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Conference Proceedings
Conference on Hate Crimes
in South-East Europe
Sarajevo, 8 November 2016
Title: Conference Proceedings
Conference on Hate Crimes in South-East Europe
Sarajevo, 8 November 2016
Publisher: Faculty of Criminal Justice, Criminology and Security
Studies, University of Sarajevo
Year: 2017
Address of Publisher: Zmaja od Bosne 8, 71 000 Sarajevo, Bosnia and Herzegovina
Reviewers:
• Ljiljana Filipović, PhD, Judge of the Supreme Court of the Federation of
Bosnia and Herzegovina
• Ljiljana Ivanovska Šopova, President of the Appellate Court Skopje
• Ivan Jovanović, LLM, Transitional Justice and Rule of Law Expert
• Azra Junuzović, PhD, Deputy Head of Tolerance and Non-Discrimination,
OSCE/ODIHR
• Professor Vlado Kambovski, PhD, former President of the Macedonian
Academy for Arts and Sciences
• Professor Marija Lučić-Ćatić, PhD, Faculty of Criminal Justice, Criminology
and Security Studies, University of Sarajevo
• Miodrag Majić, PhD, Judge of the Appellate Court Belgrade
DTP:
Agency “FORMA GRAF”
Electronic Edition: www.fkn.unsa.ba
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CIP-Katalogizacijaupublikaciji
NacionalnaiuniverzitetskabibliotekaBosneiHercegovine,Sarajevo
343.4(4-12)(063)(082)
CONFERENCEHate-crimesinSouth-EastEurope(2016;Sarajevo)
Conferenceproceedings[Elektronskiizvor]/ConferenceHate-crimesin
South-EastEurope,Sarajevo,November8th,2016.-El.knjiga.-Sarajevo:Fakultet
zakriminalistiku,kriminologijuisigurnosnestudije=FacultyofCriminalJustice,
CriminologyandSecurityStudies,2017.-275str.
Načindostupa(URL):http://www.fkn.unsa.ba.-Nasl.snasl.ekrana.-Izvoropisan
dana21.12.2017.-Bibliografijaibilješkeuztekst.
ISBN978-9926-451-00-4
COBISS.BH-ID24772358
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Sarajevo, 2017
Conference Proceedings
Conference on Hate Crimes
in South-East Europe
Sarajevo, 8 November 2016
The publication Conference Proceedings: Conference on Hate Crimes in South-East
Europe, Sarajevo, 8 November 2016 is the result of the Conference on Hate Crimes
in South-East Europe organized by the OSCE Mission to Bosnia and Herzegovina in
cooperation with the Faculty of Criminal Justice, Criminology and Security Studies
of the University in Sarajevo and in partnership with the OSCE Presence in Albania,
OSCE Mission in Kosovo, OSCE Mission to Montenegro, OSCE Mission to Serbia,
and OSCE Mission to Skopje in November 2016. It represents a signicant example
of cooperation between the academic community and practitioners at the regional
level, the rst of this kind in the South-East Europe. We hope that the publication,
in addition to lling the gap in the literature on this topic from the regional
perspective, will trigger further discussion and reections within the academic
community and within the institutions that deal with this issue in practice. All
published papers are double-blind reviewed and classied as scientic papers.
The Proceedings are published in the original languages of the respective authors
under the title Zbornik radova: Konferencija Krivična djela počinjenja iz mržnje u
Jugoistočnoj Evropi, Sarajevo, 8. novembar/studeni 2016. We use this opportunity
to thank all those who contributed directly and indirectly to the organization and
the overall success of the Conference and to the publication of the Proceedings.
The Organization for Security and Co-operation in Europe (OSCE) supported the publication of
the Proceedings. Opinions expressed therein do not necessarily reect standpoints of the OSCE but
individual viewpoints and opinions of their authors expressed in the context of the Conference on
Hate Crimes in South-East Europe organized by the OSCE Mission to Bosnia and Herzegovina in
cooperation with the Faculty of Criminal Justice, Criminology and Security Studies of the University
in Sarajevo and in partnership with the OSCE Presence in Albania, OSCE Mission in Kosovo, OSCE
Mission to Montenegro, OSCE Mission to Serbia, and OSCE Mission to Skopje in November 2016.
FAKULTET ZA KRIMINALISTIKU,
KRIMINOLOGIJU I SIGURNOSNE
STUDIJE-FKKSS
Conference Proceedings: Conference on Hate Crimes in South-East Europe,
Sarajevo, 8 November 2016
7
CONTENTS
Harun Išerić and Mirza Hebib
Hate Crimes in Western Balkan States and the Process
of Harmonization with the EU Law ................................................................. 13
Milena Bogdanić and Jelena Rakić
Criminal Justice Response to Hate Crimes on the Territory
of the Republic of Serbia and in the Region .................................................... 47
Maja Mirković
The Relationship Between Hate Crimes and Inciting Hatred
in the Applicable Criminal Legislation of the
Federation of Bosnia and Herzegovina – A Practical Review ......................... 59
Lars Petter Soltvedt and Aleksandar R. Ivanović
Impact of the Economic Crisis on Occurrence of Criminal Offences
of Hate Crimes on the Territory of Countries of Former Yugoslavia .............. 73
Erinda Bllaca Ndroqi
(In)Human Faces of Hate Crimes/Comparative Analysis on
Different Aspects of the Manifestation of Hate Crimes in Albania ................. 87
Aleksandar Markoski
Religious Hatred as a Motive for Perpetration of Crimes Against Property ... 95
Žaneta Poposka
Hate Crime on Ground of Disability – Macedonian Case ..............................117
Kire Babanoski and Vesna Trajanovska
Criminalistic-Operational and Procedural Aspects of
Hate Crime Investigations ............................................................................ 135
Atanas Georgievski
Mapping Obstacles in Processing Hate Crimes in
the Republic of Macedonia ............................................................................ 155
Velibor Lalić and Slađana Đurić
Security Implications of Hate Crimes in Bosnia and Herzegovina ............... 179
Besa Ari
Hate Crimes as a Driver to Violent Extremism – Are Victims of
Hate Crimes at Risk of Becoming Involved in Violent Extremism? ............. 205
Vesna Stefanovska
Application of Restorative Justice in Hate Crime Cases .............................. 227
Ervis Martani
Multiculturalism and Interculturalism Policies in the
Western Balkans Countries as a Tool to Counter Hate Crimes...................... 247
Conference Proceedings: Conference on Hate Crimes in South-East Europe,
Sarajevo, 8 November 2016
8
Conference Proceedings: Conference on Hate Crimes in South-East Europe,
Sarajevo, 8 November 2016
9
INTRODUCTION
As Bogdanić and Rakić point out in this volume, hate crimes have been with
us ‘since the distant past’. Indeed, people acting on their racism, homophobia,
disablism and religious intolerance in harmful and discriminatory ways across the
world is not new. However, as the contributions to this book illustrate, the strength
of the hate crime approach is that it takes a victim and community perspective that
is grounded in human rights to both make visible a violence that is often hidden
from public consciousness and to highlight actions that can bring victims and
communities into safety, justice and the rule of law.
At its best, framing and addressing this targeted violence as hate crime helps
to understand it as an issue that requires action and collaboration, including passing
laws, training public authorities, providing victim support and ensuring effective
recording. This approach encompasses and supports diverse coalitions both across
groups working to stop homophobic, Islamophobic, racist, antisemitic and disablist
violence, and between civil society and public authorities.
Jurisdictions with markedly different histories and contexts of discrimination
have adopted the hate crime concept to varying and increasing degrees, and a canon
of international human rights standards and commitments has burgeoned in recent
years. While the Organisation for Security and Cooperation in Europe (OSCE)
was the rst to include ‘hate crime’ in its norms and standards, other international
organisations have followed, moving from a relatively narrow focus on monitoring
and addressing racist and religious violence to adopting a more global concern
with ‘hate crime’ and the diverse violence and harm it encompasses. Civil society
organisations spanning a range of groups that experience marginalisation and
discrimination are increasingly relying on this growing body of international norms
and standards to call for better recognition and responses to hate crime.
At the same time, there is strong evidence that ‘hate crime’ can be understood
and addressed quite differently across the world. A look at the OSCE’s annual
hate crime reports reveals signicant disparities in legal and policy approaches
across the region. Established reasons for the huge differences in ofcially recorded
hate crimes include under reporting by victims and communities as well as low
awareness and diverse recording practices on the part of public authorities. But
beyond the problems of under reporting and under recording, these disparities
suggest deeper differences in how targeted violence is conceptualised across our
diverse societies. These differences need to be better understood if the hate crime
approach is to be adopted consistently.
Several authors in this book point to an overarching problem that might go
some way to explaining these differences. As Lalić points out there is a lack of
research on, ‘[the] implications of hate crimes in post conict, ethnically and
Conference Proceedings: Conference on Hate Crimes in South-East Europe,
Sarajevo, 8 November 2016
10
religiously divided societies”. Indeed, the literature is heavily focused on Anglo-
American contexts, producing theoretical and empirical insights that are not always
linguistically, culturally and legally relevant or transferable to other contexts. While
there has been excellent work on monitoring hate crime in the region, not least by
the OSCE Mission to Bosnia and Herzegovina in its monthly and annual hate crime
reporting, there are important questions that have remained unanswered until now.
How is hate crime understood and addressed in the Western Balkans and what are
the implications for research and practice?
Using a mix of literature review and qualitative research, the authors in this
volume examine the legal, policy and social elements of hate crime in the Western
Balkans to provide a rich, current and dynamic picture of the region. Common
themes connect the authors’ contributions. Several make the case that hate crime
in post-conict states with deep social, ethnic and religious divisions represent
signicant and particular threats to stability and security. Others detail the serious
data decit about hate crime’s prevalence and impact and point to the important
distinction between having the right processes and software in place to record
hate crimes on the one hand and actually implementing this system through the
training and practice guidance that allow effective investigation, prosecution and
sentencing, on the other. Political leaders are identied as having a major role to
play in raising awareness about the problem and condemning incidents when they
occur. A focus on victims and affected communities and the need to amplify their
voice and provide strong support is a vital thread across these contributions.
The importance of a full consideration of the security aspects of hate crime
emerges as a key issue in the region. Martani argues that effective responses to hate
crime must be considered in the broader context of policies that govern minority
relations, arguing that the securitization of hate crime issues are to be avoided,
and recommending the more constructive concepts of interculturalism and multi
culturalism in their place. Lalić points to the under-theorised connection between
hate crime and security studies, which in turn limits efforts to understand personal
as well as public security in post conict, divided societies. Lalić persuasively
argues that work should be done to better understand connections across these
disciplines, which can ultimately develop better policy solutions and institutional
capacities to holistically address the range of security threats posed by hate crimes.
Ari looks at the under-explored conceptual and policy connections between hate
crime and violent extremism, arguing that this gap in knowledge is best addressed
by civil society, academia and governmental bodies working together.
Detailed examinations of investigation and prosecution practice add an
essential perspective to the regional picture. Georgievski gives a forensic account
of the stay of play on hate crime law, policy and practice in Macedonia. Using four
cases he traces the key barriers to implementation of the country’s hate crime laws,
with evidenced suggestions that could serve as a blue print for other contexts to
help diagnose problems within current systems while setting priorities for action.
Conference Proceedings: Conference on Hate Crimes in South-East Europe,
Sarajevo, 8 November 2016
11
Mirković reviews legislative developments and practice in Bosnia and
Herzegovina to conclude that while the country has recently achieved harmonisation
with EU standards, a tendency to erroneously to prosecute hate crimes using
incitement to hatred provisions, challenges the hate crime concept and potentially
undermines the rule of law.
Babanoski and Trajanovska give a detailed account of the sometimes complex
steps that need to be taken to effectively investigate hate crimes, pointing to the
essential point that distinguishes hate crimes: the need to prove motivation. They
argue for the ‘direct participation’ of practitioners, civil society, and legislators
to ‘encourage initiatives and debates about good practices and offer ideas and
solutions for overcoming this problem.’
Providing a very useful overview of the regional legislative framework on
hate crime, alongside some Serbian case studies, Bogdanić and Rakić illustrate the
strengths and limitations of the court’s approach. They build a compelling argument
to include the hate element in the offence as opposed to treating it as a sentence
enhancement, both to improve access to justice for victims and, equally important,
to protect the rights of the defendant.
Incidents against disabled people tend to be hidden by approaches to targeted
violence that are commonly shaped and dened by ethnically motivated incidents.
Bllaca Ndroqi and Poposka provide a welcome focus on the underexplored area
of disability hate crime, both making the point that a chronic lack of data obscures
its visibility. In the context of Albania, Bllaca Ndroqi persuasively argues that
crimes against disabled people are further hidden from the public consciousness
when re-labelled and re-framed to remove the criminal element, and that the deeply
embedded marginalization of disabled people needs to be tackled in tandem. In
the context of Macedonia, Poposka provides a useful overview of the international
framework relating to disability hate crime. She persuasively argues that the
low gures are directly related to insufcient support to disabled victims and
recommends that a national victimisation survey is adopted to understand the real
levels of victimisation as well as people’s perception of the quality of the police
response.
The book provides deeply informative detail on the current legal and policy
picture in the region. Setting out a comprehensive overview of relevant EU law
and policy that will serve as an excellent and longstanding resource for people
with an interest in the region, Išerić and Hebib illustrate that unlike several current
members of the EU, all countries in the Western Balkans have harmonized their
legislation with the EU Framework Decision on Racism and Xenophobia. However,
they argue that a lack of specialist hate crime roles alongside limited training are
barriers to achieve the ultimate goal of effective implementation.
Conference Proceedings: Conference on Hate Crimes in South-East Europe,
Sarajevo, 8 November 2016
12
Markoski points to the essential need to address religious hatred both in terms
of effectively prosecuting these crimes and addressing some of the root of these
offences in the form of intolerant and extreme speech by religious leaders and the
importance of secular and civil education.
Soltvedt and Ivanović point to a lack of interdisciplinary work across those
working on hate crime and economists, that is especially relevant in countries
recovering from ethnic conict. And, reminding us of the limitations of a purely
retributive approach, Stefanoska explores the literature on restorative justice and
critically analyses its application to hate crime. She powerfully argues that in multi-
ethnic societies like the Republic of Macedonia, restorative justice can provide a
potentially transformative space to bring people together victims, perpetrators
and their families to understand the harms of hate and how to begin to repair it.
The nature of hate crime is ever evolving. The refugee crisis, the Brexit backlash,
fallout from terrorist attacks, and deepening divisions in society all dene and
challenge our ideas about hate crime and how it should understood and responded
to. But in all this change, we are joined by the fact that people from marginalised
groups throughout the world experience violence and bigotry that manifests itself
as much in shocking murders and assaults as it does in the daily mundane grafti,
property damage and harassment, whether on the streets or online. Research that
is rooted in the lived experience of communities is essential to generate those deep
and particular insights into successes and barriers that are needed for understanding
and progress at the national and regional levels. At the same time the developing
international framework of human rights norms and standards not only remind us
of the universality of the pain and exclusion that victims and communities suffer,
but keep our diverse contexts connected and able to learn from each other. This
volume provides denitive insights into the social, legal institutional and political
faces of hate crime in the region, and offers a major contribution for scholars, civil
society and practitioners in other contexts working to move forward from conict
and break down barriers to justice and safety for communities.
Joanna Perry
International Network for Hate Studies
Conference Proceedings: Conference on Hate Crimes in South-East Europe,
Sarajevo, 8 November 2016
13
HATE CRIMES IN WESTERN BALKAN STATES AND THE
PROCESS OF HARMONIZATION WITH THE EU LAW
Harun Išerić
1
Mirza Hebib
2
ABSTRACT
Hate crimes are a particularly complex topic in post-conict countries
and transition countries, such as the Western Balkans countries. By signing the
Stabilization and Association Agreement these countries took on the commitment
to harmonize its legislation with the EU acquis. The EU legislation regulating hate
crimes is composed of the Victims’ Rights Directive and the Framework Decision
on Combating Certain Forms and Expressions of Racism and Xenophobia by
Means of Criminal Law. The main goal of the paper is to analyse how hate crimes
are regulated in Bosnia and Herzegovina, Serbia, Montenegro, Macedonia, Albania,
and Kosovo and to what extent are these laws harmonized with the EU legislation.
Using the normative method, the rst part of the paper analyses the EU
legislation and presents conclusions as to what the future member states should
do, i.e. what is recommended to be done in this eld. Applying the comparative-
legal method, the second part of the paper analyses the legislation of the Western
Balkans. Special attention is given to the situation in Bosnia and Herzegovina. The
last part of the paper contains conclusions regarding the level of harmonization
and what still needs to be done in this process. The biggest problem in drafting
this paper was the lack of up to date data on hate crimes and outdated and poorly
designed websites of relevant institutions.
The results reveal the legislation to be largely unharmonized. Serbia has
achieved a slightly more signicant progress in this regard. In terms of the remaining
more tangible measures, the harmonization with the EU law is yet to be carried out.
Keywords: hate crimes, EU law, harmonization, Western Balkans.
1
Harun Išerić, BA iur. Postgraduate student at the Faculty of Law, University of Sarajevo. E-mail:
harun.iseric@gmail.com
2
Mirza Hebib, BA iur. Postgraduate student at the Faculty of Law, University of Sarajevo. Employee
of BH Telecom Company. E-mail: hebib_mirza@yahoo.com
Conference Proceedings: Conference on Hate Crimes in South-East Europe,
Sarajevo, 8 November 2016
14
1. INTRODUCTION – HARMONIZATION OF LEGISLATION WITH
THE EU ACQUIS
By signing the Stabilization and Association Agreement with the European
Union [EU]
3
, the countries of Western Balkans took on the commitment to
harmonize its legislation with the EU acquis.
4
In the meantime, two countries have
started the accession negotiations:
5
Montenegro and Serbia. Montenegro and Serbia
opened the Chapter 23 – Judiciary and Fundamental Rights in December 2012 and
July 2016 respectively. One of the Chapter 23 thematic units relates to fundamental
rights. The issue that will be considered within this thematic unit is the prevention
of hate crimes (Đurić & Mraljević Nišavić, 2013). The harmonization of legislation
with the EU law is a process whereby “national legislation complies with objectives
provided for in the EU acts” (Directorate for European Integration of Bosnia and
Herzegovina [DEI BiH], 2005, p. 57). The main instruments for harmonization are
directives as they are transposed into the national legislation and thus the national
legislation is harmonized with the EU legislation. EU law is a “body of primary
and secondary law and European Court of Justice case law, including all treaties
between the member states and international agreements between a member state
and the Union or the then Community related to the functioning of the Union or
achieving its goals” (Misita, 2014, p. 89).
The EU law is very scarce in the area of hate crimes. Namely, it is regulated
by a Directive
6
, a Framework Decision
7
and two political documents: a Resolution
3
The rst Western Balkans country to sign the Agreement was Macedonia on 9 April 2001. The next
one was Albania on 12 June 2006, followed by Montenegro on 15 October 2007, and Serbia on 29
April 2008. Bosnia and Herzegovina signed the Agreement on 16 June 2008. The last country to sign
the Agreement was Kosovo on 27 October 2015.
