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Conference Proceedings: Conference on Hate Crimes in South-East Europe,
Sarajevo, 8 November 2016
135
CRIMINALISTIC-OPERATIONAL AND PROCEDURAL ASPECTS
OF HATE CRIME INVESTIGATIONS
Kire Babanoski
1
Vesna Trajanovska
2
ABSTRACT
In the Republic of Macedonia, the concept of hate crime has still not been
precisely and sufciently elaborated and developed. However, there is great
interest in supporting contemporary criminal law trends in countering hate crime
with a view to ensuring protection for citizens and their property and with a view
to preventing its occurrence.
The subject of this paper is the criminalistic-operational and criminal procedural
(investigative) aspects and characteristics of detecting and solving hate crime
cases. With this aim in mind, the specic features of investigative and evidentiary
processes are presented, by elaborating upon the operational-tactical measures and
activities and investigative tools available to law enforcement bodies (primarily
the police and public prosecutors) in detecting hate crime cases. The operational
aspects are especially examined, such as presence of clues, designing possible
scenarios of the criminal event and planning the ensuing operations. In this respect,
there is a special importance attached to the manner of detecting and establishing
the motive, goal and intention of the perpetrator, how the victim has been chosen,
whether the victim belongs to a specic social group, these being the main aspects
proving the existence of the objective elements of the crime, by determining and
proving the interaction links between the perpetrator and the victim before and
during the perpetration of the crime.
In order to be efcient in detecting this type of crime, law enforcement
investigators need to be equipped with knowledge about the criminalistic
characteristics of the personality of the perpetrator and of the victim, the attendant
circumstances, the modus operandi and traces indicating a crime. Accordingly, the
process of detecting a crime case requires a multi - disciplinary approach, i.e. it
requires competence in criminal investigations and following procedural principles
and rules when undertaking operational activities, combined with rules of other
related sciences.
Keywords: hate crime, criminalistic aspects, criminal procedure aspects,
investigation, detection, evidence.
1
Kire Babanoski holds PhD in security sciences and is a Docent at the Faculty of Security Sciences,
MIT University Skopje. E-mail: kbabanoski@gmail.com
2
MSc. Vesna Trajanovska is a PhD candidate in the area of criminal procedure law and fellow at the
Faculty of Security Sciences, MIT University Skopje. E-mail: vesna.trajanovska@yahoo.com
Conference Proceedings: Conference on Hate Crimes in South-East Europe,
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1. INTRODUCTION
At this stage, the Criminal Code of the Republic of Macedonia does not
recognize hate or bias motivated crimes. This means that such crimes are not
separated as qualied forms of predicate crimes with envisaged stricter criminal
sanctions, and with singling out the motive as an aggravating circumstance in
meting out the punishment. The concept of hate crime started to be implemented
in the Macedonian criminal law following the novelty introduced in the Criminal
Code in 2009, when a general provision was added regarding the meting out of
the sentence, under paragraph 5 of Article 39, according to which in meting out
the sentence courts are obliged to take into consideration the established motives
of bias and discrimination based on the belonging of the victim to a certain social
group. As regards the use of the term of ‘hate’ in the Criminal Code of the Republic
of Macedonia, it can be seen that it is explicitly used with reference to the crime
of Causing national, racial and religious hatred, discord and intolerance (Article
319) and the crime of Approving or justifying of a genocide, crimes against
humanity or military crimes (Article 407-a), and it is implicitly used with respect
to the crime of Endangering the security (Article 144, paragraph 4), by making
reference to the belonging of the victim to a certain national, ethnic or racial group
or religion. In these crimes, hatred and bias motives are aggravating circumstances
warranting stricter criminal sanctions.
