurisdiction. In the case of the Holocaust, for example, this was done by the Nuremberg Tribunal.
Pursuant to the Draft, Member States also have the possibility to make criminal liability dependent upon the determination by a national or international court that a concrete historical event constituted genocide, a crime against humanity, or a war crime.
The maximum penalty for approval, denial or gross trivialisation of genocide, crimes against humanity and war crimes will also be at least one to three years in prison.
► Racist and xenophobic motives are to be considered aggravating factors in other criminal offences
The Framework Decision provides that racist or xenophobic motives are to be considered an aggravating factor in other criminal offences (e.g., bodily injury) and that such motives may be taken into consideration by the courts in fixing the penalty.
Example: Right-wing extremist hooligans beat up a dark-skinned man because they think he is a foreigner. In such a case, their xenophobic attitude would have to be taken into account as an aggravating factor.
► No criminal complaint necessary
Pursuant to the Framework Decision, criminal prosecution authorities must ex officio initiate an investigation into the offences listed in the Framework Decision. The injured party need not file a criminal complaint.
► Protecting the right to freedom of expression
The Framework Decision contains various provisions which take into consideration the special tensions that exist between the prohibition and the right to freedom of expression.
Firstly, it stipulates that the Framework Decision does not affect the duty of the Member States to respect fundamental rights and general principles of law, and in this context specifically refers to the right to freedom of expression.
Secondly, the Framework Decision allows Member States to make criminalisation dependent on a threshold of significance. They can choose to limit criminal liability to cases where the conduct in question simultaneously amounts to a threat, verbal abuse or insult, or where the conduct in question is apt to disturb the public peace. In this way, it guarantees the Member States the necessary flexibility to maintain their established constitutional traditions.
2. Further procedure:
Since important amendments have been made to the Framework Decision subsequent to the original proposal of the EU Commission, which was drawn up with the involvement of the European Parliament in 2002, the European Parliament must again be consulted. The Council will subsequently assess the European Parliament’s observations before formally adopting the Framework Decision.