4
Stabilization and Association Agreement between the Former Yugoslav Republic of Macedonia
and European Communities. Ofcial Gazette of the Republic of Macedonia, 29/2001 and 122/2007,
Article 68, Paragraph 3, Law No. 9590 on the Ratication of the Stabilization and Association
Agreement between the Republic of Albania and the European Communities and their member states,
Fletorja Zyrtare e Republikës së Shqipërisë, 87/14.8.2015. p. 2955, Article 70, Paragraph 2. The Law
on Ratication of the Stabilization and Association Agreement between European Communities and
their member states and the Republic of Montenegro. Ofcial Gazette of Montenegro, 7/07, Article
72, Paragraph 2. Stabilization and Association Agreement between BiH and EU. Ofcial Gazette
of Bosnia and Herzegovina International Treaties, 10/08, Article 70, Paragraph 2. The Law on
the Ratication of the Stabilization and Association Agreement between the European Communities
and their member states and the Republic of Serbia. Ofcial Gazette of the Republic of Serbia
International Treaties, 83/2008, Article 72, Paragraph 2. The Law No. 05/l-069 on the Ratication
of the Stabilization and Association Agreement between the Republic of Kosovo and the European
Union and the European Atomic Energy Community. Ofcial Gazette of the Republic of Kosovo, No.
34 of 1 December 2015, Article 74, Paragraph 2.
5
The negotiations are in fact the harmonization of the legislation of a candidate country with the EU
legislation.
6
A directive requires member states to achieve a particular result. The implementation of the directive
is obligatory without dictating the means of achieving that result.
7
Framework decision is used for the approximation of the legislation of the EU member states. The
decision is obligatory only with regards to the end result it wishes to achieve. The states are free to
choose the form and means of achieving that result.
Conference Proceedings: Conference on Hate Crimes in South-East Europe,
Sarajevo, 8 November 2016
15
and Conclusions. The two relevant legislative documents are: Council Framework
Decision 2008/913/JHA of 23 November 2008 on combating certain forms and
expressions of racism and xenophobia by means of criminal law [Framework
Decision]
8
and Directive 2012/29/EU of the European Parliament and Council of 25
October 2012 establishing minimum standards on the rights, support and protection
of victims of crime, and replacing Council Framework Decision 2001/220/JHA
[Victims’ Rights Directive].
9
On 27 January 2014, the European Commission
[EC] published the rst Report 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.
10
The two political documents pertaining
to hate crimes are: the European Parliament Resolution of 14 March 2013 on
strengthening the ght against racism, xenophobia and hate crime.
11
The Council
adopted the Conclusions on combating hate crime in EU on 5 and 6 December
2013.
12
The EU High Level Group on combating racism, xenophobia and other
forms of intolerance fosters, among others, the further exchange and dissemination
of best practices between national authorities and concrete discussions on how to
ll existing gaps and better prevent and combat hate crime. Within the Group, a
separate sub-group operates on methodologies on recording and collecting data
on hate crimes. The most active institution in combating hate crimes is the EU
Fundamental Rights Agency [FRA].
13
In its Resolution on strengthening the ght against racism, xenophobia and
hate crime of 14 March 2013, the European Parliament used the Organization for
Security and Cooperation in Europe’s [OSCE] denition of hate crime as “criminal
offences committed with a bias motive that have to be tackled by means of criminal
8
The Council Framework Decision 2008/913/JHA of 23 November 2008 on combating certain
forms and expressions of racism and xenophobia by means of criminal law. Ofcial Journal of the
European Union, L 328/55.
9
The European Parliament and Council Directive 2012/29/EU of 25 October 2012 establishing
minimum standards on the rights, support and protection of victims of crime, and replacing Council
Framework Decision 2001/220/JHA. Ofcial Journal of the European Union, L 315/57.
10
European Commission (2014). Report 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. Available at https://www.google.ba/url?sa=t&rct=j&q=&esrc=s&source=web&cd=4&ved=0a-
hUKEwjontzv4rzOAhUFliwKHXjOCLAQFggzMAM&url=http%3A%2F%2Fwww.ipex.eu-
%2FIPEXL-WEB%2Fdossier%2Fles%2Fdownload%2F082dbcc54314a3a30143d97a1d0823b6.
do&usg=AFQjCNE6pGpesFhiv3jC-6SXVw0UCWUEbA&sig2=jiEc16gxerR1BoESJarH2Q,
accessed on 06/06/2016.
11
European Parliament (2013). Resolution on strengthening the ght against racism, xenophobia
and hate crime. Available at http://www.europarl.europa.eu/sides/getDoc.do?type=TA&language=E
N&reference=P7-TA-2013-90, accessed on 06/06/2016.
12
Council of the European Union (2013). Council conclusion on combating hate crimes in the
European Union. Available at http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/
jha/139949.pdf, accessed on 25/06/2016.
13
The EU Fundamental Rights Agency is a specialized agency of the Union. It provides advice to
the member states of the Union and its institutions regarding the rights set out in the EU Charter on
Fundamental Rights. More information at http://fra.europa.eu/hr, accessed on 16/06/2016.
Conference Proceedings: Conference on Hate Crimes in South-East Europe,
Sarajevo, 8 November 2016
16
legislation and specic tailored policies” (European Parliament, 2013). In the
words of Morten Kjaerum, the former Director of FRA, “Hate crimes create an
‘us and them’ mentality ... they undermine the basic democratic tenets of equality
and non-discrimination...” (EU Fundamental Rights Agency [FRA], 2012).
Hate crimes negate the founding values of the Union: democracy and equality.
“The European Union Charter on Fundamental Rights prohibits discrimination,
thereby binding the EU member states to combat hate crimes motivated by
racism, xenophobia, religious intolerance or disability, sexual orientation or
gender identity” (FRA, 2012).
2. FRAMEWORK DECISION ON COMBATING CERTAIN FORMS AND
EXPRESSIONS OF RACISM AND XENOPHOBIA BY MEANS OF
CRIMINAL LAW
The Framework Decision was adopted after seven years of negotiations.
This speaks volumes about the sensitivity of the issue and differences in its
regulation in the Member States of the Union. In its Preamble, the Framework
Decision recommends to the member states to ensure that investigations and
prosecutions of offences involving racism and xenophobia are not dependent on
reports or accusations made by victims, who are “often particularly vulnerable and
reluctant to initiate legal proceedings”.
14
The most important provision for hate
crimes can be found in Article 4 referring to racist and xenophobic motivation for
committing crimes. Thus the Framework Decision binds the states to: a. take the
necessary measures to ensure that racist and xenophobic motivation is considered
an aggravating circumstance, i.e. aggravating form of underlining offence or,
alternatively b. that such motivation may be taken into consideration by the courts
in the determination of the penalties. The EU member states had until 28 November
2010 to harmonize their legislation with the Framework Decision. One of the
conclusions of the annual FRA conference “Combating hate crime in the EU” held
in 2013 was that a Directive should replace the Framework Decision and extend
protection to all the grounds of discrimination, i.e. the motives for hate crimes
covered by Article 21 of the EU Charter of fundamental rights. (FRA, 2013).
15
3. EC REPORT ON THE IMPLEMENTATION OF THE FRAMEWORK
DECISION
At the beginning of 2014, the EC published the Report on the implementation
of the Framework Decision. The Report says that “Due to the discriminatory nature
14
The Framework decision 2008/913/JHA of 23 November 2008 on combating certain forms and
expressions of racism and xenophobia by means of criminal law. Ofcial Journal of the European
Union, L 328/55, Preamble, i. 11.
15
The missing grounds of discrimination set out in the EU Charter on Fundamental Rights are: sex,
genetic features, language, religion or belief, political or any other opinion, membership of a national
minority, property, birth, disability, age or sexual orientation.
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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” (European Commission [EC],
2014, p. 6).
The Report states that 15 EU member states
16
stipulated in their criminal
codes that racist and xenophobic motivation shall be considered an aggravating
circumstance with regard to all crimes. Another eight member states
17
stipulate that
a racist or xenophobic motivation shall be considered an aggravating circumstance
with regard to certain crimes.
18
Three member states
19
stipulate that the racist
motivation may be taken into account by the courts. In their general criminal law
provisions, three member states
20
stipulated that the general motivation of the
perpetrator shall be taken into consideration. In its Report on the implementation
of the Framework Decision, Estonia refers to the aggravating circumstance of
other base motives, while Ireland and Luxemburg simply state that motivation can
always be considered by the courts. Hungary refers to a considerable amount of
registered hate crimes and convictions but has not yet provided the relevant case
law. The Netherlands refers to an ofcial guidance document which states that
racist or xenophobic motivation should be taken into account.
In member states an investigation and criminal proceedings are initiated
ex ofcio, and are not dependant on the report made by the victim. Namely, the
prosecutor must initiate criminal proceedings if there is evidence that a crime has
been committed.
In its Report, the Commission suggests practices to strengthen the
implementation of the Framework Decision. It emphasizes the positive impact
of the existence of special ofces and units for combatting hate crimes as well as
specic training of the police, prosecutors and judges in processing hate crimes.
It also says that the exchange of information and good practices by bringing
together the state stakeholders dealing with hate crimes can also contribute to
better implementation.
21
Due to the nature of these crimes, victims often do not
report the crime to the police; the Commission states that “speedy implementation
of the Victims’ Rights Directive is essential in order to protect the victims” (EC,
2014, p. 9). The Report further suggests to the member states to systematically
collect and record hate crimes in order to assess the level of prosecutions and
sentences and a reliable cross-country comparison. The Commission believes
16
Czech Republic, Denmark, Greece, Spain, Croatia, Italy, Cyprus, Latvia, Lithuania, Malta,
Austria, Romania, Finland, Sweden and Slovakia.
17
Belgium, Bulgaria, Germany, France, Hungary, Poland, Portugal and the United Kingdom.
18
Such as: murder, serious bodily harm and other violence against persons or property.
19
Belgium, Germany and United Kingdom.
20
Portugal, Poland and Slovenia.
21
Also: EU Fundamental Rights Agency. (2012). Hate Crime in the European Union. Available at
https://fra.europa.eu/sites/default/les/fra-factsheet_hatecrime_hr_nal.pdf, accessed on 16/06/2016.
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that “Public condemnation of racism and xenophobia by authorities, political
parties and civil society contributes to acknowledging the seriousness of these
phenomena and to actively ghting against racist and xenophobic speech and
behaviour” (EC, 2014, p. 9).
22
4. OPINION OF THE EU FUNDAMENTAL RIGHT AGENCY ON THE
FRAMEWORK DECISION ON RACISM AND XENOPHOBIA – WITH
SPECIAL ATTENTION TO THE RIGHTS OF VICTIMS OF CRIME
In its Opinion on the Framework Decision on Racism and Xenophobia – with
special attention to the rights of victims of crime,
23
the EU Fundamental Rights
Agency recommends to the member states that in cases of crime committed with
a discriminatory motive, the police, prosecution services and courts acknowledge
and pay proper attention to the discriminatory nature of the offence and that the
court takes the discriminatory motivation of an offender into consideration in
determining the sentence. The victim must have the right to review a decision
not to prosecute or to discontinue proceedings and the right to appeal the verdicts
where victims claim that the court has not paid due attention to the discriminatory
motives behind the offence. In its Report, FRA particularly encourages the EU
member states to take appropriate measures to facilitate the reporting of hate crime
and to encourage victims and witnesses to report such crime. Accordingly, it is
necessary to raise awareness of potential victims about their rights and how to seek
assistance and advice. This means conducting public awareness raising campaigns
in cooperation with non-governmental sector and ensuring that all persons who are
likely to come into contact with victims of hate crimes receive training enabling
them to identify crimes committed with a discriminatory motive, to understand the
rights of victims of bias motivated crimes, to assess and respond to the particular
needs of such victims and to ensure that such victims are offered the best possible
assistance and support available. Member states are encouraged to protect victims
against repeat victimization and intimidation and to set up special police units that
would deal with hate crimes. The EU member states, together with Eurostat
24
,
should, on an annual basis, collect and publish data pertaining to crimes committed
with a discriminatory motive. The m inimum data that should be collected and
published is: the number of crimes recorded by authorities, number of convicted
persons, motive for committing the crime, i.e. the bias that led to the crime and the
22
Also Janez Lenarčič, Head of ODIHR-a (The OSCE Ofce for Democratic Institutions and Human
Rights): “When leaders speak out against hate crimes, this sends a strong message of reassurance to
affected communities.” Available at http://fra.europa.eu/en/press-release/2014/political-leaders-have-
central-role-play-countering-racism-and-hate-crime, accessed on 20/06/2016.
23
EU Fundamental Rights Agency (2013). FRA Opinion on the Framework Decision on Racism and
Xenophobia with special attention to the rights of victims of crime. Available at https://fra.europa.
eu/sites/default/les/fra-opinion-2-2013-framework-decision-racism-xenophobia_en.pdf, accessed
on 22/06/2016.
24
Eurostat is a statistical ofce of the European Communities whose task is to collect, process and
release comparable statistical data in European Union.
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punishment handed down to perpetrators (FRA, 2013, p. 25). The member states
should conduct victimization surveys, especially of vulnerable groups, such as
ethnic minorities and immigrants. Finally, FRA recommends that national action
plans are developed for addressing hate crimes.
5. THE VICTIMS’ RIGHTS DIRECTIVE
In some of its provisions, the Victims’ Rights Directive explicitly refers to
the victims of hate crimes. The victims of hate crimes are recognized as potential
victims of “secondary and repeat victimization, intimidation and retaliation”
by the offender. Accordingly, assessments should be carried out to determine
whether they are at risk of secondary and repeat victimisation, of intimidation and
of retaliation and what special protection measures they require.
25
In Article 22,
Directive explicitly stipulates that individual assessments should take into account
the personal characteristics of the victim, the type or nature and the circumstances
of the crime. “In the context of the individual assessment, particular attention
shall be paid to…victims who have suffered a crime committed with a bias or
discriminatory motive which could, in particular, be related to their personal
characteristics ...”
26
There are two steps in assessment process: 1. determine
whether the victim requires special protection measures due to one of the following
criteria: personal characteristics of the victim, type or nature of the crime and the
connection between the offender and the victim, and, if necessary, the victim and
the circumstances of the crime, 2. in order to determine whether the victim requires
special protection measures and if so, which ones (EC, 2013, p. 44). Member
states shall decide which bodies will carry out the individual assessment and the
assessment procedure itself. The rights set out in this Directive shall not be made
conditional on the victim’s residence status in their territory or on the victim’s
citizenship or nationality.
27
This provision is extremely important, especially for
the victims of hate crime, given that refugees and immigrants are often victims
of such crimes. Article 8, Paragraph 3 of the Directive obliges the member states
to take measures to establish specialised support services “due to their personal
vulnerability or particular circumstances or the nature of the crime” for victims of
hate crimes, among others (EC, 2013, p. 25). Access to these services should be free
of charge and should not be condition by the victim reporting the crime. Although
not explicitly referring to hate crimes, the provisions on close cooperation of state
and civil society organizations working with victims are also relevant, especially
on information and awareness-raising campaigns, education programmes and
training.
28
Also important is the systematic statistical data collection, including at
25
Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 on
establishing minimum standards on the rights, support and protection of victims of crime, and
replacing Council Framework Decision 2001/220/JHA. Ofcial Journal of the European Union, L
315/57, Preamble, i. 55.
26
Ibid, Article 22, p. 3.
27
Ibid, preamble, i. 10.
28
Ibid, preamble, i. 62.
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least the number and type of the reported crimes, and the number, age and sex of
victims.
29
Member states are obliged to collect and disseminate reliable, regularly
updated judicial, police and administrative data on victims and perpetrators of all
crimes, working in close cooperation with national and the European Statistical
Ofce (Eurostat) (EC, 2013, p. 50).
6. EUROPEAN PARLIAMENT RESOLUTION ON STRENGTHENING
THE FIGHT AGAINST RACISM, XENOPHOBIA AND HATE CRIMES
On 14 March 2013, the European Parliament adopted the Resolution on
strengthening the ght against racism, xenophobia and hate crime. Among the
reasons for adopting the Revolutions were the increase of violence and crimes
motivated by racism, xenophobia, anti-gypsyism, anti-Semitism, religious
intolerance, sexual orientation, gender identity, belonging to a minority group or
other characteristics, as well as the fact that every fourth person belonging to a
minority group experienced racially motivated crimes. Another fact that motivated
the Parliament to adopt the Resolution was that 90% of all incidents or threats
targeting immigrants or persons belonging to minorities remain unreported.
30
The Resolution calls on the EC, the Council and the member states to
strengthen the ght against hate crimes and discriminatory attitudes and behaviour
and creating a comprehensive strategy for ghting hate crime, bias violence and
discrimination. Special attention is placed on victims, and their awareness of their
rights, encouragement to report hate crimes and ensuring their adequate protection.
The Resolution stresses the importance of training of judicial bodies regarding the
application of the law.
The Resolution calls for the collection of broader and reliable data on hate
crime. Also, the states should keep records of the number of incidents reported
by the public and recorded by the authorities ex ofcio, the number of convictions,
sentences and the grounds on which offences were found to be discriminatory.
In addition, state members should conduct crime victimisation surveys on the
nature and extent of unreported crimes, the experiences of crime victims with
law enforcement, and the reasons for non-reporting. The states are called upon to
conduct hate crime awareness raising campaigns both for victims and state bodies.
The Resolution also calls for mechanisms to be put in place with a view to making
hate crime visible in the EU, ensuring that bias-motivated offences are recorded
properly and investigated effectively, that offenders are prosecuted and punished
and that victims are offered proper assistance, protection and compensation, thus
encouraging victims of hate crime and witnesses to report incidents.
29
Ibid, preamble, i. 64.
30
The Resolution refers to the EU Fundamental Rights Agency report. (2012). Revealing the dark
gure of unreported hate crime in the EU. Available at https://fra.europa.eu/sites/default/les/media_
memo_hate_crime_en_3.pdf, accessed on 21/06/2016.
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7. COUNCIL OF THE EUROPEAN UNION’S CONCLUSIONS ON
COMBATING HATE CRIMES IN THE EUROPEAN UNION
The Conclusions
31
of the Council of the European Union on combating hate
crime in the EU of 5 and 6 December 2013 stress the need for an effective and
systematic collection of reliable and comparable data on hate crimes, including, as
far as possible, the number of such incidents reported by the public and recorded
by the authorities; the number of convictions; the bias motives behind these
crimes; and the punishments handed down to offenders. Special attention is placed
on victims, underlining the importance of training for practitioners coming into
contact with victims of hate crime in order to increase their awareness of the needs
of victims of hate crime and to enable them to deal with these victims in a respectful
and professional manner, inter alia with a view to facilitate reporting of this type
of crime. The Conclusions invite the member countries to ensure prompt and
effective investigation and prosecution of hate crimes ensuring that bias motives
are taken into consideration and throughout criminal proceedings. All EU member
countries are also the member of the Council of the European Union. In its case law,
the European Court of Human Rights reiterated that “when investigating violent
incidents, State authorities have the additional duty to take all reasonable steps to
unmask any racist motive and to establish whether or not ethnic hatred or prejudice
may have played a role in the events.”
32
The court also stressed that “Treating
racially induced violence and brutality on an equal footing with cases that have no
racist overtones would be turning a blind eye to the specic nature of acts that are
particularly destructive of fundamental rights.”
33
In case of not investigating racist
motives, the state risks being found guilty of violating Article 14 (Prohibition on
discrimination) of the European Convention on Human Rights and Fundamental
Freedoms [European Convention]. Positive obligations of the state under Article 2
(Right to life) and Article 3 (Prohibition of torture) of the European Convention is to
efciently investigate racist motives in order to ensure the condence of minorities
in the ability of the state to protect them from racist violence.