In line with contemporary trends in criminal law science and in the human
rights and freedoms protection concept, international organizations working in
this eld have issued recommendations to the Republic of Macedonia to adopt
effective measures for the prevention, establishment and sanctioning of hate
motivated crimes (Human Rights Council, 2014, p. 18). More specically,
this means ght against impunity of violence against marginalized persons
motivated by their ethnic and religious afliation and by their sexual orientation,
especially by raising the public awareness and the awareness of the police and
judicial authorities. Consequently, draft amendments and supplements to the
Criminal Code have been prepared relating to hate crimes. Hence, it is envisaged
to introduce a new paragraph, paragraph 23 to Article 122, by which “hate
crime” will be dened as a “crime against natural or legal persons and their
related property which is committed fully or partially on the grounds of a real
or presumed characteristic of the victim such as race, colour of skin, national or
ethnic origin, religion or religious conviction, mental or physical disability, gender
and gender identity, sexual orientation, political conviction, age and belonging to
a marginalized group.” According to the Ofce for Democratic Institutions and
Human Rights [OSCE/ODIHR] (2009, pp. 53-56) this new provision will help
strengthen and precisely dene the concept of bias motivated crimes, which has
already been envisaged under paragraph 5 of Article 39 of the Criminal Code.
The new draft paragraph 23 to Article 122 recognizes the concept of so-called
“combined motives”, i.e. acts that have been committed only in part with a bias
motive. Such acts will be considered as hate crimes as long as the bias motive has
Conference Proceedings: Conference on Hate Crimes in South-East Europe,
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been one of the motives i.e. reasons for such an act. As regards the explicit use
of the wording “real of perceived” characteristic, the crime will be classied as
a hate crime also in cases in which the perpetrator has mistakenly presumed that
the victim belongs to a certain protected group (OSCE/ODIHR, 2009, pp. 50-51).
There are certain deciencies established in respect of this provision, for which
the OSCE has presented its proposals and opinions, which however will not be
analyzed in detail in this paper. According to such proposals of the OSCE, there
should be a number of specic provisions introduced in the Criminal Code with a
view to making criminal sanctions stricter for specic crimes already sanctioned
under the Criminal Code, if such crimes have been committed with a bias motive.
The main subject of the paper is the review of criminalistic, operational -
tactical and procedural aspects of the detection, examination and solving of such
crimes and their specic features and differences in the context of methods of
detection of crimes in general, which law enforcement bodies usually apply.
2. CRIMINAL LAW CONCEPT OF HATE CRIMES
There are certain difculties in dening the concept of “hate” considering its
subjective nature. Hate crimes are qualied as (serious) forms of violation and
threatening of fundamental human rights and freedoms. They represent a very
complex social and criminal phenomenon, having a series of specic features that
differentiate them from other types of crime (Kambovski & Lazarova Trajkovska,
2012, p. 6). The rst difference relates to the motive of the perpetrator, this being a
subjective element, which adds a transcendental, i.e. gurative nature to this type of
crime. The next distinguishing feature relates to the stratied object of protection,
according to which whether a crime will be considered a hate crime depends on the
fact whether the perpetrator has a specic motive of hate or bias against the victim
on grounds of a characteristic of the victim i.e. on grounds of the victim’s belonging
to a certain social group.
The term “hate crime” can be dened in the wider criminological and in the
narrower criminal law terms (Kambovski & Lazarova Trajkovska, 2012, p. 7).
In the criminological context, this term covers all negative conduct of
individuals, which are motivated or have the purpose of inciting or aring up
hatred against individuals or groups of people on racial, ethnic, gender or other
grounds, i.e. characteristics that differentiate one social group from another. The
criminological denition is founded on the negative social consequences that hate
motivated acts have on relations in a society and their stability, regardless of the fact
whether the specic conduct in question, supported by such a motive or purpose,
has been explicitly envisaged as a crime under the law.
In criminal law terms, “hate crime” is an act explicitly envisaged under law as
a crime, motivated by hostility against the victim, as a person belonging to a certain
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social group, or against the social group itself. This is a crime of discrimination,
while the discrimination of the victim on racial, ethnic, gender or other grounds is
the motive or the purpose of the act of violence, dened as a crime under the law.
