In view of Germany’s particular historic responsibility, the German EU Presidency has committed itself to returning the combating of racism and xenophobia throughout Europe to the political agenda. It will revive the negotiations on the Framework Decision to combat racism and xenophobia, which have been frozen since 2005. Under the Luxembourg Presidency, the Framework Decision was on the verge of a compromise. The goal is to attain minimum harmonisation of provisions on criminal liability for disseminating racist and xenophobic statements. These include, for example, public incitement to violence and hatred or the denial or gross minimisation of genocide out of racist or xenophobic motives. However, the Framework Decision will not seek to prohibit specific symbols such as swastikas.
1. Substantive content
Criminal liability will be imposed upon the following:
Public incitement to hatred and violence for reasons of racism or xenophobia will be criminalised. This applies in all cases for conduct that constitutes threats, insults or defamatory statements, and for conduct that is apt to disturb the public peace. The dissemination of writings with such content will be prohibited as well. The maximum penalty for such conduct will be at least one to three years in prison.
Public approval, denial or gross minimisation of genocide, crimes against humanity and war crimes within the meaning or Articles 6, 7 and 8 of the Statute of the International Criminal Court (“Rome Statute”) and pursuant to Article 6 of the International Military Tribunal of 1945 (Nuremberg Tribunal) against a group of persons or a member of such a group, defined according to the criteria of race, colour, religion, descent, or national or ethnic origin, will be criminalised.
Here as well, the maximum penalty will be at least one to three years in prison.
The Framework Decision does not identify specific cases of genocide, crimes against humanity or war crimes; rather, it refers to the Statute of the International Criminal Court and the International Military Tribunal of 1945, and thus creates abstract offences. Whether a concrete historic crime falls within these definitions would be decided by a court in each concrete and specific case. This occurred, for example, with regard to the Holocaust. Pursuant to the Draft, Member States have the possibility of making criminal liability dependent upon the determination by a national or international court that a concrete historic event constituted genocide, a crime against humanity, or a war crime.
The Framework Decision also provides that racist or xenophobic motives may be considered an aggravating factor in other criminal offences (e.g., bodily injury), or that such motives may be taken into consideration by the courts in fixing the penalty.
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.
The Framework Decision will include an express reference to the fundamental and human rights anchored in Europe and, in this context, will expressly call for respecting the right to freedom of expression. It will guarantee the Member States the necessary leeway for maintaining their established constitutional traditions.