34
States should take appropriate steps in order to facilitate reporting hate crimes,
provide support to the relevant nongovernmental organizations dealing with hate
crimes, and to take steps to build condence in the police and other state bodies. It
is also recommended in the conclusions to collect and publish comprehensive and
comparable data on hate crimes as much as possible, as follows: the number of such
incidents reported by citizens and record by authorities; the number of convictions
and the motive behind those crimes and the pronounced sentences. The victims
31
The conclusions of the Council of the European Union are adopted in the course of each meeting
of the Council. Conclusions set out specic issues of importance for the Union, certain measures that
need to be taken are presented, as well as goals to be achieved.
32
Šečić v. Croatia, No. 40116/02, 31 May 2007; § 66, Nachova et al. v. Bulgaria, No. 43577/98
43579/98, 6 July 2005; § 160, Angelova and Iliev v. Bulgaria, No. 55523/00, 26 July 2007, § 115.
33
Šečić v. Croatia, No. 40116/02, 31 May 2007, § 6, Ibid, Ibid.
34
Angelova and Iliev v. Bulgaria, No. 55523/00, 26 July 2007, § 116.
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of hate crimes should be provided with assistance, protection and support. States
should promote training for practitioners who deal with the victims of hate crimes,
and thus ensure efcient protection for victims (Council of European Union, 2013).
8. THE FIRST ANNUAL COLLOQUIUM OF EUROPEAN COMMISSION
ON FUNDAMENTAL RIGHTS AND THE HIGH LEVEL GROUP ON
COMBATING RACISM, XENOPHOBIA AND OTHER FORMS OF
INTOLERANCE
The Frist Annual Colloquium on fundamental rights in the EU was held on
1-2 October 2015, in the organization of EC. The topic of the Colloquium was:
“Preventing and combating anti-Semitic and anti-Muslim hatred in Europe”. One
of the key actions agreed upon at the Colloquium was the “implementation...of the
new EU rules on protecting the rights of victims of crime and improved recording
and data collection of hate incidents” (EC, 2015, p. 3). In addition to the necessary
implementation of the Framework decision, the conclusion stresses the need for
full transposition and efcient implementation of the Victims’ Rights Directive.
Three points were emphasized regarding hate crimes: “Hate motives behind
crimes must be better investigated and recorded to ensure appropriate prosecution
and sentencing” (EC, 2015, p. 6). This can only be achieved if the authorities
are trained. The other issues are victims. State authorities need to ensure better
support and communication with victims with the aim of an efcient response
to hate crimes. With regards to underreporting, it was stressed that it stems from
the fact that victims do not believe in the will of state authorities to investigate
and punish such crimes, and because they are afraid of additional victimization
and that the crime will become publicly known. It was also emphasized that
victims need to be better informed on their rights. The third issue addressed at the
Colloquium was the collection of data on hate crimes. “Reliable and comparable
data is essential for an accurate analysis of trends and for evidence-based policy-
making to prevent such phenomena” (EC, 2015, p. 6). The key recommendations
for addressing these issues are as follows: the implementation of special projects
with the aim of enhanced application on laws on racism and xenophobia and
training of judges, prosecutors and police. European Commission was tasked with
drafting new guidelines for the member states of EU on best practices in order to
contribute to the efcient implementation of the EU legislation on ghting hate
crimes. It was stressed that EC has to carefully monitor the implementation of
the EU legislation regarding victim’s rights and to initiate proceedings in case of
violations. It was recommended that states, in cooperation with non-governmental
sector, work on non-reporting of hate crimes, victims’ awareness of their rights,
and strengthening the victims’ condence in state authorities and facilitating
reporting of such crimes. The EU Fundamental Rights Agency was tasked with
assisting the EU member states regarding the best methodology of collecting and
processing data on hate crimes.
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The Colloquium issued a decision pursuant to which the Working Group of
member states for Framework Decision on racism and xenophobia was transformed
into the EU High Level Group on combating racism, xenophobia and other forms
of intolerance. The Group held its inaugural meeting on 14 June 2016. The group
convenes two to three times a year in Brussels. Its mandate and goals include, inter
alia, development of specic policies and tools and capacity building with the aim
of improving prevention and combating racism, xenophobia and other forms of
intolerance in the EU member states. Specically, these include: improved unmasking
of bias as a motive for committing a crime, ensuring efcient investigation and
criminal prosecution, ensuring appropriate legal sanctions, protection of victims,
the issue of non-reporting crimes, strengthening condence of victims in state
authorities and building diversity culture in law enforcement agencies and ghting
discrimination and racism. The second goal includes facilitating the exchange
and disseminating best practises, including supporting of EC guidelines with best
practices and monitoring their implementation. The special focus in the third goal
is on hate crimes against persons with disabilities (EC, 2015).
There are two sub-groups within the Group: Sub-group on methodologies on
recording and collecting data on hate crimes and Sub-group on countering hate
speech online. The rst meeting of the Sub-group on methodologies on recording
and collecting data on hate crimes was held in Vienna, on 18-19 October 2016. The
conclusions adopted at the meeting are still not available on the EC website.
9. EU FUNDAMENTAL RIGHTS AGENCY
In its publication “Hate Crimes in the European Union”
35
FRA states that
the EU need to make hate crimes more visible to the public. The information on
collecting hate crimes data is disappointing, as only eight states collects data on
hate crimes on the grounds of sexual orientation, four collect data on hate crimes
against Roma (FRA, 2011). The Agency recommends the EU and its member states
to adopt laws that will oblige the member states to collect and publish statistical
data on hate crimes. This data should at least contain the following information: the
number of reported incidents, the number of incidents recorded by the authorities,
the number of convictions, the motives of hate crimes and the sanctions pronounced.
The collected data should be analysed twofold: with regards to the perpetrators of
hate crime concerning their sex, age and other variables in order to understand
such crimes, and with regards to the victims. Such analysis is primarily related
to the nature and the scope of unreported crimes, the experiences of hate crimes
victims in the communication with the relevant state authorities, the reasons for not
reporting crimes and awareness of their rights. States should also prescribe more
severe punishments for hate crimes. Collecting data on hate crimes is important in
order to:
35
EU Fundamental Rights Agency (2012). Hate crimes in EU. Available at: https://fra.europa.eu/
sites/default/les/fra-factsheet_hatecrime_hr_nal.pdf, accessed on: 16/06/2016.
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“a. make hate crimes more visible in the EU,
b. give victims of hate crimes the opportunity to seek redress against
perpetrators,
c. ensure that EU Member States respond effectively to hate crime as an
abuse of fundamental rights” (FRA, 2012).
FRA established the Working party on improving reporting and recording of
hate crime in the EU based on the Council Conclusions on combatting hate crime
in the EU of 5-6 December 2013. Namely, the Agency was asked to facilitate the
exchange of good practices and assist the Member States at their request in their
efforts to develop effective methods to encourage reporting and ensure proper
recording of hate crimes. The Working party was set up in November 2014 in Rome.
In December 2013, the Agency organized a conference “Combatting hate crimes
in the EU”. In their conclusions, inter alia, the participants recommend the member
states the following (FRA, 2013): ensure that the police always investigate bias
motive behind a crime whenever there is indication of such a motivation; establish
specialized units dealing with hate crimes; police ofcers responsible for reaching
out to minorities; police training is needed to increase understanding for and
recognition of hate crimes, and greater engagement of the police in the community
in order to increase trust among victims and their families in the police’s ability to
deal with hate crimes. States should establish a low threshold reporting system that
would allow victims and witnesses of hate crimes to report crimes to the police,
online, through civil society organizations or mobile applications. Victims of hate
crimes must be sufciently informed and made aware of their rights. Targeted
and specialised support services for hate crimes victims need to be established.
States should ensure that hate crime victim does not see the perpetrator in court.
36
Specialized hate crimes unit should be established in prosecutors ofces as well.
States need to adopt national action plans for combatting hate crimes and set up
structures for monitoring hate crimes. The conference participant stressed the need
to collect and publish data on hate crime incidents that are reported to the police
and on the number of cases referred to prosecutors ofces. Public prosecutors
must publish data on the number of indictments in relation to hate crime, always
specifying the number of defendants, and courts must publish data on the number
of convictions and acquittals in relation to hate crime, as well as the number of
persons that were convicted or acquitted. Courts must also publicise hate crimes
cases, their verdicts must be public and must include the grounds motivating the
offence, and the sentence pronounced.
36
Directive 2012/29/EU of the European Parliament and Council of 25 October 2012 establishing
minimum standards on the rights, support and protection of victims of crime, and replacing Council
Framework Decision 2001/220/JHA. Ofcial Journal of European Union, L 315/57, Art. 19, para. 1.
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10. CONCLUSION
To conclude this part of the paper we will summarise the characteristics of
the EU hate crimes legislation as follows: rstly, the racist and xenophobic motive
for committing a crime must be provided for in the criminal legislations for
aggravating circumstance of the criminal offence and thus the crime would get its
aggravated form. Conversely, they should oblige courts to take such motives into
account when determining sentences. In case of hate crimes, investigation must be
initiated ex ofcio. The investigation should be quick and efcient and the police
should investigate the motive whenever there is an indicator that it existed at when
the crime was committed.
It is recommended that states establish specialized, trained ofces and units
in the police and prosecutors ofces for combatting hate crimes. Special attention
must be paid to the training of persons who are in contact with victims of hate crime,
especially on how to recognize hate crime, how to respond and help individual
victim of crime provide the needed support.
States need to systematically collect data on hate crimes. The hate crimes
data should be published and accessible to the public. The data that needs to be
collected should include: the number of hate crimes, the number, age and sex of the
victim. Also, the data on the number of reported incidents, the number of incidents
recorded by the authorities, the number of convictions, the number of acquittals,
the pronounced sanctions and the motives or committing the crime. The following
data should also be collected: the number of reports referred to prosecutors ofces,
the number of raised indictments and defendants and the number of acquitted
and sentenced persons. The collected data should be analysed with regards to the
perpetrator of hate crime in relation to the sex and age of the perpetrator and other
circumstances needed for understanding hate crimes. Collected data should also be
analysed with regards to the victim. The analysis should relate to the nature and the
scope of unreported crimes, the experience of the victim in the communication with
the state authorities, the reasons for not reporting the crime, and the awareness of
victim about her/his rights. States should cooperate with Eurostat with regards to
collecting and publishing data.
One part of the EU legislation relates to the victims of hate crimes. Thus,
member states must implement the Victims’ Rights Directive. States must not limit
exercising the rights set out in the Directive with the nationality or the ethnicity of
the victim. States must carry out an assessment of the repeat victimization of the
victim of hate crime and provide support to the victims accordingly. The assessment
needs to take into account the personality of the victim, the type or the nature of
the crime and the circumstances of the crime. States must act in order to increase
awareness of victims of their rights and legal aid. States must establish separate
specialized services for providing support to the victims of hate crimes. States
should encourage reporting hate crimes. Victims should be able to report hate crime
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in any manner, including online or through a mobile application. States should
ensure that victims have the right to question the decision to cease investigation
and the right to appeal if the victim claims that the court did not take into account
the motive for committing the crime. Victims should be able to seek compensation
from the perpetrator of hate crime.
Finally, it is recommended that states adopt and implement national action
plans and policies for ghting hate crimes.
11. LEGISLATION OF BOSNIA AND HERZEGOVINA (BIH)
Hate crimes in a post-conict state, such as BiH, represent one of the
biggest threats to stability and security of the society itself. Therefore, there is
an urgent need for efcient prevention and countering hate crimes. According to
the constitutional competencies, the following laws are in force in BiH: Criminal
Code [CC] of Bosnia and Herzegovina,
37
Criminal Code of the Federation of
Bosnia and Herzegovina [FBiH]
38
, Criminal Code of Republika Srpska [RS]
39
and Criminal Code of Brčko District BiH [BDBiH].
40
The Criminal Code of BiH
does not contain provisions regulating hate crimes. This is because the Law in
its special part does not provide for criminal offences that can be aggravated by
hatred, i.e. by a discriminatory motive. The amendments to the CC BDBiH
41
and
RS
42
from 2010 provided denition of hate in the general part of the criminal codes
stipulating that it presents a motive for the perpetration of a crime. This is followed
by inclusion of aggravating forms of crimes committed out of hatred and general
rules for sentencing stipulating that hate will be an aggravating circumstance for
those crimes for which hatred as aggravating form of the underlying offence has
not been prescribed. Instead of dening hate, the amendments to the CC RS from
2013
43
provide denition of hate crime and decrease the number of protected
characteristics.
44
It took FBiH six years to regulate hate crimes. The amendments
to CC FBiH
45
from 2016 dened hate crimes as a criminal offence committed out
of hatred, and introduced aggravated forms of some crimes when motivated by
hatred. It is important to point out the role of the Coalition against Hate Crimes
37
Criminal Code of BiH. Ofcial Gazette BiH, 3/03, 32/03, 37/03, 54/04, 61/04, 30/05, 53/06,
55/06, 32/07, 8/10, 47/14, 22/15 and 40/15.
38
Criminal Code of FBiH. Ofcial Gazette FBiH, 36/03, 37/03, 21/04, 69/04, 18/05, 42/10, 42/11,
59/14, 76/14 and 46/16.
39
Criminal Code of RS. Ofcial Gazette RS, 49/03, 108/04, 37/06, 70/06, 73/10, 1/12 and 67/13.
40
Criminal Code of BDBiH. Ofcial Gazette BDBiH, 33/13.
41
The Law on Amendments to CC BDBiH. Ofcial Gazette BDBiH, 21/10.
42
The Law on Amendments to CC RS. Ofcial Gazette RS, 73/10.
43
The Law on Amendments to CC RS. Ofcial Gazette RS, 67/13.
44
Compared to the amendments in 2010, the following protected characteristics were left out: script,
political or other afliation, social background, social status, age, and other characteristics. Gender
identity was added.
45
The Law on Amendments to the CC FBiH. Ofcial Gazette FBiH, 46/16.
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27
and Hate Speech
46
established in 2013 in advocating for adoption of hate crimes
amendments to criminal codes in BiH (Vasić, 2015).
47
In their general sentencing rules, the criminal codes of BDBiH and RS
provide for hate as aggravating circumstance for those crimes for which hatred
as aggravating form of the underlying offence has not been prescribed.
48
The CC
FBiH contains the same provision, but under Article 2, Paragraph (11) where
denition of hate crime is provided for.
The Criminal Code of BDBiH provides denition of hatred, while CCs RS
and FBiH denition of hate crimes. The CC BDBiH denes hate as a “motive for
commission of a crime provided for by this Law, which is entirely or in part based on
differences on the grounds of an actual or perceived ethnic or national background,
language or script, religious beliefs, race, skin colour, sex, sexual orientation,
political or other afliation, social background, social status, age, health and other
characteristics, or due to associating with persons with such characteristics.“
49
Entity
legislation dene hate crimes as any crime committed (entirely or in part)
50
due to
race, national or ethnic background/origin, skin colour, religious belief, language,
sex, sexual orientation or gender identity.
51
In the FBiH disability is also one of
the protected characteristics, and in RS it is health. Hatred is provided for as an
aggravating circumstance for the following crimes: murder
52
/rst degree murder,
53
grievous bodily harm,
54
rape,
55
malicious mischief,
56
aggravated theft,
57
aggravated
robbery,
58
robbery.
59
The last crime for which hate is aggravating circumstance in
BDBiH is serious crimes against general security,
60
while in RS it is causing public
danger.
61
Therefore, it can be said that the BiH legislation is harmonized with the
Article 4 of the Framework Decision.
46
More on the Coalition available at http://www.diskriminacija.ba/koalicija-za-borbu-protiv-
govora-mr%C5%BEnje-i-zlo%C4%8Dina-iz-mr%C5%BEnje, accessed on 01/06/2016.
47
In addition to the Coalition, hate crimes related activities are also carried out by: Sarajevo Open
Centre, Interreligious Council BiH, Center for Social Research Analitika, Civil Rights Defenders,
Association for Democratic Initiatives and Youth Initiative for Human Rights BiH.
48
CC BDBiH, Art. 49, para. 2; CC RS, Art. 37, para. 3.
49
CC BDBiH, Art. 2, para. 37.
50
Only CC RS.
51
CC RS, Art. 147, para. 25; CC FBiH, Art. 2, para.11.
52
Ibid. Art. 163, para. 2, item 3; Ibid, Art. 166, para.2, item c.
53
CC RS, Art. 149, para.1, item 2.
54
CC BDBiH, Art. 169, para. 4; CC FBiH, Art. 172, Art.4; CC RS, Art. 156, para. 2.
55
Ibid, Art. 200, para. 4.; Ibid, Art. 203, para. 4.; Ibid, Art. 193, para. 2.
56
Ibid, Art. 287, para. 3.; Ibid, Art. 293, para. 3.; Ibid, Art. 249, para. 3.
57
CC BDBiH, Art. 281, para. 1, item 5; CC RS, Art. 232, para. 7.
58
Ibid, Art. 282, para. 2; Ibid, Art. 234, para. 2.
59
Ibid, Art. 283, para. 2; Ibid, Art. 233, para. 2.
60
CC BDBiH, Art. 322, para. 1.
61
CC RS, Art. 402, para. 5.
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With regards to the position of the victim of hate crime in the criminal
procedure, the criminal procedure codes [CPC] in BiH
62
provide for the right of
the injured party to le property claim within criminal proceedings, before the
main trial concludes.
63
The claim is led with the prosecutor or the court. If the
court does not rule on the property claim within the criminal proceedings, the
injured party can le the property claim in civil proceedings.
64
Hate crime can be
reported verbally and in writing. It can be reported by phone.
65
CPCs need to be
amended in order to allow reporting hate crimes via mobile application and thus
encourage and facilitate reporting hate crimes. Victim of hate crime has the right
to le a complaint against the decision not to conduct investigation and decision
to cease investigation. The complaint must be led within eight days of issuing
decisions to the prosecutors ofce.
66
The injured party can also appeal the court
verdict.
67
However, their appeal can pertain only to the decision on the expenses
of the criminal proceedings and the decision on the property claim.
68
The CPCs in
BiH have to be amended in order to include provisions on the assessment of repeat
victimisation of the victim and establishing protection measures. In addition to
the full transposition of the Victims’ Rights Directive to the national legislation,
BiH must establish free support services for the hate crimes victims. The support
in BiH is provided by the Sarajevo Open Centre [SOC], which only provides
legal aid to the LGBT hate crimes victims. The OSCE Mission to BiH is the
only organization that published a leaet on the rights of the hate crimes victims:
“Victim or a witness of a criminal offence? Know your rights and duties.“
69
To
date (August 2016) there has been no public campaign or other actions of the state
with the aim of awareness raising of victims regarding their rights.
Order to conduct investigation of a hate crime is issued by a prosecutor when
there are reasons for suspicion that a crime has been committed.
70
Therefore,
initiating and conducting of an investigation does not depend on the report and the
62
Criminal Procedure Code FBiH. Ofcial Gazette FBiH, 35/03, 37/03, 56/03, 78/04, 28/05, 55/06,
27/07, 53/07, 9/09, 12/10, 8/13 and 59/14; Criminal Procedure Code RS. Ofcial Gazette RS, 53/12;
Criminal Procedure Code BDBiH. Ofcial Gazette BDBiH, 33/13.