This would mean that at this stage we could speak about hate crime as a
criminological phenomenon only, since this type of crime has still not been
incriminated in the Criminal Code of the Republic of Macedonia. In respect of
the issue of use of a unied terminology, there are opposing views in criminal law
science about the use of the word “hate” for bias motivated crimes, on one hand
and about the complete replacement of the word “hate” with the word “bias” and of
the term “hate crime” with the term “bias motivated crime”, as a technically more
precise term, considering that the word “bias” has a much wider meaning compared
to the word “hate”.
The hate element of this type of crime has the aim or purpose of violating or
threatening fundamental human rights and freedoms, violating thus the equality
in the enjoyment of freedoms and rights, safety and public peace and order. These
are serious forms of violation of the fundamental postulates of a democratic state
governed by the rule of law - tolerance, rule of law, justice and non-discrimination
- which call into question functional social relations, social stability, security and
safety, and increase the degree of conict and social disorganization. The negative
consequences of these crimes on individual freedoms and rights fall on the
individual as a victim, or on a targeted group, other vulnerable groups, relations in
society as a whole, with hatred, intolerance and animosity transforming into more
grievous forms of violence.
In the context of the specic criminal law treatment of these crimes and in the
context of operational activities of law enforcement bodies, it should be underlined
that activities of detection need to be focused on nding evidence that conrms
the presence of hatred and of discriminatory grounds, and on establishing such
a motive as a subjective feature of the crime. Bias motivated crimes occur when
the perpetrator intentionally chooses his/her victim on grounds of one or several
protected characteristics and when such a selection of the victim can be proven
by given statements, written texts, images, objects, actions, expressions of hatred,
animosity, prejudice, rage or other evidence of bias. On the other hand, when there
is no evidence of intentional targeting, the fact that the victim possesses a protected
characteristic does not sufce in order to establish a hate crime. However, in every
case of a perpetrated crime against persons possessing protected characteristics,
competent authorities are obliged to undertake all reasonably justiable measures
to investigate whether the above referred to elements are present and whether the
specic crime in question is a “hate crime”.
The next parts of this paper offer a review of criminalistic and procedural
aspects of operational-tactical measures and activities and investigative activities
undertaken to detect, examine and solve criminal cases having elements of hate
and bias.
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3. DETECTION OF HATE CRIMES
Activities to detect features and evidence of hate crimes by law enforcement
bodies start with law enforcement bodies learning about the planning, inciting or
existence of such type of crime. There are several methods that authorized ofcial
persons can employ to gather preliminary operational information about such
criminal activities (Џуклески, 2009). In this respect, it would not be useful to
make classication of such activities, because according to the manner in which
they are implemented and their criminalistic essence most of them overlap or
supplement each other and as stated earlier such crimes can be directed against
persons and against the property. In the practice of criminalistics, when learning
that a crime has been committed which has elements of hatred and bias, it is very
important to have good cooperation with citizens, since they are the greatest
source of information, and because they have a civic and moral duty to give any
information about any criminal activity. In this regard, criminal intelligence is of
course of great importance as well (Dzukleski, 2005) and it is pursued by working
with informants, collaborators of justice, informant links, undercover agents and
similar. Police operational activities usually produce good results, while the
best way of detecting and preventing such crimes are the so-called in agranti
situations, when the perpetrator is caught in the act of committing a crime. The
process of acquiring information about the planning of such crimes is difcult,
because violent crimes, as a rule occur as incidents, i.e. they are sudden violent
infringements of freedoms and rights, motivated by animosity, prejudice or bias
against the victim belonging to a certain social group or against the group itself.
Hence, their perpetration in most of the cases is not preceded by careful planning.
