Framework Decision on combating certain forms and expressions of racism and xenophobia by means of criminal law

The purpose of this Framework Decision is to ensure that certain serious manifestations of racism and xenophobia are punishable by effective, proportionate and dissuasive criminal penalties throughout the European Union (EU). Furthermore, it aims to improve and encourage judicial cooperation in this field.

ACT

Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law.

SUMMARY

As a follow-up to Joint Action 96/443/JHA, this Framework Decision provides for the approximation of laws and regulations of EU countries on offences involving certain manifestations of racism and xenophobia. Certain serious manifestations of racism and xenophobia must constitute an offence in all EU countries and be punishable by effective, proportionate and dissuasive penalties.

This Framework Decision applies to all offences committed:

• within the territory of the European Union (EU), including through an information system;
• by a national of an EU country or for the benefit of a legal person established in an EU country. To that end, the Framework Decision provides criteria on how to determine the liability of legal persons.

‘Hate speech’

Certain forms of conduct as outlined below, are punishable as criminal offences:

• public incitement to violence or hatred directed against a group of persons or a member of such a group defined on the basis of race, colour, descent, religion or belief, or national or ethnic origin;
• the above-mentioned offence when carried out by the 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 the Statute of the International Criminal Court (Articles 6, 7 and 8) and crimes defined in Article 6 of the Charter of the International Military Tribunal, when the conduct is carried out in a manner likely to incite violence or hatred against such a group or a member of such a group.

Instigating, aiding or abetting in the commission of the above offences is also punishable.

With regard to these offences listed, EU countries must ensure that they are punishable by:

• effective, proportionate and dissuasive penalties;
• a term of imprisonment of a maximum of at least one year.

With regard to legal persons, the penalties must be effective, proportionate and dissuasive and must consist of criminal or non-criminal fines. In addition, legal persons may be punished by:

• exclusion from entitlement to public benefits or aid;
• temporary or permanent disqualification from the practice or commercial activities;
• being placed under judicial supervision;
• a judicial winding-up order.

The initiation of investigations or prosecutions of racist and xenophobic offences must not depend on a victim’s report or accusation.

‘Hate crime’

In all cases, racist or xenophobic motivation shall be considered to be an aggravating circumstance or, alternatively, the courts must be empowered to take such motivation into consideration when determining the penalties to be applied.

RELATED ACTS

Report from the Commission to the European Parliament and the Council on the implementation of Council Framework Decision 2008/913/JHA on combating certain forms and expressions of racism and xenophobia by means of criminal law [ COM(2014) 27 final of 27.1.2014 - not published in the Official Journal].

The report highlights the fact that a number of EU countries have not transposed fully and/or correctly all the provisions of the Framework Decision, in particular in relation to the offences of denying, condoning and grossly trivialising certain international crimes.

The majority of EU countries are equipped with provisions criminalising public incitement to racist and xenophobic violence and hatred but a number of them do not fully transpose the offences covered by the Framework Decision. Gaps also remain in relation to the approach taken on racist and xenophobic motivation, the liability of legal persons and jurisdiction.

The Commission is engaging in bilateral dialogues with EU countries in the course of 2014 with a view to ensuring full and correct transposition of the Decision.

last update 15.06.2014