63
CPC BDBiH, Art. 194, para. 1; CPC RS, Art. 104, para. 1; CPC FBiH, Art. 208, para. 1.
64
According to the available data of the OSCE Mission to BiH, compensation to the victim of hate
crime was ruled only in two cases in Brčko District BiH. OSCE Mission to BiH (2012). An analysis of
bias-motivated incidents in Bosnia and Herzegovina with recommendations. Available at: http://www.
osce.org/bs/bih/107256?download=true, accessed on 14/06/2016, p. 40.
65
CPC BDBiH, Art. 215, para. 1-2; CPC RS, Art. 223, para. 1-2; CPC FBiH, Art. 230, para. 1-2.
66
Ibid, Art. 216, para. 4; Art. 224, para. 2; Ibid, Art. 232, para. 2; Ibid, Art. 224, para. 4; Ibid, Art.
231, para. 4. and Art. 239, para. 2.
67
Ibid, Art. 293, para. 1; Ibid, Art. 307, para. 1; Ibid, Art. 308, para. 1.
68
Ibid, Art. 293, para. 5; Ibid, Art. 224, para. 1; Ibid, Art. 231, para. 1.
69
OSCE Mission to BiH (2013). Are you a victim or a witness of a criminal offence? Know your
rights and obligations. Available at: http://www.osce.org/hr/bih/118883?download=true, accessed on
16/06/2016.
70
CPC BDBiH, Art. 216, para. 1; CPC RS, Art. 232, para. 2, Art. 224, para. 4; CPC FBiH, Art. 231,
para. 4 and Art. 239, para. 2.
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29
statement of the victim. For the investigation to be more expedient and efcient, a
protocol must be drafted that would provide for the cooperation of the police and
the judicial bodies in processing hate crimes (The Initiative for Monitoring the EU
Integration Process in BiH, 2016, p. 31).
71
It is crucial that the police explicitly
specify elements that might indicate bias as a motive for the commission of a crime
as the majority of prosecutors would otherwise treat it as an “ordinary” crime
(Kuči, 2013, p. 3). Theory and comparative practice have developed a number of
possible criteria for recognizing bias motivation for hate crimes; however, such
criteria have not been dened in the ofcial documents pertaining to conducting
investigations and prosecuting crimes in Bosnia and Herzegovina (Kuči, 2013,
p. 3). Accordingly, a common list of indicators for recognizing hate crimes must
be adopted. Conversely, there needs to be sensitisation and training of the police to
be able to recognize bias when a crime is reported and investigate the motive when
conducting investigation.
Unfortunately, the police and judiciary in BiH “still do not systematically
collect data on hate crimes ...“ (Initiative for monitoring the European integration
of BiH, 2016, p. 31). This is also the opinion of the EU.
72
The OSCE Mission to
BiH is the only organization that collects data on hate incidents. Namely, in May
2013, the Mission launched its Hate Monitor.
73
“The Hate Monitor is a monthly
visualization of the Mission’s hate crimes monitoring data.”
74
The data published
in the Monitor are obtained through the cooperation with the police, prosecutors
ofces and around a hundred non-governmental organizations in BiH. Each
month the Mission publishes the Monitor containing the following information:
the number of hate incidents and the number of responses to hate incidents. Also,
information on the types of incidents and the types of responses given.
75
Each
month, the Monitor also highlights one response or prevention effort, to raise
awareness and promote good practices in combating hate.
76
For this purpose,
the Mission supported the establishment of a network of non-governmental
organizations so that hate crimes would be condemned immediately after they
are committed.
77
The Hate Monitor also uses a map to indicate the places in BiH
71
Also Vasić, V. (2015). Regulating hate crimes in the Criminal Code of FBiH. Available at http://
soc.ba/site/wp-content/uploads/2015/06/HRP_BOS_hate-crime.pdf, accessed on 12/06/2016, p. 18.
72
“Information about hate crime acts is not systematically collected or tracked.” European
Commission (2015) Bosnia and Herzegovina 2015 progress report. Available at http://europa.ba/wp-
content/uploads/2015/11/Izvjestaj-za-BiH-za-2015-godinu.pdf, accessed on 01/06/2016, p. 25.
73
OSCE Mission to BiH (2016). Hate Monitor. Available at http://www.osce.org/bs/
node/221111?page=4, accessed on 02/06/2016.
74
Ibid.
75
“A response to a hate incident or hate crime can be either an immediate reaction (condemnation
by authorities or citizens) or a more long-term prevention measure (project or policy).” Ibid.
76
Ibid.
77 Thus the Internet platform Supergrađani/Supergrađanke (Supercitizens) was launched on 22
November 2013. More information available at http://supergradjani.ba/, accessed on 14/06/2016. The
June 2016 Monitor highlights the response of the police of Brčko District BiH that removed offensive
grafti in the form of swastika, cross and four s letters and the words Nazi Brčko. (OSCE Mission to BiH
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where the incidents occurred and to show where there was a response to those
incidents. The third part of the Hate Monitor is prevention. Prevention can be
carried out through the activities of local coalitions against hate and the existing
local strategy for prevention of hate. The last part of the Monitor is dedicated to
the victim’s characteristics. The Hate Monitor lists the following characteristics:
ethnicity/religion, sexual orientation and other.
78
The Hate Monitor also provided
the following information: visual representation of the number of incidents from
January of the current year.
79
It also shows the response ratio and incidents with
at least one response.
80
The Monitor provides information on the processing of
hate incident.
81
BiH has not met its obligations regarding the EU integrations.
A law that will regulate the collection and processing of hate crimes data needs
to be adopted. The law should also prescribe which data is collected, how they
are analysed, publish and used, as well as the obligations of state institutions and
competences in this process.
None of the levels of government has adopted or is planning to adopt a strategy
or national action plan for ghting and prevention hate crimes. However, the
Strategy of Bosnia and Herzegovina for Preventing and Combatting Terrorism
82
partially relates to hate crimes. In terms of prevention, the Strategy sets out the
support and active involvement of community, especially the youth in combatting
hate crimes. The Strategy sets out its vision as follows: “Create a framework and
support the development of the driving forces, aimed at preventing hate crimes...
so as to establish an adequate response focused on positive communication and
action” (Council of Ministers BiH, 2015). The rst sub-goal of the Strategy is
the prevention of hate crimes. Special preventive measures foresee combating
misuse of the Internet and social networks for incitement to hate crimes. One of
the preventive activities one of the prevention actions in terms of hate crimes
is encouraging and assisting academia to continue research into hate crimes in
order to identify key problems and develop preventive measures. As a specic
measure regarding investigation, the Strategy prescribes strengthening and
speeding up the investigation and corresponding sanctions for perpetrators of hate
crimes, particularly those with religious and ethnic motivation. The Strategy also
recommends training for judges, prosecutors and police ofcers in conducting
investigation. Finally, the Strategy prescribes obligatory adoption of action plans at
(2016). Hate monitor June 2016. Available at http://www.osce.org/bs/bih/257821?download=true,
accessed on 03/06/2016).
78
The Hate Monitor does not explain the “other” category.
79
U January there was 8, in February 6, March 18, April 11, May 13, and June 12 incidents. Ibid.
80
Up to July 2016, there were 36 responses, while 24 hate incidents had only one response. Ibid.
81
As of June 2016, there were 8 ongoing proceedings and no convictions or acquittals in such cases.
Ibid.
82
The Strategy was adopted at the 14th session of the Council of Ministers of BiH on 8 July
2015. Council of Ministers of BiH (2015). Strategy of Bosnia and Herzegovina for preventing and
combatting terrorism. Available at http://www.vijeceministara.gov.ba/akti/prijedlozi_zakona/default.
aspx?id=20286&langTag=bs-BA, accessed on 10/06/2016.
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31
all levels of government in BiH, according to their respective competencies, within
60 days from the adoption of the Strategy. The Council of Ministers adopted the
Action plan for the implementation of the Strategy of Bosnia and Herzegovina for
preventing and combatting terrorism (2015-2020).
83
Prosecutors emphasized the lack of training on hate crimes, both for them and
for expert associates, as one of the biggest problems in processing hate crimes
(Kuči, 2013, p. 5). The training of police ofcers, judges and prosecutors on hate
crimes unfortunately depends the most on non-governmental and international
organizations (Initiative for monitoring the EU integration of BiH, 2016, p. 31). In
2008, the Ministry of Security of BiH signed the Memorandum of Understanding
with OSCE Ofce for Democratic Institutions and Human Rights [ODIHR].
Subsequently, BiH appointed the national point of contact for hate crimes within
the Ministry of Security of BiH. By signing the Memorandum, the Ministry
committed to “implement a set of activities that will improve the response of the
police to hate crimes throughout BiH” (OSCE Mission to BiH, 2012, p. 48). The
rst seminar on this subject was held from 23 to 27 March 2009, in the organization
of the Ministry of Security of BiH and ODIHR (“Successfully conducted Training
Program”, 2009). A part from this training not much has been done in this eld
(OSCE Mission to BiH, p. 48). The largest number of training sessions was carried
out by SOC in cooperation with the OSCE Mission to BiH.
84
In 2016, SOC is
planning to implement the “train the trainer” project (training of future trainers)
so that future police ofcers who get the training pass their knowledge on to their
colleagues. As of April 2016, six cantonal ministries of interior agreed that training
on hate crimes be included in the program for professional development, training
and continuous training of police ofcers (“The Police in FBiH Determined”, 2016).
Four Sarajevo city police administrations designated contact persons for work with
LGBT population (“Ministry of Interior of the Sarajevo Canton Designated”, 2014).
The Judicial and Prosecutorial Training Centre [JPTC] FBiH has started
conducting training on hate crimes in 2012. The Judicial and Prosecutorial Training
Centre RS held its rst hate crimes seminar in 2014. In 2015, the rst joint seminar
of both JPTCs and the Judicial Commission of BDBiH on hate crimes was held,
with the support of the OSCE Mission to BiH. This year, the joint training of JPTC
FBiH and RS and the Judicial Commission of BDBiH will be held the seminar on
83
The Strategy was adopted at the 14
th
session of the Council of Ministers of BiH on 8 July
2015. Council of Ministers of BiH (2015). Strategy of Bosnia and Herzegovina for preventing and
combatting terrorism. Available at https://www.parlament.ba/sadrzaj/ostali_akti/izvjestaji/default.
aspx?id=61179&langTag=bs-BA&pril=b, accessed on 05/06/2016. Prevention and combating hate
crimes is also part of the Action Plan.
84
In 2014, SOC has initiated training for police in FBiH. Since 2015 SOC is implementing a 2-year
project “Fighting hate crimes in BiH”. The project is composed of training on hate crimes. In 2015
“151 policemen from all cantons were trained about adequate response to hate crimes”. (Initiative
for monitoring of the EU integration of BiH (2016). Alternative report for BiH for 2016 on progress
in European integration. Available at http://eu-monitoring.ba/site/wp-content/uploads/2016/07/hrp_
alternativni-izvjestaj_bos_12.07.2016.-web.pdf, accessed on 01/06/2016, p. 31).
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hate crimes.
85
It is a one day seminar that will be held three times in the course of
the year
86
, gathering around 80 participants.
It is necessary to include “mandatory training on hate crimes into the training
programs of the police academies of RS and FBiH, and into the continuous and
specialized programs for training of police ofcers, prosecutors and judges” (The
Initiative for Monitoring the EU Integration Process in BiH, 2016, p. 18). Training
on hate crimes should be included into the curricula of the law, criminology, and
security studies, and the training programs of police administrations (Sarajevo Open
Centre, 2016, p. 25).
87
Unfortunately, there is no police administration, ministry
of interior or prosecutors ofce with specialized ofces or units for combatting
hate crimes. Training carried out by the JPTCs FBiH and RS and the Judicial
Commission of BDBiH, and SOC should also include the training on the victim of
hate crime itself, treatment, assistance and support to the victim.
12. LEGISLATION OF THE REPUBLIC OF SERBIA
Hate crime was recognized in the criminal legislation of the RS in 2012, when,
in the Article 54a, the legislator prescribed that criminal offences committed out
of hatred would be punished more severely. The CC stipulates that any criminal
offence motivated by the following characteristics of the victim: race and religion,
nationality or ethnicity, sex, sexual orientation or gender identity, will be considered
a hate crime. The purpose of this provision is to adequately punish the person that
hurt somebody only because they cannot accept certain diversity, but also to act
preventively with regards to perpetrating such acts in the future.
88
This provision
was introduced into legislation in order to better protect minority groups, after years
of advocating activities by the Lawyers’ Committee for Human Rights [YUCOM]
and the Gay Straight Alliance [GSA]. Before the CC was amended, similar
circumstances were prescribed in the law, but the security services and judiciary did
not adequately and efciently address these issues, thus leaving the victims to often
face fear at all stages of proceedings: from reporting the perpetrator, investigation,
disinterested media, inappropriate media reporting, to the nal decision of the
court, without any institutional support to victims. The amendments created the
85
The topics of the 2016 seminars are:
What is a hate crime?
Why should hate crimes be treated differently than other crimes?
How to recognize a hate crime?
Response of the institution for law enforcement and judiciary
Response of local authorities
International and regional standards
86
One seminar was held in Banja Luka on 21 June 2016. The others will be held in Sarajevo on 21
September 2016, 3 November 2016 and 1 December 2016 and in Zenica on 26 October 2016.
87
Also, Vasić, V. (2015). Regulating hate crimes in the Criminal Code of FBiH. Available at http://
soc.ba/site/wp-content/uploads/2015/06/HRP_BOS_hate-crime.pdf, accessed on 12/06/2016, p. 18.
88
Criminal Code of the Republic of Serbia. Ofcial Gazette of the Republic of Serbia, 85/05 , 88/05
- correction, 107/05 - correction, 72/09 , 111/09 , 121/12 and 104/13.
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33
conditions for providing this support, although upon reviewing the information
available in the Ministry of Justice [MJ] and the Ministry of Interior [MI] it is
evident that Serbia does not have specialized services for providing support to hate
crimes victims.
89
With regards to the rights of the victim, the CPC of Serbia does not treat
separately victims of hate crimes. In Article 58, Paragraph (2) of the CPC provides
the victim the right to le a property claim and to propose measures to ensure it.
90
According to the provisions of the CPC, investigation is initiated ex ofcio, i.e. the
statement or the report by the victim is not necessary. In addition, the victim has the
right to request the review of the decision to cease the investigation or le a motion
pursuant to Article 51 of the CPC. Contrary to the standards of the EU, the victim
of the crime does not have the right to appeal in cases when motive for committing
the crime has not been taken into consideration by authorities.
In terms of data collection and data processing in line with the EU
recommendations, we believe that Serbia meets all the prescribed parameters,
a view conrmed in the OSCE’s Hate Crimes Report for 2014.
91
The data are
available on the Prosecutors Ofce web site. The Prosecutors Ofce collects the
data and submits them to the OSCE. The non-governmental sector also plays an
important role in data collection.
92
There is no data with regards to the direct implementation of the Victims’
Rights Directive.
On the ofcial websites of the MJ and the MI there is no information whether
the police or prosecution have specialized ofces for combatting hate crimes. With
the support of the UK Embassy in Belgrade the Victim and Witness Information
Unit was established within the Higher Public Prosecutors Ofce in Belgrade.
The nal draft Action plan for Chapter 23 of April 2016
93
provides for the
adoption of the Action plan for combatting hate crimes and harmonization of
legislation with the EU standards. The rst report on the implementation of the
Action Plan for Chapter 23 states that a progress has been made with regards
to the training of judges, prosecutors and police ofcers, i.e. six seminars on
89
Accessed on the ministries’ ofcial web site: Ministry of Interior (http://www.mup.gov.rs/),
Ministry of Justice (http://www.mpravde.gov.rs/), on 08/08/2016.
90
Criminal Procedure Code of the Republic of Serbia. Ofcial Gazette of the Republic of Serbia,
72/2011, 101/2011, 121/2012, 32/2013, 45/2013 and 55/2014.
91
More information and the entire Report available at http://hatecrime.osce.org/serbia, accessed on
08/08/2016.
92
More information in Stjelja I., and Viguier C. (2014). Civil society against hate crimes. Available
at http://www.yucom.org.rs/wp-content/uploads/2015/02/zlocin-iz-mrznje-brosura-2.pdf, accessed
on 08/08/2016.
93
The Government of the Republic of Serbia (2016). Final draft of the Action plan for Chapter
23. Available at http://www.mpravde.gov.rs/les/Akcioni%20plan%20PG%2023.pdf, accessed on
13/08/2016, p. 308.
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hate crimes were held in the organization of the Judicial Academy. It was said
that the representatives of the competent institutions held two meetings with the
representatives of the non-governmental sector on establishing mechanisms for
combatting hate crimes in the Republic of Serbia.
94
Taking into account all of the above, we believe that the Republic of Serbia
legislation is partially harmonized with the EU legislation.
13. LEGISLATION OF THE REPUBLIC OF MONTENEGRO
Article 42a of the Criminal Code of Montenegro stipulates that committing
a crime out of hatred will be taken into account as a separate, aggravating
circumstance when meting out the sentence. It also prescribes that a criminal
offence will be considered a hate crime if committed because of race, religion,
nationality or ethnicity, sex, sexual orientation or gender orientation of another
person unless prescribed as the element of the underlying or aggravated form of
a criminal offence.
95
Such exception, i.e. the aggravated form is provided for in
the Criminal Code for the criminal offence of Endangering Security (Article 168,
Paragraph (2) of the CC of Montenegro).
Although there is a legal ground for sanctioning hate crimes, the Centre
for Civic Education of Montenegro [CCE] stated on many occasions that these
provisions are not sufcient, and that it was necessary to regulate sanctioning hate
crimes through special amendments to the law, that is, to work on greater application
of those provisions by the Montenegrin courts (“CCE: Harsher punishments”,
2013). Accordingly, in 2012, 14 non-governmental organizations in Montenegro
submitted a proposal to the Government of Montenegro to expand the criteria set
out in the said Article regulating hate crimes, which are in practice often a motive
for committing such crimes. In addition to the legally prescribed characteristics,
they suggested that health, disability, skin colour, political or other afliation,
language, education, nancial situation, birth and social status be included into the
provision.
96
In terms of the rights of the victim, the CPC of Montenegro does not treat
victims of hate crimes separately. In Article 234, victim is afforded the right to
94
Republic of Serbia Council for the implementation of the Action plan for Chapter 23. (2016).
First report on the implementation of the Action plan for Chapter 23 for the activities due by the
second quarter of 2016. Available at http://www.mpravde.gov.rs/les/Izve%C5%A1taj%20br.%20
1-2-2016%20o%20sprovo%C4%91enju%20Akcionog%20plana%20za%20Poglavlje%2023.pdf,
accessed on 13/08/2016.
95
Criminal Code of Montenegro. Ofcial Gazette of the Republic of Montenegro, 70/2003, 13/2004,
47/2006 and Ofcial Gazette of the Republic of Montenegro, 40/2008, 25/2010,32/2011, 64/2011
another Law, 40/2013, 56/2013, 14/2015 42/2015 and 58/2015 – another Law.
96
The proposed amendments to the Criminal Code are available at http://www.hraction.org/wp-
content/uploads/FIN-Predlog-i-pratece-pismo-18-12-2012.pdf, accessed on 08/08/2016.
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35
le for compensation for the damages incurred by the commission of crime.