After such crimes have been reported, law enforcement bodies, especially the
police, need to focus their activities on nding the perpetrator, i.e. on preventing
the perpetrator or the accomplice from hiding or absconding, while also focusing
on detecting and securing traces of the crime and objects that can serve as evidence
of the crime and of the motive, then evidence of the intentional selection of the
victim and of the discriminatory ground, which is the reason for the perpetration
of the crime. The last mentioned evidence can serve in the later proceedings for
purposes of qualifying the crime as a more serious form of a predicate crime or
as an aggravating circumstance in meting out the criminal sanction. The activities
of the police, the public prosecutor and of the judge in the preliminary criminal
proceedings should be aimed at nding clues and material evidence that prove the
link between the specic features of the group to which the victim belongs and the
perpetrated crime and that prove the discriminatory grounds, the bias and hatred
as a motive, i.e. the reason (or one of the reasons) for the perpetration of the crime.
The manner according to which the perpetrator has chosen his/her victim and
whether the perpetrator knew at the time of perpetration of the crime that the victim
belongs to a certain social group needs to be examined very closely in the course
of the investigation. Clues of any type that can occur and which are to be searched
for are the motive and will of the perpetrator to commit the crime, the manner
Conference Proceedings: Conference on Hate Crimes in South-East Europe,
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in which the crime has been committed (full of hatred, gross, full of animosity,
violent, aggressive, ruthless manner of perpetration), previous relationships
between the perpetrator and the victim (disrupted relationship and animosity on
various grounds of belonging to a certain social group), the specic nature of
the object of the criminal act (desecration of religious facilities, monuments and
similar), means used to perpetrate the crime (use of “demonstrative” means), the
conduct of the perpetrator before, during and after the perpetration of the crime
(his/her statements, instances of hate speech, inciting hate, discord and intolerance,
euphoric public appearances), etc.
The next stage of activities to be undertaken by law enforcement bodies,
primarily by the police, is the stage of planning criminalistic -operational and
tactical activities (Angelski, 1993). These are activities to clarify the reported
crime in question, and to make an analysis of the facts of the case, by applying
principles of being specic, case by case oriented and dynamic in the planning.
The purpose of the planning is to ensure objectivity, economy of time, forces and
resources and being thorough in detecting and managing evidence, by making a
precise and detailed analysis of the factual situation, designing possible scenarios
of what exactly happened and making prognosis about the course of events in the
future. The analysis of the facts of the case, as the initial stage of the criminalistic
chain of thought, means full examination of the facts that are directly or indirectly
linked with the hate crime at hand and all its elements. This is the stage when
answers are to be looked for to the nine basic (“golden”) criminalistic questions
linked to the objective features (what, when, where, how and with what) and to
the subjective elements of the crime (with whom, why, against whom, and who is
the perpetrator). The main goal to be reached by answering these questions is to
clarify all facts of the crime and about the perpetrator, if he/she is known and if he/
she is still not known these questions serve the purpose of nding the perpetrator.
From the operational - tactical viewpoint, it is especially important to discover
and clarify the motive of the perpetrator to commit the crime, because it is exactly
the motive, the intention and the goal that make the specic features of the crime,
according to which the crime is qualied as a hate crime. The basic question to be
answered in the preliminary stage of detection and recognizing that it is a matter
of a hate crime is the following: has the crime been committed because of the
belonging of the victim to a group, which possesses protected characteristics
as set forth in law? In fact, it is necessary to establish whether there is a cause
and effective link between such characteristics and the act of the perpetrator, i.e.
whether such characteristics have had a decisive inuence on the decision of
the perpetrator to commit the crime. Furthermore, based on detected facts and
established circumstances, relevant law enforcement bodies design criminalistic
scenarios involving all elements relevant for the criminal event, which are based
on all information of criminalistic value available at the time the scenarios are
designed. In order to come to the truth, operatives need to undertake appropriate
activities to verify the possible criminalistic scenarios. In designing criminalistic
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scenarios, operatives should apply at the same time criminal proling in all its
types, in order to determine the prole of the possible perpetrator of the crime, to
establish a group of suspected persons and nally to nd the perpetrator, based on
available and detected information about the event.
4. CRIMINALISTIC CHARACTERISTICS OF HATE CRIMES
According to Vodinelić (1985) the manner the crime has been perpetrated, as
the rst criminalistic characteristic, consists of and conditions the consistent pattern
of operational and evidence information about the occurrence of the crime and as
such, this element is necessary for the detection of the crime and of the perpetrator.