97
We
note that pursuant to the provisions of the CPC the investigation is initiated ex
ofcio, i.e. no evidence or the incident being reported by the victim is needed. The
victim does not have the right to question the decision to cease the investigation,
but pursuant to Article 290, Paragraph (5), the victim may take over prosecution
by ling a direct indictment. Contrary to the EU standards, the victim of the crime
does not have the right to appeal if the motive for the commission of the crime was
not taken into consideration.
With regards to the systematic collection of data it is important to stress that
the Prosecutors Ofce and the Supreme Court of Montenegro collect data on hate
crimes, but the data is not public and is not included in the OSCE Hate Crimes
report for 2014.
There is no information available on the direct implementation of the Victims’
Rights Directive.
We have not found any information on any kind of the training for the police,
judges and prosecutors on hate crimes on the MJ’s and MI’s ofcial websites.
There is also no information that the police or prosecutor’s ofces have
specialized ofces for combatting hate crimes.
The adoption of the Action Plan on combatting hate crimes and the harmonization
of the legislation with the EU standards is set out in the Action Plan for Chapter 23
from 2013. The said Action Plan does list certain plans for necessary amendments
for the purpose of harmonization of the national legislation with the EU legislation.
Also listed are the necessary amendments to the CC, in accordance with the
provisions of the Framework Decision, Convention on elimination of all forms of
discrimination against women and the ODIHR’s observations. The aim of the new
provision under Article 42a is to ensure harsher sanctions and thus increased legal
protection of the especially vulnerable social groups whose members are victims of
different criminal offences committed out of hatred due to their afliation.
98
To reiterate, conducting investigation into a hate crimes does not depend on
the crime being reported by the victim. We would also like to stress that Article
24, Paragraph (1) of the CC of Montenegro stipulates that “Anyone who with
intent incites another to commit a criminal offence will be punished as if s/he has
committed it by himself/herself”.
In accordance with the above, we believe that the legislation of Montenegro is
largely not harmonized with the EU legislation.
97
Criminal Procedure Code of Montenegro. Ofcial Gazette of Montenegro, 57/2009, 49/2010,
47/2014 - Decision US CG, 2/2015 - Decision US CG and 35/2015.
98
Government of Montenegro (2013). Action plan of the Government of Montenegro for Chapter
23 – Judiciary and fundamental rights. Available at www.gov.me, accessed on 11/08/2016, p. 262.
Conference Proceedings: Conference on Hate Crimes in South-East Europe,
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36
14. LEGISLATION OF THE REPUBLIC OF MACEDONIA
When addressing aggravating circumstances in Article 39, Paragraph (5), the
Criminal Code of Macedonia
99
stipulates that when meting out the sanction the
court shall in particular take into consideration whether a crime was committed
against a person or a group of persons or property, directly or indirectly, because of
their sex, race, skin colour, belonging to a marginalized group, ethnicity, language,
nationality, social background, religion or religious beliefs, other beliefs, education,
political afliation, private or social status, mental of physical disability, age, family
or marital status, nancial status, health.
In Article 144, Paragraph (4) it is stipulated that whoever threatens, using
information technology, to commit a crime subject to a sentence of ve or more
years of imprisonment against a person on the basis of their sex, race, skin
colour, belonging to a marginalized group, ethnicity, language, nationality, social
background, religion or religious belief, other beliefs, education, political afliation,
personal or social status, mental or physical disability, age, family or marital status,
nancial status, health, shall be sentenced to one to ve years of imprisonment.
The CPC of Macedonia
100
does not treat separately victims of hate crimes.
Article 110, Paragraph (2) affords the right to the victim to le a property claim. It
stipulates that court in the convicting verdict decides on the property claim partially
or in full. Also, court has the possibility not to decide on the property claim if
that would prolong the proceedings, and if there is no sufcient evidence during
the proceedings to adjudicate fully or partially on the property claim, and for the
remainder of the claim the court can issue a supplementary verdict. Article 110,
Paragraph (3) provides for the possibility that the injured party in some cases may
seek compensation from the insurance company insuring the accused/defendant.
According to the provision of the CPC, investigation is initiated ex ofcio, i.e.
the statement or the report by the victims is not required. The injured party does
not have the right to revision of the decision to cease investigation or not to
le indictment. Pursuant to Article 57 the injured party may take over criminal
prosecution retaining the existing or by raising a new indictment. Contrary to the
EU standards, the injured party does not have the right to appeal in cases when the
motive for committing the crime was not taken into consideration.
In terms of collecting data, the OSCE Report on Hate Crimes for 2014 indicates
that there is information on several dozen hate crimes, but OSCE also notes that
Macedonia does not collect statistical data on hate crimes.
101
99
Criminal Code of Macedonia. Ofcial Gazette of the Republic of Macedonia, 37/96; The Law on
amendments to the Criminal Cod. Ofcial Gazette of the Republic of Macedonia, 80/99, 4/02, 43/03,
19/04, 81/05, 60/06, 73/06, 7 /08, 139/08, 114/09, 51/11, 135/11, 185/11, 142/12, 166/12, 55/2013, 02/14.
100
Criminal Procedure Code of Macedonia. Ofcial Gazette of the Republic of Macedonia, 150/10;
In Macedonian: Zakon za krivičnata postapka.
101
More information, as well as the complete Report available at http://hatecrime.osce.org/former-
yugoslav-republic-macedonia, accessed on 09/08/2016.
Conference Proceedings: Conference on Hate Crimes in South-East Europe,
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37
There is no information whether the Victims’ Rights Directive is directly
implemented.
The ofcial websites of the MJ and the MI do not contain information on any
type of training for police, judges, or prosecutors on hate crimes.
It is not indicated that there are specialized ofces for combatting hate crimes
in the police or the prosecutors ofces.
Analysing the parameters we came across the Helsinki Committee for
Human Rights Reports stating that hate crimes are covered up and not processed
in Macedonia (“Helsinki Committee: In Macedonia”, 2013). Macedonia does not
have any action plans related to the ght against hate crimes.
Taking into account all of the above, we believe that the Macedonian legislation
is largely not harmonized with the EU legislation.
15. LEGISLATION OF THE REPUBLIC OF ALBANIA
Until the latest amendments there were no provisions in the Criminal Code
of Albania
102
addressing hate crimes or racist or other motives of the perpetrators
that courts should take into account as aggravating circumstances when meting
out the sentence. In its third Report on Albania, the European Commission against
Racism and Intolerance [ECRI] states that the Albanian authorities claimed that
the provisions that would regulate hate crimes are problematic for the Albanian
legal system.
103
The latest amendments to the CC of 2013, in Article 50, Paragraph (1) stipulates
that bias motivation based on sex, race, skin colour, ethnicity, language, gender
identity, sexual orientation, political, philosophic or religious beliefs, health,
genetic predispositions or disability shall be taken into account as aggravating
circumstances in meting out sentences. Furthermore, hate crime based on sexual
orientation and gender identity is included in Article 265 together with offences
against sex, race, ethnicity, religious beliefs, etc.
In terms of rights of the victims, the CPC of Albania
104
does not give special
place to the victim of hate crimes. Article 61 provides for property claim to be led
by the victim in relation to the damages caused by the crime. In accordance with
102
Criminal Code of the Republic of Albania. Fletorja Zyrtare e Republikës Shqipërisë, 7895/1995,
Amendments to the Criminal Code of the Republic of Albania, Fletorja Zyrtare e Republikës
Shqipërisë, 7895/2013.
103
European Commission against Racism and Intolerance. (2015). ECRI report on Albania (fth
monitoring cycle). Available at https://www.coe.int/t/dghl/monitoring/ecri/Country-by-country/
Albania/ALB-CbC-V-2015-18-ENG.pdf, accessed on 01/062016, p. 20-25.
104
Criminal Procedure Code of the Republic of Albania. Fletorja Zyrtare e Republikës Shqipërisë,
7905/1995, Amendments to the Criminal Procedure Code of the Republic of Albania. Fletorja Zyrtare
e Republikës së Shqipërisë, 7095/2013.
Conference Proceedings: Conference on Hate Crimes in South-East Europe,
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38
provisions of the CPC, the investigation is initiated ex ofcio, i.e. the statement
or the report by the victims is not required. The victims have the right to request
reconsideration of the decision on cessation of investigation, i.e. le appeal in
accordance with Article 329. Contrary to the EU standards, the injured party does
not have the right to appeal in cases when the motive for committing the crime was
not taken into consideration.
Albania does not systematically collect data on hate crimes. ODIHR reported
in its 2014 Report that Albania failed to provide information and statistical data on
hate crimes.
105
There is no information whether the Victims’ Rights Directive is directly
implemented.
The ofcial websites of the MJ and the MI do not contain information about
training for the police, judges and prosecutors on hate crimes. What is worth
mentioning is that in July 2015, the biggest consultations meeting on LGBT rights
was held. It was initiated by the Ministry of Social Protection and Youth in which
several experts participated. One of the outcomes of the meeting was proposal for
an action plan for elimination of discrimination of LGBT for the period from 2015
to 2020. Furthermore, Albania is taking steps to harmonise with the EU acquis.
Some progress has been made, such as above mentioned providing for hate crimes
provisions in the CC.
Moreover, there is no mention of specialised ofces for combating hate crimes
within police or prosecutors ofces.
Albania has no action plans related to combatting hate crimes. Taking into
account all of the above, we believe that the Albanian legislation is largely not
harmonized with the EU legislation.
16. LEGISLATION OF THE REPUBLIC OF KOSOVO
The Criminal Code of the Republic of Kosovo
106
, in Article 74 (General rules
on meting out punishment) stipulates that the following circumstances will be taken
into consideration in dening the punishment as aggravating circumstance: that
the crime was committed against a person, group or property due to ethnicity or
nationality, statehood, language, religious afliation, lack of religious afliation,
colour, sex, sexual orientation or for closeness with persons with such characteristics.
Racial, national or religious motives represent an aggravating factor for murder
107
and property damage
108
.
105
More information, as well as the complete Report available at http://hatecrime.osce.org/albania,
accessed on 09/08/2016.
106
Criminal Code of the Republic of Kosovo. Ofcial Gazette of the Republic of Kosovo, No. 19 of
8 December 2012.
107
CC of the Republic of Kosovo, Article 179, Paragraph 1.10.
108
Ibid, Art. 333. para. 4. In addition to the listed prejudice, aggravating circumstances of this offence
are also: language, the lack of religious belief, colour, sex, sexual orientation or afliation to persons
with said characteristics.
Conference Proceedings: Conference on Hate Crimes in South-East Europe,
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39
In terms of the rights of the victim, the CPC of Kosovo
109
does not give
special place to the victim of hate crimes. Article 458 provides for property claim,
compensation of damages, return of belongings or annulment of a contract to be
led by the victim. The investigation is initiated ex ofcio, i.e. the statement or the
report by the victims is not required. The victims have the right to be informed on
cessation of investigation in order to continue the prosecution
110
or to be informed
about withdrawal of the indictment before the main trail in order to continue the
prosecution
111
.
Contrary to the EU standards, the injured party does not have the
right to appeal in cases when the motive for committing the crime was not taken
into consideration (Sijerčić-Čolić and Halilović, 2007).
There is no systematic collection of hate crimes data in Kosovo. The ODIHR’s
report does not mention Kosovo at all. The information that can be found on the
number of hate crimes in Kosovo have been collected by the OSCE Mission to
Kosovo. In its report, OSCE emphasizes that there were 542 ethnically motivated
incidents in Kosovo only in 2014 and that there are no specialised services that
could accurately collect hate crimes data.
112
In 2012, the OSCE Mission conducted
training of the Kosovo police in order to be able to independently recognise hate
crimes.
There is no information on the direct implementation of the Victims’ Rights
Directive.
There is no information on the ofcial websites of the MJ and the MI whether
there has been any kind of training for the police, judges and prosecutors on hate
crimes. Due to the specic functioning of Kosovo, the OSCE Mission plays an
important role in monitoring the work of the police, especially with regards to
respecting human rights and the rights of communities, improving the level of
awareness of the security actors regarding the concerns related to human rights,
such as: use of force, security issues, protection of socially vulnerable groups and
hate crimes. In addition, there is no information whether the police or prosecutors
ofces have specialized ofces for combatting hate crimes.
Kosovo does not have any action plans in relation to combatting hate crimes.
Taking into account all of the above, we believe that the legislation of the
Republic of Kosovo is largely not harmonized with the EU legislation.
109
C riminal Procedure Code of the Republic of Kosovo. Ofcial Gazette of the Republic of Kosovo,
No. 37 of 28 December 2012.
110
CPC of the Republic of Kosovo, Art. 224, para. 2. and Art. 62, para. 1.
111
Ibid, Art. 326, para. 1. and Art. 62, para. 1.
112
More on the number of hate crimes can be found in the OSCE Mission to Kosovo data, available
at http://hatecrime.osce.org/country/none?year=2014, accessed on 12/08/2016.
Conference Proceedings: Conference on Hate Crimes in South-East Europe,
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40
18. CONCLUSIONS
1. In the legal framework of all Western Balkans countries, racism and
xenophobia as motives for the commission of a crime are provided for
in the criminal legislation, affording aggravating form to certain crimes
or obliging court to take such motives into account when meting out a
sentence. Therefore, the legislation in this part is harmonized with the
Framework Decision.
2. The criminal procedure codes in the Western Balkans countries prescribe
for the ex ofcio initiation of investigation. However, none of the CPCs
stipulates that investigation into hate crime needs to be expedient and
efcient, or that the police should investigate the motive whenever there
is an indicator that it existed, as such, when the crime was committed.
3. Full integration of the Victims’ Rights Directive into national legislations
of the Western Balkans is necessary. This includes in particular the
provisions on the assessment of repeated victimization of the hate crime
victim, establishing specialized services for providing support to victims
and facilitating of reporting hate crimes, so that victims can report hate
crimes even online. Free victim support centre for hate crimes victims
exists only in Serbia at the Higher Public Prosecutors Ofce in Belgrade.
4. In all countries the injured parties have the right to seek revision of the
decision to cease investigation or not to raise indictment, or to continue
prosecution by raising direct indictment; such is the case in Montenegro,
Macedonia or Kosovo.
5. The injured party has the right to le a property claim, i.e. to seek
compensation from the perpetrator in all countries.
6. Criminal procedure codes need to be amended to afford victims the right
to appeal verdicts, if the victim nds out that the court did not take into
consideration the motive for committing hate crime.
7. None of the countries has specialised ofcers or units in the police and
prosecutors ofces for combatting hate crimes.
8. With regards to training on hate crimes, the Judicial Commission of the
Republic of Serbia, and the Judicial and Prosecutorial Training Centres
in BiH conduct training for judges and prosecutors. In BiH and Kosovo
training is also carried out by non-governmental organizations and the
OSCE Miss ion. Target group of this training are police ofcers. There is
no information whether Montenegro, Macedonia and Albania have carried
out any type of training for persons coming into contact with victims of
crimes. Training for police ofcers, judges and prosecutors needs to be
institutionalised with the aim of better understanding and processing of
hate crimes. Those coming into contact and work with victims particularly
need training.
Conference Proceedings: Conference on Hate Crimes in South-East Europe,
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41
9. Only Serbia systematically collects data on hate crimes. Montenegro also
collects data, but their data is not public. BiH, Macedonia, Albania and
Kosovo do not collect data on hate crimes. A legislative framework needs
to be adopted that will regulate systematic collection and processing data
on hate crimes in all Western Balkans countries.
10. In terms of raising awareness on hate crimes the biggest role is played
by the civil society organizations. Through public campaigns and in
cooperation with non-governmental organizations, the Western Balkans
countries need to raise awareness of the potential victims on their rights
and on their right to legal aid.
11. As a part of the Draft Action Plan for Chapter 23 of December 2014,
Serbia also adopted the Action Plan for combatting hate crimes, i.e. the
harmonization of the legislation with the EU standards. The situation is
similar in Montenegro, which provided for the adoption of the Action
Plan and the necessary amendments in 2013. BiH, Macedonia, Albania
and Kosovo have no action plans.
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46
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47
CRIMINAL JUSTICE RESPONSE TO HATE CRIMES
ON THE TERRITORY OF THE REPUBLIC OF
SERBIA AND IN THE REGION
Milena Bogdanić
1
Jelena Rakić
2
ABSTRACT
The appearance of contemporary technological achievements has resulted in a
major social crisis and consequently in the loss of important ethical and traditional
values, which has led to increased hatred between people. Moreover, this is the
main motive for committing specic criminal offences. The Republic of Serbia
and the countries in the region are facing the war legacy, which also contributes to
the social crisis. Hate crimes are widely present both in our region and throughout
Europe. The number of these crimes is signicant primarily due to the lack of a
single denition that would differentiate hate crimes from other criminal offences.
On the other hand, there are victims who do not report these crimes because of
fear and distrust in the competent authorities. The authors of this paper focus on
the normative regulation of hate crimes committed on the territory of the Republic
of Serbia and the countries in the region, and discuss some of the cases that had
sufcient elements to be qualied as war crimes, or where these elements could have
been taken into account at least as aggravating circumstance, but were qualied as
other criminal offence. Criminal legislation of the Republic of Serbia introduced
hate crime in 2012, thus making a signicant step towards the protection of human
rights and meeting the requirements of the European Union.
Keywords: hate crime, hate/hatred, criminal offences with the elements of hate,
hate as a motive for committing a criminal offence.
1. INTRODUCTION
Hate-motivated acts date back to the distant past, but with the process of the
development of tolerance and the protection of human rights they have gained in
importance and therefore have been differentiated from other crimes. Hatred has
always been perceived as a base motive for offence and in all previous criminal
legislation of the Republic of Serbia it was classied as an aggravating circumstance
in sentencing the offender. Base motives are actually all those motives (hatred,
1
Milena Bogdanić MSc, Teaching Assistant at the International University of Novi Pazar, Higher
Education Unit in Niš. E-mail: milenab88@live.com
2
Jelena Rakić MSc, Teaching Assistant at the International University of Novi Pazar, Higher
Education Unit in Niš. E-mail: jelenarakic808@yahoo.com
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48
envy, greed, malice) that make a human being an unworthy individual in society
and do not coincide with the ethical values and norms on which society rests.
As regards the offences committed out of hatred, emphasis is placed on the very
motive because it is the key element on the basis of which a hate crime differs from
all other offences.
In most countries of Southeast Europe hate crime is a special, aggravating
circumstance in sentencing the offender for the offences committed out of hatred
based on race, religion, national and ethnic origin, sex, sexual orientation and
gender identity. Since the Constitution and Law, as the highest legal acts of a state,
guarantee the protection of fundamental human rights and freedoms, it is necessary
to develop and establish mechanisms to recognise hate crime and provide adequate
protection to all the existing as well as potential victims. In order to start discussing
the rule of law, it is necessary for a country to have the laws structured in such a
way that their legal norms are as comprehensible and easy for practical application
as possible, thus avoiding many of the gaps that occur during their implementation.
In the Republic of Serbia, hate crime is in the legal vacuum and there are countless
dilemmas that should be solved to allow the implementation of relevant provisions.
Due to the insufcient willingness and commitment of public authorities to apply
the provisions regulating hate crime, the authors of this paper propose some
possible solutions that could be applied regarding the implementation of hate crime
legislation.
2. HATE CRIME REGULATION IN THE NEIGHBOURING COUNTRIES
The Criminal Code of the Republic of Croatia adopts a combined approach
to aggravating circumstances in sentencing for criminal offences motivated by
hatred; more precisely, hatred constitutes a qualied form of certain criminal
offences, while in other criminal offences it is taken into account in sentencing.
Croatia has an important place in the ght against hate crime, which was introduced
in their criminal legislation in 2006. The legislator dened hate crime as any
offence committed because of race, colour, religion, national or ethnic origin,
sexual orientation or gender identity of another person, which will be taken as an
aggravating circumstance, unless the same law provides for stricter punishment.
3
Therefore, according to the specic provisions on stricter punishment, hate crime
is a qualifying circumstance or obligatory element of certain criminal offences.
The mentioned aggravating circumstance is envisaged for the crime of aggravated
murder (Article 111, paragraph 4); crime of female genital mutilation (Article 116,
paragraph 3); crime of bodily harm (Article 117, paragraph 2); crime of serious
bodily harm (Article 118, paragraph 2); crime of particularly serious bodily harm
(Article 119, paragraph 2) and serious crimes against sexual freedoms (Article
154) including sexual intercourse without consent (paragraph 1, point 4), rape
(paragraph 2) and causing disorder (Article 324, paragraph 2). In these crimes,
3
Criminal Code of the Republic of Croatia. Ofcial Gazette, 125/11, 144/12, 56/15, 61/15, Article
87, paragraph 21.
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49
hatred, as dened by law, constitutes the substance of criminal offence and the
court is obliged to prove the existence of this motive, which guarantees that the
authorities responsible for ex ofcio prosecution will direct their activities towards
investigating and proving the motive of bias. According to general provisions
on stricter punishment, hate crime can be any other criminal offence if it is bias-
motivated. In addition, the Criminal Code of the Republic of Croatia envisages ex
ofcio prosecution for the crime of coercion if committed out of hatred (Article 138,
paragraph 2)
4
. Moreover, the crime of threat, if committed out of hatred, shall be
prosecuted ex ofcio instead of initiating a procedure by private lawsuit or petition
(Article 139, paragraph 4). Prescribing ex ofcio prosecution for certain crimes, if
they are committed out of hatred, additionally emphasises the seriousness of these
crimes and the legislators position according to which the public authorities shall
take the necessary steps to prove these offences, which should motivate victims to
report offences and strengthen their condence in the police and judiciary.
The amendments to the criminal legislation of the Republic of Srpska, the
Federation of Bosnia and Herzegovina and the Brčko District of Bosnia and
Herzegovina envisage the introduction of more severe punishments for the
perpetrators of criminal offences committed out of hatred. These provisions were
harmonised in different jurisdictions by entry into force of the Law on Amendments
to the Criminal Code of the Federation of Bosnia and Herzegovina
5
. In fact,
before these Amendments, the Criminal Code of the Federation of Bosnia and
Herzegovina did not explicitly envisage hatred as aggravating circumstance, either
general or special, but it could be assumed through the formulation: “for racial,
national or religious reasons”, which constituted a qualifying circumstance in
certain criminal offences
6
, or could be considered through “motives for committing
the crime” in the process of traditional sentencing
7
. The amended Criminal Code
of the Federation of Bosnia and Herzegovina provides that hate crime is any
criminal offence committed because of race, skin colour, religious beliefs, national
or ethnic origin, language, disability, sex, sexual orientation or gender identity of
another person and such action shall be considered an aggravating circumstance
unless stricter punishment is prescribed for the qualied form of a criminal offence
committed out of hatred.
8
The same legal provision exists in the Criminal Code of
4
The same article stipulates prosecution ex ofcio, except when it is committed out of hatred, against
a child, person with severe disability, close person, lawyer in the exercise of his or her activities or
responsible person in the exercise of public activity, although private prosecution is envisaged for this
criminal offence, except in the aforementioned cases.
5
Ofcial Gazette of the Federation of Bosnia and Herzegovina, 46/16.
6
These criminal offences are: murder (Art. 166, para. 2); serious bodily harm (Art. 172, para. 4); rape
(Art. 203, para. 4) and damage of anothers object (Art. 293, para. 3), Criminal Code of the Federation
of Bosnia and Herzegovina. Ofcial Gazette of the Federation of Bosnia and Herzegovina, 36/03,
37/09, 21/04, 69/04, 18/05, 42/10, 42/11, 59/14, 76/14.
7
Ibid, Article 49, paragraph 1.
8
Law on Amendments to the Criminal Code of the Federation of Bosnia and Herzegovina. Ofcial
Gazette of the Federation of Bosnia and Herzegovina, 46/16, Article 1.
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50
the Republic of Srpska, in its part related to protected characteristics, but it differs
in stipulating that hate crime will exist also in such cases where it is the result
of partial prejudice in connection with any of the protected characteristics.
9
The
Criminal Code of the Brčko District of Bosnia and Herzegovina
10
denes hatred
as motive for committing a criminal offence specied in this Code and entirely or
partly committed due to actual or assumed ethnic or national origin, language or
script, religious beliefs, race, skin colour, sex, sexual orientation, political or other
afliation, social origin, social status, age, health or other characteristics, or due
to bringing into association with persons who have such characteristics (Article
2, paragraph 37). This denition is more comprehensive than the previous two
due to the fact that it does not bring into question the concept of misperception
and association; it has a very broad list of characteristics, which is not exhaustive
and can include other differences according to court assessment. All three Codes
dene hatred as general aggravating circumstance in cases where law does not
provide stricter punishment for the qualied form of crime committed out of hatred.
While the aforementioned laws have identical provisions on the general rules for
increased punishment, there are certain differences regarding the qualied forms
of individual criminal offences. The Criminal Code of the Brčko District denes
hatred as qualied form for the following criminal offences: murder (Article 163),
serious bodily harm (Article 169), rape (Article 200), aggravated larceny (Article
281), grand larceny (Article282), robbery (Article 283), damage of anothers object
(Article 287), causing of general danger (Article 317), destruction or damage of
important economic facilities (Article 318), damage of protective devices at work
(Article 319) and unlawful and improper construction works (Article 320). The
Criminal Code of the Federation of Bosnia and Herzegovina includes hatred as
obligatory element in the criminal offences of murder (Article 166); serious bodily
harm (Article 172); rape (Article 203) and damage of anothers object (Article 293).
In the Republic of Srpska, hatred is a qualied form for the crimes of aggravated
murder (Article 149); serious bodily harm (Article 156); rape (Article 193);
aggravated larceny (Article 232); robbery (Article 233); grand larceny (Article
234); damage of anothers object (Article 249) and causing of general danger
(Article 402).
Hate crimes are included in the criminal legislation of some countries in the
region in a comprehensive way, which has been achieved by prescribing hatred
as general factor for harsher punishment as well as qualifying circumstance in the
offences against life and body, sexual freedom and property. Although the legal
provisions are mainly uniform, the clearest and most comprehensive provision
is included in the Criminal Code of Brčko District of Bosnia and Herzegovina,
which should provide a greater guarantee for victims that the motive of hate will be
properly investigated and proved, thus leading to the achievement of justice.
9
Ofcial Gazette of the Republic of Srpska, 49/03, 108/04, 37/06, 70/06, 73/10, 1/12, 67/13, Article
37, paragraph 3.
10
Ofcial Gazette of the Brčko District of Bosnia and Herzegovina, 47/11, 9/13, 21/10, 10/03.
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3. HATE CRIME IN THE CRIMINAL LEGISLATION OF THE
REPUBLIC OF SERBIA
The 2012 Amendments to the Criminal Code
11
prescribe a special circumstance
in sentencing for criminal offences committed out of hatred. Article 54a of this
Code stipulates: “If a criminal offence was committed out of hatred because of
race, religion, national or ethnic origin, sex, sexual orientation or gender identity
of another person, the court shall consider that circumstance as an aggravating
circumstance, unless it is prescribed as a characteristic of criminal offence.” It is
evident that the legislator has introduced a separate article for this provision in
order to emphasise its specicity on the one hand, given that it is the only obligatory
aggravating circumstance, and, on the other hand, to place emphasis on greater
safety of persons and groups that have any of the protected characteristics.
This legislators position is a positive step forward but we have also identied
certain shortcomings, which, in certain cases can make this provision declarative
and not applicable. The rst reason for having this opinion is a narrow list of
protected personal characteristics. Starting from the fact that the regulations
dealing with criminal offences motivated by hatred are based on the principle of
non-discrimination, we will discuss the list of protected characteristics contained
in the Law on the Prohibition of Discrimination.
12
This Law provides protection
also to people who differ in race, colour, ancestry, citizenship, language, religious
or political beliefs, nancial status, birth, genetic characteristics, health status,
disability, marital and family status, previous convictions, age, appearance,
membership in political, trade union and other organisations (Article 2, paragraph
1). Obviously, this list is much wider than the one which should be used in practice
for identifying the existence of hate crimes and stricter sentencing on this basis,
which cannot be considered justied.
Another identied shortcoming is related to the relevance of error in persona
principle in deciding on the existence of special aggravating circumstance. In fact,
it is completely justiable to raise the question of application of this aggravating
circumstance in cases where the offender had misconceptions about the personality
of the victim, or where a criminal offence occurred as a result of the assumed personal
characteristics of victims, or as a result of bringing the victim into connection with
the group against which the offender has prejudice, or in cases where the victim
does not conrm the characteristic that caused victimization. Take for example the
situation where the victim is Roma, but in the process of investigating a crime or
elements that would inuence harsher sentencing, he or she did not declare to be
a member of this national minority. This situation can occur in practice due to the
fact that Roma are prone to social mimicry and those who are partially or fully
integrated in society often declare themselves as members of the ethnic groups with
11
Ofcial Gazette of the Republic of Serbia, 85/2005, 88/2005, 107/2005, 72/2009, 111/2009,
121/2012, 104/2013, 108/2014.
12
Ofcial Gazette of the Republic of Serbia, 22/2009.
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52
which they live in the same area (Radovanović & Knežević, 2014). In addition,
victims can also be the people who do not belong to the group that is a target of
the offender’s prejudice, but are brought into connection with that particular group
because they are engaged in protecting the rights of its members or the offender
has assumed that they belong to a group characterised by diversity. In such cases,
including the victim’s assumed belonging to a certain group and expanding the
list of protected characteristics would contribute to achieving the purpose of
prescribing hate crimes as obligatory aggravating circumstance. Despite the fact
that the Law on the Prohibition of Discrimination envisages not only actual but also
assumed characteristics (Article 2, paragraph 1), it was not taken into consideration
in formulating the provision of the Criminal Code, although it would bring better
clarity and comprehensiveness of the provision and greater trust in judiciary among
at-risk groups, thus allowing the efcient application of legal provisions.
4. OVERVIEW OF SOME CRIMINAL OFFENCES MOTIVATED BY
HATRED
Criminal offences motivated by hatred are not a product of the modern world,
but in the era of tolerance development and strengthening of mechanisms for the
protection of human rights, they have gained in importance, and therefore they
have been differentiated from other crimes in criminal legislation. Although even
before the introduction of hate crimes there were mechanisms for the protection
from these offences, new solutions have been developed to help public authorities
to commit to their implementation in some way. A judicial epilogue was recorded
in a certain number of cases because the elements of hate crime certainly existed,
but for some reason the judiciary failed and at the time of proceedings our criminal
law did not recognise hatred as an aggravating circumstance. These are some
examples:
In 2006, the Roma settlement Beograd mala in Niš was attacked by two adults
and several minors. The attack took place in the early morning hours. The attackers
stoned the Roma houses, which resulted in all the windows broken and damaged
houses. While stoning the houses, the attackers cursed and shouted: “Gypsies,
you are dead!” A procedure was initiated before the District Court in Niš for the
criminal offence of causing national, racial and religious hatred and intolerance,
which ended in 2008 with the judgment according to which the adult attackers
were sentenced to four months in prison.
13
In 2010, in Jabuka village there was a murder of a minor Serbian boy committed
by a Roma who was also minor. After this event, the Roma community members
were subjected to physical violence for three days, their houses were stoned and
one house was set on re.
14
In addition, the members of Serbian nationality, Jabuka
13
See more: https://www.mrc.org.rs/saopstenja/2010.html, accessed on 20 June 2016.
14
This case could be considered a vengeful hate crime due to the fact that it was committed on
Conference Proceedings: Conference on Hate Crimes in South-East Europe,
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53
residents, gathered and marched through the streets inhabited by Roma shouting:
“Kill, slaughter, the Gypsy must not exist!” The Methodist Church was also
stoned, on the assumption that it was the place of gathering of the local Roma.
Such gathering, which certainly was not a tribute to the murdered boy but a call
to lynch the fellow citizens of Roma ethnicity, was banned only after three days.
This event resulted in the ling of criminal charges against six young men for
the crime of inciting national, racial and religious hatred and intolerance
15
, and in
the criminal proceedings it was established that the accused had participated in
the stoning of Roma houses, setting one of them on re, destruction of personal
property of Roma minority members, physical attacks and insults on the basis of
nationality, which is a qualifying circumstance in this criminal offence, punishable
by 1-8 years in prison. However, the accused were punished with ve months of
suspended sentence.
16
The aforementioned offences have the elements based on which they could be
qualied as hate crimes, but at the time of their perpetration the Criminal Code of
the Republic of Serbia did not dene this aggravating circumstance, and therefore
the crimes were qualied properly. We assume that this qualication should have
emphasised the danger faced by Roma, given that every hate crime at that time
was qualied as a criminal offence of inciting national, racial and religious hatred
and intolerance. Consequently, the criminal sanction, i.e. the choice of sanction
within the legally prescribed range should have emphasised the seriousness of
the offence. However, in both cases the offenders were punished below the legal
minimum, without specifying any extenuating circumstances, so that we cannot
nd a rational explanation for this decision.
In contrast to the above-described criminal offences in which, in our opinion,
the level of imposed criminal sanctions is disputable, there are examples in
which the level of criminal sanctions is appropriate for the criminal offence
committed, but we believe that the choice of specied aggravating circumstances
is questionable. Such is the case of physical assault that took place in Novi Sad
in June 2012. During a public bus ride, two brothers were attacked with sts rst
and then with a knife, which caused serious bodily harm in one injured party.
The attack took place because of the assumed sexual orientation of the injured
the basis of the previous crime committed by a Roma boy who does not belong to the Serbs, i.e. to
another social group carrying out revenge. Apart from this, there are following forms of hate crime:
defensive - resulting from the offender’s feeling of danger coming from a group against which a
bias has been developed believing that the group appropriates the resources that belong to him/her
and his/her group; hate crime for entertainment - usually committed by young people, in groups, in
order to gain support and conrmation of other participants. These are mostly minor offences, against
property or body; missionary - usually committed by people who have a distorted image of reality and
pathological problems (Tripković, 2011).
15
Criminal Code of the Republic of Serbia. Ofcial Gazette of the Republic of Serbia, 85/2005,
88/2005, 107/2005, 72/2009, 111/2009, 121/2012, 104/2013, 108/2014, Article 317.
16
See more: http://www.minoritycentre.org/sh/actuals/neprimerena-kazna-za-izazivanje-rasne-
mr%C5%BEnje-i-netrpeljivosti-u-jabuci, accessed on 19 June 2016.
Conference Proceedings: Conference on Hate Crimes in South-East Europe,
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54
parties. The accused was found guilty of committing a criminal offence of violent
behaviour and attempted murder for which he was sentenced to seven years of
imprisonment - six years for attempted murder and one year for violent behaviour.
The court assessed as aggravating circumstance the fact that the physical assault
had been perpetrated in a “full bus” and that the injured parties had not caused the
criminal offence by their actions.
17
This is undoubtedly a hate crime, but since it
occurred before the amendments to the Criminal Code, we believe that the criminal
offences were properly qualied and that the sanction imposed was proportionate
to the offence. What we consider disputable in this case is the reference to “full
bus” as aggravating circumstance. According to the general rules of sentencing
and determining of extenuating and aggravating circumstances, among other things
the court assesses the motives for committing the offence.
18
Bearing in mind this
formulation, we believe that the court did not have any obstacle for assessing hatred
as aggravating circumstance, which would not contribute substantially to the length
of sentence, but would send a message that the bias-motivated crimes will not be
tolerated because in addition to applying the mechanism for combating this type of
crime, the court understands and recognises the seriousness of such offences.
5. PROSECUTION FOR HATE CRIMES IN THE REPUBLIC OF SERBIA
Criminal codes regulate in different ways the criminal offences committed
as a result of the offender’s bias related to a characteristic of the victim. They
may be dened as a separate criminal offence; they may be covered by the general
provisions on stricter punishment or special provisions, or constitute an element
of certain criminal offences entailing the imposition of stricter punishment,
whereas the provisions on increased punishment can be combined, which is the
most comprehensive legal framework. When hate crime is dened as a separate
criminal offence or constitutes a qualied form of certain criminal offences, there
are no doubts about whether a hate motive should be included in the indictment
considering that this motive is a legal element of the criminal offence in question. In
these cases there is a base criminal offence for which the legislation has stipulated
a certain sentence and there is a more severe form punishable more severely than
the base form, and in that case the subject of prosecution is the more severe form.
However, there is a doubt regarding prosecution in cases where the increase of
punishment is of general nature and where hatred does not constitute an element of
substance of criminal offence.
In Serbia, hatred is covered by general provisions on stricter punishment, and it
is questionable whether the indictment should include the aggravating circumstance
and if yes the question is at what stage of the proceedings the accused should be
informed about the possibility of being punished more severely. We believe that
17
See more: http://www.yucom.org.rs/rest.
php?tip=vestgalerija&idSek=4&idSubSek=36&id=144&status=drugi, accessed on 6 July 2016.
18
Criminal Code of the Republic of Serbia, Article 54, paragraph 1.
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there is no valid ground for not including hatred in the indictment as mandatory
aggravating circumstance, since its exclusion would violate a series of criminal
procedure provisions. Primarily, the accused must be given the right to defence as
guaranteed by the provision according to which the accused must be informed, as
soon as possible and at the latest before the rst hearing, in detail and in a language
he or she understands, about the offence that he or she is charged with, the nature of
and reasons for the accusation. The accused must also be given the opportunity to
give a statement about all the facts and evidence against him or her and to present
facts and evidence in his or her favour (Article 68)19, which implies that in addition
to being informed about the base offence, the accused must be informed about
the possibility of more severe punishment on the ground of the motive of hatred.
However, the court is not bound by the legal qualication of criminal offence
specied in the indictment, and it is necessary that the court accepts the indictment
without re-qualifying the offence into the incitement of national, racial or religious
hatred and intolerance (which is usually the case) to which it is not possible to apply
this particular aggravating circumstance. If the court accepts the qualication of
criminal offence specied in the indictment, then the accused should be informed at
the main hearing about the possibility of more severe punishment since he or she will
give his or her statement on the charges at the main hearing (Article 392) and since
the bias motive will be proved at the main hearing, among other things. Failure to
inform the accused about the possibility of more severe punishment on the ground
of the motives of hatred deprives him or her of the opportunity to present evidence in
his or her defence, which violates the right to defence. In addition, pronouncing the
judgement of conviction without having discussed the motive of hatred at the main
hearing will lead to violations of the provision of the Criminal Procedure Code. In
fact, in the judgement of conviction, the court will, among other things, specify for
which offence the accused is found guilty, indicating the facts and circumstances
that constitute the elements of criminal offence and specifying also the facts and
circumstances on which the application of certain provisions of the criminal code
depends (Article 424). In this case it is the criminal code provision that relates to
sentencing or the special provision according to which the motive, i.e. hatred is
taken into consideration in determining more severe punishment. Furthermore, the
court must provide the reasons for each point of judgment in its rationale. Hence, in
the rationale of a judgment pronouncing the accused guilty, the court must specify
the facts taken into consideration in sentencing, the reasons that guided it in nding
that a harsher punishment than prescribed should be pronounced (Article 428).