In the case of hate crimes, the manner in which the crime has been perpetrated is
of special importance because it could lead directly to the motive, will, intention
and goal of the perpetrator. The specic manner of perpetration which derives
from hatred, bias and rage that the perpetrator has, shows the specic form of
his/her criminal activities pursued in order to practically full his/her intentions.
In this respect, the perpetrator has been harbouring such sentiments prior or at
the moment of perpetration of the crime, and are result of some of the protected
characteristic on the grounds of which the hate crime has been committed.
The manner of perpetration (modus operandi) of hate crimes is a complex
system covering activities of preparation for and committing the crime, then the
immediate perpetrator and activities for covering up the committed crime. The
modus operandi is determined by external conditions and factors, as well as by
the psychological and other character features of the perpetrator, especially his/
her already acquired experience, age, degree of education, and other qualications
he/she possesses, which could be linked to the use of an appropriate arms, means
or auxiliary objects in the given time and spatial conditions (Аlеksić, Škulić, &
Žarković, 2004, pp. 197-198). All these elements linked to the modus operandi
are also conditioned by the fact whether the hate crime is directed against a person
or against a facility or property linked to the victim, i.e. whether it is a matter of
a violent offense, offence against the property, etc. Considering that the modus
operandi is part of the proving process, and represents an important evidentiary
fact, it has a decisive signicance from the criminalistic operational viewpoint,
since it makes the basis for designing possible scenarios, having at the same time
an important impact on the direction, which the entire criminal procedure will take
(Belkin, 1988, p. 175). In general terms, the main elements of hate crimes include
violence against the victim. In the widest sense of the word, violence implies
negative impact on the basic human needs, then violation of and threats against
fundamental rights and freedoms, i.e. preventing or raising obstacles to their
exercise and a threat of use of violence (Kambovski & Lazarova Trajkovska, 2012,
p. 9). In this context, the division into physical and psychological violence is of
great importance. Physical violence is an act of the perpetrator causing destruction,
injury or damage to the object of violence in the form of death, injury (murder,
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bodily injury), violent infringement upon freedoms and rights of other persons
(rape, unlawful deprivation of freedom) or destruction or damaging material
goods (damaging objects, destruction of public installations). The consequences
of physical violence take the form of visible changes of the objective reality
(death, bodily injury, etc.). Physiological (emotional) violence takes the form
of a threat, intimidation, ill-treatment, blackmail, offending, humiliating, scorn,
blaming or another action that causes psychological suffering of another person,
which could escalate into a mental illness or psychological state of fear, insecurity,
losing self-respect and losing the ability to independently adopt decisions and act,
dependency, which could become a relationship of slavery with the perpetrator
or a similar psychological state of the victim of violence. The consequences of
psychological violence most often are not visible, despite the fact that they represent
a serious damage to the psychological and emotional state of the victim, while
acts of abuse, offense, humiliating and similar acts usually mark the beginning
of perpetration of serious forms of physical violence. Often times physical and
physiological violence are combined into a single act of violence (this is the case
of a rape: threat, actual use of physical force to overcome the resistance of the
victim, etc.) In addition, physical violence against property could become a form
of psychological violence against the owner of the property (for example, setting
someone’s car on re to intimidate the owner). The violence can also be aimed at
causing a certain consequence, which in fact is the ultimate goal of the perpetrator
(murder, injury, etc.) or it can be a means of reaching some other specic goal
(robbery, rape, etc.). In addition to murder and bodily injury, general forms of
violent infringement of freedoms and rights and equal exercise of such rights in
the context of hate crimes are: sexual violence, which covers all forms of sexual
harassment and duress, vandalism (destruction of objects), hooliganism (violent
conduct at sport matches, rallies and other public events), xenophobia (violence
against foreigners), abuse (bullying, intentional and continual iniction of pain
and suffering upon another person), harassment in the work place (mobbing, work
abuse, psychological and physical abuse and humiliation of another person with
a view to damaging the reputation, dignity and integrity all over to removing that
person from the work place).