Hence, if the court has pronounced a harsher punishment, without discussing the
facts related to the aggravating circumstances at the main hearing, such decision
would constitute a substantial violation of the criminal procedure due to the fact
that decisive facts are proven at the main hearing.
20
This is related to the position
19
Criminal Procedure Code of the Republic of Serbia. Ofcial Gazette of the Republic of Serbia,
72/2011, 101/2011, 121/2012, 32/2013, 45/2013, 55/2014.
20
Decisive facts include also the motives and circumstances under which a criminal offence was
committed, and the decision of the Supreme Court of Serbia (Kž 2105/57) indicates that base motives
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of the Supreme Court of Serbia according to which the facts and circumstances
relevant to sentencing are decisive facts and if the reasons concerning these facts
and circumstances are contradictory to a large extent, it constitutes a substantial
violation of the provisions of criminal procedure code (Kž I-943/03). On the
other hand, the collection of evidence related to the motive of hatred during
investigation
21
, as well as the inclusion of this motive in the indictment, will be
of importance even in the case of concluding a plea agreement. This agreement
may be concluded by the defendant and the public prosecutor from the moment
of the issuance of an order to conduct an investigation until the defendant states
his or her position in relation to the charges at the main hearing (Article 313). The
indictment will be crucial for the application of specic aggravating circumstances
if the defendant pleads guilty at the main hearing. In fact, pleading guilty entails
the admission of all the allegations in the indictment, which are considered
indisputable, and the defendant is imposed a more lenient sentence than the one
that would be pronounced in the regular procedure. Since in this case there is no
main hearing or proving of facts related to the criminal offence, i.e. decisive facts,
and consequently there is no consideration of aggravating circumstances, the
allegations in the indictment related to the existence of the motive of hatred may
be relevant to sentencing. Although the conclusion of plea agreement constitutes
an extenuating circumstance for the offender, there is no obstacle to take into
consideration the motive of hatred as aggravating circumstance in this case also,
given that the penalty or other criminal sanction or other measure in respect of
which the public prosecutor and the defendant have reached an agreement must be
in line with the criminal and other law (Article 317). In this regard, in the process
of determining the punishment, the prosecutor should take into account the facts
connected to the motive of hatred, but the court should also take into account the
appropriateness of punishment, pronounced as a result of the agreement between
the defendant and the prosecutor, in each specic case, all with the aim of proper
sentencing for hate crimes.
6. CONCLUSION
Based on all the above, it can be concluded that the problem in our country
is primarily the very narrow list of protected characteristics, which needs to be
expanded in line with the Law on the Prohibition of Discrimination. The new
provisions aimed at regulating hate crimes in a certain way obligate public
authorities to their application and therefore to a more successful ght against
are all the motives that are unworthy of human being such as: hatred, greed, envy, etc. (Stojanović,
Kolarić, 2012, p. 14), whereas hatred in case of hate crime constitutes a special motive, as such
prescribed as a special aggravating circumstance in sentencing.
21
This is pointed out in a judgment of the European Court of Human Rights, in which the court
argues that in case of racially motivated attacks, state authorities have the additional duty to take all
reasonable steps to unmask any religious motive and to establish whether or not religious hatred or
prejudice may have played a role in the events, and that in such cases the investigation could not be
pro forma investigation (Milanović v. Serbia, 44614/07).
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these ever growing crimes. However, practice shows that despite the introduced
novelties there are not many cases of prosecution for hate crimes and that the courts
do not demonstrate that they are sufciently sensitized to the provisions regulating
this crime. The main task of public institutions is to change this situation where
primarily the judicial authorities and police must take a decisive stand against the
prejudice against certain groups because thus they will contribute to the effective
punishment of the existing hate crimes and automatically prevent the perpetration
of new ones.
BIBLIOGRAPHY
Ignjatović, Đ. (2015). Kriminologija. Beograd: Pravni fakultet Univerziteta u
Beogradu, Dosije studio.
Criminal Code of the Republic of Croatia. Ofcial Gazette, 125/11, 144/12,
56/15, 61/15.
Criminal Code of the Brčko District. Ofcial Gazette of Brčko District, 47/11,
9/13, 21/10, 40/03.
Criminal Code of the Federation of Bosnia and Herzegovina. Ofcial Gazette
of the Federation of Bosnia and Herzegovina, 36/03, 37/09, 21/04, 69/04,
18/05, 42/10, 42/11, 59/14, 76/14.
Criminal Code of the Republic of Serbia. Ofcial Gazette of the Republic of
Serbia, 85/2005, 88/2005, 107/2005, 72/2009, 111/2009, 121/2012, 104/2013,
108/2014.
Criminal Code of the Republic of Srpska. Ofcial Gazette of the Republic of
Srpska, 49/03, 108/04, 37/06, 70/06, 73/10, 1/12, 67/13.
Radovanović, S., & Knežević, A. (2014). Romi u Srbiji (Popis stanovništva,
domaćinstava i stanova u 2011. u Republici Srbiji). Beograd: Republički zavod
za statistiku.
Stojanović, Z., & Kolarić, D. (2013). Nova rešenja u krivičnom zakoniku
Republike Srbije. Bezbednost, 3, 7-33.
Tripković, M. (2011). Ekspanzija mržnje: osnovna obeležja masovnih zločina
mržnje. Temida, 4, 37-54.
Law on Amendments to the Criminal Code of the Federation of Bosnia and
Herzegovina. Ofcial Gazette of the Federation of Bosnia and Herzegovina,
46/16.
Criminal Procedure Code. Ofcial Gazette of the Republic of Serbia, 72/2011,
101/2011, 121/2012, 32/2013, 45/2013, 55/2014.
Law on the Prohibition of Discrimination. Ofcial Gazette of the Republic of
Serbia, 22/2009.
Centar za prava manjina. (2016). Retrieved 2016, June 20, from: https://www.
mrc.org.rs/saopstenja/2010.html.
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Sarajevo, 8 November 2016
58
Neprimerena kazna za izazivanje rasne mržnje i netrpeljivosti u Jabuci. (2011,
June 29). Retrieved 2016, June 19, from: Regionalni centar za manjine: http://
www.minoritycentre.org/sh/actuals/neprimerena-kazna-za-izazivanje-rasne-
mr%C5%BEnje-i-netrpeljivosti-u-jabuci.
Saopštenje povodom presude u slučaju zičkog napada u Novom
Sadu. (2013, November 14). Retrieved 2016, July 6, from:
Komitet pravnika za ljudska prava: http://www.yucom.org.rs/rest.
hp?tip=vestgalerija&idSek=4&idSubSek=36&id=144&status=drugi.
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59
THE RELATIONSHIP BETWEEN HATE CRIMES AND INCITING
HATRED IN THE APPLICABLE CRIMINAL LEGISLATION OF
THE FEDERATION OF BOSNIA AND HERZEGOVINA
A PRACTICAL REVIEW
Maja Mirković
1
ABSTRACT
The impact of hate crimes is very often underestimated, especially in
transitional and post conict societies, such as in Bosnia and Herzegovina. These
incidents are multiple-faceted and send a strong message not only to the victim, but
also to the entire community. Bearing in mind the efforts in the process of creation
of intercultural dialogue and implementation of transitional justice in Bosnia and
Herzegovina, this issue has great signicance.
The main purpose of this paper is to analyse the close relationship between hate
crimes and crimes of inciting hatred in the criminal legislation of the Federation of
Bosnia and Herzegovina in the context of implementation of transitional justice.
In the process of writing this paper, following methods were used: historical,
theoretical and positive legal method, as well as the case study method.
Possible limitations of this research paper may refer to the case study part, due
to the lack of verdicts and case les in these cases.
The long-awaited amendments to the Criminal Code of the Federation of
Bosnia and Herzegovina denitely mean a step forward, and not only when it
comes to the repressive system of countering this type of criminal offenses.
Amendments to the Criminal Code of the Federation of Bosnia and
Herzegovina mean that the objectives and tasks set before Bosnia and Herzegovina
in its aspirations to become a member state of the European Union have nally
been met. However, the question that still remains unanswered is, how will these
amendments be implemented.
Until recently, the Criminal Code of the Federation of Bosnia and Herzegovina
did not regulate crimes motivated by hatred, which created a big problem in terms
of reporting them. This regularly led to the fact that this concept was misunderstood
by both citizens as the general public and the experts. One must bear in mind that
hate crimes, due to the lack of adequate legislation, were regularly tried within the
framework of criminal offense of inciting hatred, discord and intolerance. Although
these two legal concepts are very similar, still, there are a lot of differences between
them.
Keywords: hate crimes, inciting hate, transitional justice.
1
Maja Mirković is a holder of three LL.M. Degrees, in International Criminal Law, Public International
Law and Juvenile Delinquency, obtained at the Faculty of Law of University of Sarajevo. In addition,
she is also a student of MA Degree Programme in Criminal Justice at Faculty of Criminal Justice,
Criminology and Security Studies of University of Sarajevo. E-mail: maja_mirkovic@hotmail.co.uk
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1. INTERNATIONAL STANDARDS FOR PROTECTION OF HUMAN
RIGHTS IN THE CONTEXT OF COMBATTING HATE CRIMES
With its membership in the United Nations, Council of Europe, and Organization
for Security and Co-operation in Europe [OSCE], and its aspiration to become a
fully-edged member of the European Union, Bosnia and Herzegovina took on the
obligation to incorporate hate crimes provisions into its criminal legislation, and
take other relevant measures.
When hate crime is committed this inevitably leads to the violation of
fundamental human rights, in particular the right to dignity, freedom of thought,
conscious and religion. The Preamble of the Universal Declaration on Human
Rights
2
stipulates that the “recognition of the inherent dignity and of the equal and
inalienable rights of all members of the human family is the foundation of freedom,
justice and peace in the world”.
3
In addition, the European Convention for the
Protection of Human Rights and Fundamental Freedoms, which is directly applied
in Bosnia and Herzegovina [BiH], needs to be mentioned as the most important
document for the protection of human rights and freedoms in BiH.
4
However,
there are other international documents obligating the state to ght hate crimes,
in particular through criminal legislation, such as the International Convention on
Elimination of all Forms of Racial Discrimination
5
, and the International Covenant
on Civil and Political Rights.
6
It is important to mention the efforts of the OSCE Ofce for Democratic
Institutions and Human Rights [ODIHR]
7
, and the European Court for Human
Rights in Strasbourg [ECtHR], which took the stance in its rich case law that
member states of the Council of Europe must adequately regulate hate crimes, and
conduct an adequate investigation of bias-motivated crimes.
8
2
Universal Declaration of Human Rights was adopted and proclaimed by the United Nations General
Assembly on 10 December 1948 (Resolution 217 (III)).
3
The Universal Declaration of Human Rights Preamble further stipulates that “disregard and
contempt for human rights have resulted in barbarous acts which have outraged the conscience of
mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief
and freedom from fear and want has been proclaimed as the highest aspiration of the common people”.
4
Article II, Paragraph 2 of the Constitution of Bosnia and Herzegovina: “The rights and freedoms set
forth in the European Convention for the Protection of Human Rights and Fundamental Freedoms and
its Protocols shall apply directly in Bosnia and Herzegovina. These shall have priority over all other
law.”
5
International Convention on Elimination of all Forms of Racial Discrimination was adopted and
opened for ratication by the UN General Assembly Resolution 2106 A (XX) of 21 December 1965,
and it entered into force on 4 January 1969.
6
International Covenant on Civil and Political Rights was adopted by the UN General Assembly
Resolution (XXI) on 16 December 1966, and entered into force on 23 March 1976.
7
See: supra, p. 3.
8
Thus, in its case Šečić vs. Croatia, the European Court for Human Rights found that “...State
authorities have the additional duty to take all reasonable steps to unmask any racist motive and to
establish whether or not ethnic hatred or prejudice may have played a role in the events... Treating
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Finally, the European Union has given its contribution in this area through
numerous legal documents, such as the Framework Decision on combating certain
forms and expressions of racism and xenophobia by means of criminal law
9
,
clearly requesting the member states to “take the necessary measures to ensure that
racist and xenophobic motivation is considered an aggravating circumstance, or,
alternatively that such motivation may be taken into consideration by the courts in
the determination of the penalties.”
10
Considering the aspirations of BiH to become
a member of the EU, it is clear that following the above outlined path is the right
thing to do.
2. HATE CRIMES – GENERAL REMARKS
There is no consensus on the notion of hate crimes11 among the law-makers;
hence, the efforts of international organizations in this area have not resulted in a
globally accepted denition. This is partly due to the fact that cultural differences,
social norms and political interest play a signicant role in dening crime in general
and hate crime in particular (Boeckmann & Turpin-Petrosino, 2002, pp. 207-205).
In short, hate crimes are those offences that are motivated by bias based on ethnicity,
race, religious belief or some other status (OSCE Ofce for Democratic Institutions
and Human Rights [OSCE/ODIHR], 2010, p. 6).
Therefore, the OSCE participating countries uphold the concept of hate crimes
being crimes that are motivated by bias.
12
This denition gives two basic elements of hate crimes: the act that is already
prescribed as a crime in a criminal code and the bias/hatred motivation. The latter
element means that the perpetrator chose his/her victim on the basis of one of
the protected characteristics. A protected characteristic is a fundamental or main
characteristic shared by members of a group, such as race, religion, ethnicity,
language or sexual orientation. The victim can be one person, several persons
or the property associated with an individual or the group sharing the protected
characteristics (Lučić-Čatić & Bajrić, 2013, p. 12).
The perpetrators of hate crimes commit these offences on the basis of their
racially induced violence and brutality on an equal footing with cases that have no racist overtones
would be turning a blind eye to the specic nature of acts that are particularly destructive of fundamental
rights.” See the ECtHR judgment in the case of Šečić vs. Croatia of 31 May 2007, Application
No. 40116/02, available at http://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=003-
2012842-2123404&lename=003-2012842-2123404.pdf, accessed on 03 August 2016.
9
Framework Decision on combating certain forms and expressions of racism and xenophobia by
means of criminal law No. 2008/913/JHA of 28 November 2008, available at http://eur-lex.europa.eu/
legal-content/EN/TXT/?uri=uriserv%3Al33178, accessed on 11 August 2016.
10
Article 4 of the EU Council Framework Decision No. 2008/913/JHA.
11
Hate crimes and crimes motivated by hatred are referenced as synonyms in this paper.
12
See the Decision of the OSCE Council of Ministers No. 9/09 of 02 December 2009, available at
http://www.osce.org/cio/40695?download=true, accessed on 22 October 2016.
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own perception of what victims or certain property present. This may lead to hate
crimes being committed on the basis of the wrong assumption of the perpetrator
regarding the victim’s identity (Blažević & Vasić, 2016, p. 9). Very often the motive
of these criminal offences may comprise more than one protected characteristic;
for example, the perpetrators can be biased towards the victim because of his/her
ethnicity and also because of her/his religion (Blažević & Vasić, 2016, pp. 10-12).
Hate crimes send a message to the whole community and thus have more
impact on victims than “ordinary crimes” the message is sent that this community
does not have the right to be equal part of the society. Considering that Bosnia and
Herzegovina represents a society burdened with violent past and severe violations
of international humanitarian law and it is still in the process of catharsis and facing
its own past, it becomes clear why the adoption of appropriate legislation in terms
of the regulation of hate crimes is an imperative. It is expected that the increased
number of hate crimes can impact the widening of division and intolerance in the
BiH society, which hinders the initiation and maintaining of a dialogue and trust
between its citizens (Azinović, 2009, p. 20). Finally, these crimes may cause bigger
damage because “The immediate victim may experience greater psychological
injury and increased feelings of vulnerability because he or she is unable to change
the characteristic that made him or her a victim.” (OSCE/ODIHR, 2009, p. 20).
There are two general models on how hate crimes are regulated by law, as
follows: the rst pertains to regulating hate crimes as a substantive offence, while the
second model implies the existence of penalty enhancements, which are sometimes
referred to as “aggravating sentencing clauses” or “aggravating circumstances
clauses” (OSCE/ODIHR, 2009, p. 27). In Bosnia and Herzegovina, a combination
of the mentioned models is applied, and will be further discussed later in the text.
3. HATE CRIMES IN CRIMINAL LEGISLATION IN FEDERATION OF
BOSNIA I HERCEGOVINA
3.1. Criminal Legislation in Bosnia i Hercegovina – Background
Until recently, the criminal legislation in the Federation of Bosnia and
Herzegovina [FBiH] represented an exception when it comes to regulating hate
motives.
Amendments to Criminal Codes of Republika Srpska [CC RS]
13
and Brčko
District of Bosnia and Herzegovina [CC BDBiH],
14
were adopted in 2010 by
introducing a denition of hate to both codes and increasing the number of personal
characteristics protected by these codes. However, in 2013, legal novelties were
13
Criminal Code of Republika Srpska. Ofcial Gazette RS, No. 49/03, 108/04, 37/06, 70/06, 73/10,
1/12, and 67/13.
14
Criminal Code of Brčko District BiH. Ofcial Gazette of BDBiH, 10/03, 45/04, 06/05, 21/10,
52/11, and 33/13 – consolidated text of the law.
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introduced into the CC RS by introducing explicit denitions of a hate crime.
Thus, Article 147, Paragraph 25 stipulates that “Hate crime is an offence entirely
or partly perpetrated against a person for reasons of racial, national or ethnic origin,
language, religious beliefs, colour, sex, or sexual orientation, health or gender.”
Article 37, Paragraph 3 of the CC RS stipulates that “If a criminal offence was
perpetrated out of hatred as provided in Article 147, Paragraph 25 of this Code,
the court shall take it into consideration as an aggravating circumstance, unless
the hatred is aggravating form of that criminal offence”.
15
Conversely, Article
2, Paragraph 37 of the CC BDBiH denes hatred as “a motive for perpetration
of a criminal offence provided in this Code that is entirely or partly perpetrated
due to actual or assumed ethnic or national origin, language or script, religious
beliefs, race, colour, sex, sexual orientation, political or other afliation, social
origin, social status, age, health and other characteristics, or due to associating with
persons with such characteristics.” In addition, Article 49, Paragraph 2 stipulates
that “In cases when criminal offence was perpetrated out of hatred as provided
in Article 2 Paragraph 37 of this Code the court will take it into consideration as
an aggravating circumstance and fashion a more sever sentence unless the Code
provides for harsher sentence for the aggravating form of a criminal offence.”
16
The amendments adopted in RS and BDBiH were proposed also for the Criminal
Code of FBiH [CC FBiH]
17
in 2010, but were not adopted. In 2013 and 2014, two
initiatives were initiated for amending CC FBiH, which would have provided, inter
alia, the explicit denition of the term hate crime, and their commission sanctioned.
On both occasions, the proposed amendments were adopted by the House of
Representatives of the FBiH Parliament. However, the House of Peoples rejected
the proposed amendments to the CC FBiH in 2013, while in 2014, the session of the
House of Peoples to consider the new proposed amendments to the CC FBiH was
not even convened (Vasić, 2015, p. 9).
The necessary amendments to the CC FBiH were nally adopted on 23
February 2016 at the 8th Regular Session of the Parliament of FBiH.
18
15
In the CC RS, hate as a motive was also introduces as an element of crime of certain criminal
offences and based on that the punishment for First Degree Murder (Article 149), Grievous Bodily
Injury (Article 156), Aggravated Theft (Article 232), Aggravated Robbery (Article 233), Malicious
Mischief (Article 249), and Causing Public Danger (Article 402), if committed out of hatred.
16
Hate as a motive is introduced into CC BDBiH as an element of certain criminal offences,
including separate sanctions for the perpetrators of such offences, such as: Murder (Article 163),
Grievous Bodily Harm (Article 169), Rape (Article 200), Grand Larceny (Article 281), Robbery
(Article 282), Armed Robbery (Article 283), Malicious Mischief (Article 287) and Grave Offences
against General Safety of People and Property (Article 322), if motivated by hate.
17
Criminal Code of FBiH. Ofcial Gazette of FBiH, No. 36/03, 37/03, 21/04, 69/04, 18/05, 42/10,
42/11, 59/14, 76/14, 46/16.
18
See more: http://lgbti.ba/predstavnicki-dom-parlamenta-fbih-usvojio-izmjene-krivicnog-zakona-
fbih/ accessed on 22 October 2016.
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3.2. Hate as Aggravating Circumstance for All Crimes and Provisions
on Enhanced Punishment for Specic Hate-motivated Crimes in
Criminal Legislation of FBiH
The Law Amending the CC FBiH
19
nally provides for hate crime as “any
criminal offence committed for reasons of race, colour, religious belief, national
or ethnic origin, language, disability, sex, sexual orientation or gender. Such an
act shall be considered an aggravating circumstance unless this Code expressly
provides for a more severe punishment for the aggravated form of the crime
committed out of hatred.”
20
This way the general, explicit denition of hate crime
was introduced into the CC FBiH as any offence motivated by hatred or bias
towards a person or a group of persons with a protected characteristic. The FBiH
legislators opted for the same denition of hate crimes provided for in the CC
RS. It can also be noted that, as opposed to the solutions used in RS and BDBiH,
the FBiH legislator left out the novelty of the Article 49 dealing with general
rules on sentencing and instead, included this provision in Article 2 of the CC
FBiH Meaning of Terms Used in this Code. The law-maker obviously thought
sufcient the denition under Article 49, Paragraph 1 stipulating that the court
shall impose the punishment within the limits provided by law for that particular
offence, having in mind the purpose of punishment and taking into account all
the circumstances bearing on the level of punishment, in particular: the degree of
culpability, the motives for committing the offence, the degree of danger or injury
to person, property or item, the circumstances in which the offence was committed,
the past conduct of the offender, his personal situation and his conduct after the
commission of the criminal offence, as well as other circumstances related to the
offender.
The amendments to the CC FBiH introduced hate as a motive as the element
of the criminal offences of murder,
21
grievous bodily harm,
22
rape,
23
and malicious
mischief.
24
The introduction of the denition of hate crime led to a partial harmonization
of the CC FBiH and the provision of Article 2 of the Law on the Prohibition of
Discrimination of Bosnia and Herzegovina
25
[LPD BiH]. The LPD BiH stipulates
that the discrimination is “every different treatment including every exclusion,
limitation or preference based on real or assumed features towards any person or
19
The Law Amending the CC FBiH. Ofcial Gazette, 46/16.
20
Article 32, Paragraph 9 of the CC FBiH.
21
Article 166 CC FBiH.
22
Article 172 CC FBiH.
23
Article 203 CC FBiH.
24
Article 293 CC FBiH.
25
The Law on Prohibition of Discrimination of Bosnia and Herzegovina. Ofcial Gazette BiH,
59/05.
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group of persons on grounds of their race, skin colour, language, religion, ethnic
afliation, national or social origin, connection to a national minority, political or
any other persuasion, property, membership in trade union or any other association,
education, social status and sex, sexual expression or sexual orientation, and
every other circumstance with a purpose or a consequence to disable or endanger
recognition, enjoyment or realization, of rights and freedoms in all areas of public
life.”
26
However, the list of protected characteristics provided for in the denition
of hate crime is closed and does not contain numerous grounds that can be a
motive for the perpetration of a hate crime which are stipulated in the LPD BiH
as grounds of possible discrimination against a person, such as association with
a national minority, political or other belief, nancial situation, membership in a
union or other association, education, while the following stipulation “or other
characteristics or because of perceived association with persons that have one
of the listed characteristics” was left out. This phrase would encompass those
characteristics that are not listed in the code, enabling protection of the people
who could become victims of hate crimes because of some values they share with
a certain group. The CC RS has a similar solution and it is possible to expect that
such a denition is expanded and amended in the future.
27
3.3. Inciting Hatred as an Autonomous Crime in the Criminal Code of
FBiH
An autonomous criminal offence of inciting hatred and bias is stipulated in
Article 163 of the CC FBiH as the crime of Inciting National, Racial or Religious
26
It is very important to emphasize that the Proposed Law Amending the Law on Prohibition of
Discrimination BiH was adopted at the 21st session of the House of Peoples of the Parliamentary
Assembly of BiH. The Law, inter alia, expands the list of grounds on which a person can be discriminated
against. The Law was proposed by the Council of Ministers of BiH. For more information see:
https://www.parlament.ba/sadrzaj/vijesti/2010/default.aspx?id=66481&langTag=bs-BA&template_
id=5&pril=b&pageIndex=1, accessed on 11 August 2016. The text of the Proposed Law available at
https://www.parlament.ba/sadrzaj/zakonodavstvo/u_proceduri/default.aspx?id=62121&langTag=bs-
BA&pril=b, accessed on 11 August 2016.
27
According to Ljiljana Filipović, leaving space for prosecuting perpetrators of hate crimes for
attacking victims because of protected characteristics he or she shares with a group (or a perceived shared
characteristics), not explicitly proscribed by the Code and instead covered by “other characteristics”,
has criminal and political justication. However, this author believes that such approach can be a
source of legal uncertainty. A charge for a crime motivated by a bias or characteristic which is not
explicitly stipulated in the relevant legal provision, as well as the conviction for such a crime shall
also require a separate rationale by both the prosecutor and the court as to why that particular crime
constitutes a hate crime. In order to prevent arbitrariness, the opinion on whether a characteristic that
is not explicitly listed in the relevant provision as a motive for a crime still constitutes a hate crime
must be bases on an analysis of what that characteristic has in common with those explicitly protected
by the relevant legal provision. Therefore, it is necessary to dene the framework within which other
characteristics would be established based on explicitly stipulated protected characteristics which can
be the motive of the perpetrator for committing a crime. In determining this framework the starting
point could be the explicitly legally protected characteristics which determine the identity of a certain
person and based on which this person identies him/her self and identies him/her self with other
persons who share the same characteristic (Filipović, 2014: in Hodžić & Mehmedić, 2014, s. 66).
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66
Hatred, Discord or Hostility in Chapter XV of the CC FBiH Criminal Offences
against the Constitutional Order of the Federation of Bosnia and Herzegovina.
The underlying form of this crime is committed by any person who publicly
incites and inames national, racial or religious hatred, discord or hostility among
constituent peoples and others who live in the FBiH, punishable by three months to
three years of imprisonment.
Perpetrator of this crime can be any person.
Therefore, the act of perpetration itself is alternatively stipulated, as a: 1) public
incitement or as a 2) public inammation of national, racial or religious hatred,
discord or hostility. Incitement is the creating or causing hatred, discord or hostility
that have not existed previously, while inammation implies that some of those
feelings have already existed, either in a latent form or of lesser intensity, which
are then further developed, intensied or deepened (Tomić, 2007, p. 57). Hatred is
manifested in the willingness to inict some form of harm on another (Maljević &
Vujović, 2013, p. 35). Discord is reected in the separation, isolation and denial
of any solidarity (Bačić et al., 1978, p. 473). Hostility is a feeling expressed in
defensive and intolerant attitude of a national, racial or religious group of people
(Bačić et al., 1978, p. 473).
The prominent characteristic in the description of the crime is that of publicity,
which constitutes the element of the crime, i.e. for this crime to exist, there needs
to be the incitement or inammation of hatred, discord or hostility committed in
public, thus differentiating it from other crimes committed out of bias.
For criminal liability there needs to be intent, which includes the awareness
of undertaking an action which will publicly incite or iname national, racial or
religious hatred, discord or hostility (Tomić, 2007, p. 57)
Three months to three years of imprisonment is prescribed for this underlying
form of the crime.
Aggravated form of the crime is dened in Paragraph 2 of this Article, when
the underlying form is committed by employing duress and torture, jeopardizing
the safety of any person, exposing national, ethnic or religious symbols to mockery,
damaging other people’s belongings, desecrating monuments or graves.
For this aggravated from a punishment of one to eight years of imprisonment
is prescribed.
Another aggravated form of this crime is dened in the provision of Paragraph
3 and is committed by those committing the underlying form by abusing their ofce
or authority and the prescribed punishment is one to ten years of imprisonment.
The most serious form of this crime is provided for in Paragraph 4 and it is
committed by those who perpetrate the offence by employing duress and torture,
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67
jeopardizing the safety of any person, exposing national, ethnic or religious
symbols to mockery, damaging other people’s belongings, desecrating monuments
or graves, and when such actions are committed by abusing the ofce or authority
or if the offence results in riots, violence or any other serious consequence to the
co-existence of the constituent peoples and others who live in the Federation of
Bosnia and Herzegovina. All aggravating forms of the offence require the intent of
the perpetrator for criminal liability.
For the most serious form of the crime a punishment of one to ten years of
imprisonments is provided for.
Paragraph 5 provides for a special form of this crime, which exists when
committed by public denial or justication of genocide, crimes against humanity
or war crimes established by a legally binding decision of the International Court
of Justice, International Criminal Tribunal for the former Yugoslavia or a national
court and it shall be punished by imprisonment for a term of between three months
and three year.
3.4. Mutual Relationship between Hate Crimes and the Crime of Inciting
Hatred in the Criminal Legislation of FBiH
Based on the previously analysed provisions it can be concluded that the hate
crimes and crimes of inciting hatred are in fact very similar; however, there are
some notable differences.
The main difference has already been mentioned and is more than obvious.
The crime provided for in Article 163 represents an autonomous crime, while
the denition of hate crimes is of a general character and it pertains to any crime
provided for in the CC FBiH if motivated by hatred.
Another important difference is reected in the fact that incriminating
incitement or inammation of national, racial or religious hatred, discord or
hostility protects the constituent peoples and others living in the FBiH. Pursuant to
the Constitution of FBiH,
28
the constituent peoples are Bosniaks, Serbs and Croats.
Others, pursuant to Article 3 of the Law on the Protection of the Rights of National
Minorities in FBiH,
29
represent the part of the population, citizens of FBiH and
Bosnia and Herzegovina, who do not declare themselves as members of one of
the three constituent peoples, and is composed of the people of the same or similar
ethnic background, the same or similar tradition, customs, beliefs, languages,
culture and spirituality and close or related history and other characteristics. On the
other hand, with one general, explicit denition of hate crime the circle of others
is expanded (although the victims are most frequently the members of one of the
minority groups), and the list of protected characteristics is not exclusively limited
28
Constitution of FBiH. Ofcial Gazette of FBiH, 1/94.
29
Law on the Protection of the Rights of National Minorities in FBiH. Ofcial Gazette of FBiH,
56/08.
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68
to racial, national or religious background, but it encompasses a wider range of
grounds that can be a motive for a perpetrator.
The third difference is the requirement that the crime of inciting hatred, as
prescribed in the CC FBiH is committed in public. Although the majority of hate
crimes is committed in public, this is still not a necessary element for it to exist in
order for a crime to be treated as such, it is only required that it is motivated by hate
or prejudice.
Both models of legislation have their pros and cons. The advantages of the
rst one is easier detecting of hate crime as a separate crime because this way bias
is condemned as explicitly forbidden motive and thus it is easier to collect data on
these crimes; this way the expressive function of criminal law is fullled. However,
on the other hand, the application of this model brings certain challenges; it is
possible that a court lacks sufcient evidence to get a verdict for the underlying
crime if the existence of prejudice has not been proven, resulting in prosecutors
being unwilling to report a separate crime, if they believe that it would be harder
to prove (OSCE/ODIHR, 2009, p. 30). The advantages of the application of
the enhanced punishment model is easier integration of the enhancement of
punishment provisions into the existing punishment provisions, and the possibility
of application of these provisions on a large number of crimes where the inability
to prove facts pertaining to hate as an aggravating circumstance will not jeopardize
pronouncing convicting verdict for the underlying act. Its aw is that the court
decision to enhance punishment based on proven bias as a motive can be left out of
the public court le (OSCE/ODIHR, 2009, p. 31).
How and to what extent this combined application of the two models will meet
the needs of a democratic society and how the processing itself of these crimes
before courts in FBiH will go, remains to be seen, because the amendments to the
CC FBiH have only come into force. However, what is certain is that the lack of
denition of hate crime prevented processing certain incident evidently motivated
by hate, but, due to the shortcomings of the legislation at the time, they were not
processed. These cases will be discussed in more details in the following sections,
as well as the already processed inciting hatred crimes, and the aggravated forms of
certain crimes with hatred as the main element.
4. ISSUES IN PROCESSING HATE CRIMES IN FBIH
As already mentioned, one of the main problems in the past in processing hate
crimes was the lack of appropriate legislation, which led to many cases not being
classied as such.
As the rst example we can highlight the case of 24 September 2008, on the
occasion of opening an exhibition at the Queer Fest. Namely, a group of around
70 protesters gathered in front of the Fine Arts Academy in Sarajevo and violently
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69
interrupted the event shouting insults and throwing rocks on visitors. Despite a
signicant number of police ofcers and private security rm staff, eight persons
were injured. It is interesting that some of the attacks took place in neighbouring
streets or parts of the city that are a few kilometres away from the Academy itself.
Eight persons were arrested. An 18-year old, who was seen by witnesses attacking
two journalists, was accused of violent behaviour, pursuant to Article 362,
Paragraph 1 of the CC FBiH, in connection with preventing ofcial in executing
ofcial duty, pursuant to Article 358 of CC FBiH. The accused was sentenced to
one year imprisonment, suspended two years after plea agreement was reached.
Another 19-year old was also accused of violent behaviour pursuant to Article
362, Paragraph 1 of CC FBiH. He was pronounced guilty and sentenced to ve
months imprisonment, suspended two years. Bias as a motive was not included
in indictments in any of these cases (OSCE Mission to Bosnia and Herzegovina
[OSCE BiH], 2012, p. 37).
Another case that illustrates this happened in July 2013. Namely, a group of
youth, hooded not be recognized, attacked a gay man working in a bar known as a
place where LGBT people gather. Two of the attacker rst came to the bar, sat there
and arranging to meet somebody. Then they left and returned with a number of
friends and attacked the victim, asking him about his sexual orientation. Although
the attack was not serious, it did inict physical injuries on the victim who had to
seek medical help. The case was nally reported to the police who questioned the
victim and witnesses. However, according to the latest available information, the
investigation was still ongoing and had lasted already for three months without any
results (Vasić, 2013, p. 15).
In the third case, a fteen old Croat boy was beaten up in 2009 by a group of
underage Bosniaks. He was returning on his bike from a playground in a village in
FBiH. In his statement, he said that the attacker verbally assaulted him on ethnic
grounds, and then they physically attacked him with the obvious intention to hurt
him. The perpetrators were accused of inicting grievous bodily harm, without bias
being mentioned as a motive. In addition, the factual description of the crime given
by the prosecutor relates primarily to the manner in which the injury was inicted,
and it was recorded that it happened after “a verbal conict and pushing around
with the injured party“ (OSCE BiH, 2012, p. 28).
There are several reasons to believe that the prosecutors ofces in FBiH
avoided including bias as a motive in indictments in the past: primarily, this can be
the result of a wide-spread lack of understanding of the concept of hate crimes and
how such crimes can be recognised. This can further be explained with the lack of
training or the insufciently specialized training on the complexity of hate crimes
and incidents, as well as the gaps in legislation, which also restrict the role of the
police and prosecution to adequately conduct investigation and include bias as a
motive in indictments (OSCE BiH, 2012, p. 30).
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70
In this context, we need to recall the provision in Article 45 of the Criminal
Procedure Code FBiH [CPC FBiH]
30
that stipulates that the fundamental right and
duty of the prosecutor is discovering and prosecuting perpetrators of crimes. In
this context it is also worth noting that prosecutor is obliged and has the right to
undertake certain necessary measures as soon as he nds out that there are grounds
for suspicion that a crime has been committed for the purpose of discovering it
and conducting investigation, nding the suspect, managing and supervising
the investigation and managing the activities of the authorised persons for the
purpose of locating the suspect and collecting statements and evidence.
31
It is also
important to note that prosecutor has the right and the duty to request the state
bodies, companies, legal and physical persons to submit information.
The CPC FBiH provides for the possibility of changing a criminal charge;
namely, Article 295 provides that a verdict shall refer to the person that has been
indicted and to the offence contained in the conrmed indictment or the indictment
revised in the course of main trial. The same Article provides that the court shall
not be bound by the proposed legal qualication of the crime submitted by the
prosecutor. This enables the court to take bias into consideration as a motive, which
may result in an enhanced punishment.
5. INSTEAD OF CONCLUSION
After many years of attempts, the adoption of amendments to the CC FBiH,
which introduced explicit denition of hate crime completed the regulating of hate
crimes in FBiH: by stipulating hate as aggravating circumstance for any crime, by
stipulating hate as aggravating forms of certain crimes and by stipulating hate as an
independent crime.
If and to what extent the adoption of the above mentioned amendments will
result in a larger number of processed cases is a question that remains unanswered
for the time being. However, it can be concluded that the existing provision have
not been used in the best possible way, which led to bias not being taken into
consideration as an aggravating circumstance in sentencing in a large number of
cases.
It is also undisputable that, due to the close connection between hate crimes
and crimes of inciting hatred, there will be overlapping and potential dilemmas
regarding processing crimes, but reforming the repressive apparatus will not be
enough and it will be necessary to undertake certain other measures that contribute
to achieving this goal. Foremost, an in-depth training for judges, prosecutors,
police, and civil servants on the concept and the essence of hate crimes and on the
adequate application of penal provisions will be necessary, thus raising awareness
30
Criminal Procedure Code. Ofcial Gazette FBiH, 35/03, 37/03, 56/03, 78/04, 28/05, 55/06, 27/07,
53/07, 9/09, and 12/10.
31
Article 45 Paragraph 2, CPC FBiH.
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71
of these actors on the importance of recognizing and processing such crimes.
Considering the danger hate crimes represent for the BiH society, which is divided
not only in the administrative sense, but also ethnically, and which is in the process
of transitional justice, these issues become even more prominent. The training on
the most vulnerable categories of victims of hate crimes, special historic and social
factors that lead to such position seem crucial in order to understand hate crimes
and to recognize its causes and motives.
By adopting the long-awaited amendments to the CC FBiH a denite step
forward has been made not only with regards to the repressive countering of this
form of crime, but it also demonstrates a form of social condemnation of such
created illusion of the existence of privileged social group. It remains to be seen to
what extent and how these provisions will be applied.
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