The most often types of hate and bias motivated crime in the last several
years in the Republic of Macedonia (Stojanovski, Iseni & Bogoevski, 2015)
have been: attack, possession and use of illegal arms, damage to property,
vandalism, threat, and violence. The incidents registered by the non-governmental
sector (there are no ofcial state statistics on these crimes) are related to crimes
sanctioned under the Criminal Code. Most of the registered incidents involve
bodily injury, violence, damage to property, threatening the security, participation
in ghts, inciting hatred, discord, and intolerance on national, racial, religious,
or other discriminatory ground, endangerment with a dangerous object in ghts
or altercation, attack against an ofcial person in the performance of security
duties, desecration of graves. Very often, the committed hate crimes that have
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been examined and registered by the Helsinki Committee for Human Rights of
the Republic of Macedonia are incidents in which the activities undertaken by the
perpetrators can qualify as two or more of the above referred to crimes.
The modus operandi could take the form of encouraging the perpetration of
a hate crime. According to Article 23 of the Criminal Code of the Republic of
Macedonia, “a person that instigates, with intent, another to committing a crime
shall be punished as if he had perpetrated the crime himself.” Hence, the instigator
undertakes only activities to instil awareness and will upon another person so that
the person perpetrates some of the referred to crimes, which have constitutive
elements amounting to hate crime. In this respect, the instigator has no contact
with the victim, or with the means used to commit the crime. Therefore, material
traces linked to the crime itself cannot be looked for with the instigator; the only
evidence that could be looked for in this context would be evidence that proves that
there has been communication between the instigator and the instigated person.
The attendant circumstances of hate crimes are their important characteristics
(second in the sequence), because they help understand, clarify and solve the
criminal case. The attendant circumstances cover the entire situation of the
committed crime, i.e. all circumstances under which the crime has been committed,
such as territory, the climate, demographic and other specic features, as well as
all other circumstances and conditions at the scene of the crime and at the time of
the crime. The entirety of conditions which would support or would dismiss the
crime are covered by the attendant circumstances as a characteristic of the crime,
which is described in detail when making a report in the course of the investigation
of the scene of the crime.
According to information in hate crime cases examined by the Helsinki
Committee for Human Rights of the Republic of Macedonia (Stojanovski, Iseni
& Bogoevski, 2015) hate crimes usually occur in public places. Large number of
incidents have happened on busses, near bus stops, in schoolyards, near schools
(during or after classes) or against local ofces of political parties. A large number
of hate crimes have been committed as revenge or as a punishment for a previous
incident, both by Macedonian and by Albanian young people. A very small number
of incidents have been registered in the eastern part of the country. This perhaps is
owed to the ethnic composition of the country, but a contributing factor could be
the low rate of reporting hate crimes or lack of public awareness about hate crimes
and about bias motivation. The most affected groups of the population are young
people, then LGBTI people, which is owed to the fact that sexual orientation and
gender identity are not well elaborated i.e. known as grounds for committing hate
crimes.
The third characteristic of the crime are of course the traces of the crime. As
a rule, the perpetration of a crime leaves traces, which can be found on the scene
of the crime, then traces of the perpetrator and of course of the victim, which
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further determine the criminal investigation with a view to proving the crime.
Criminalistics considers that a trace of a crime (Vodinelić, 1985, p. 153) is any
visible or invisible to the naked aye material change that has occurred on the
scene of the crime, on the victim or the perpetrator relating to or in a situation
of a crime being committed. In a delicate and complex procedure of establishing
the material truth about hate crimes, traces are of great importance because of
their strict objectivity, as opposed to the subjective nature of personal statements.
Namely, statements of the indicted person and of witnesses are always featured
with a high degree of subjectivity and are dependent on the psychological state of
persons, which could result in modication of the real event in their statements.
However, traces or “silent witnesses”, as criminalists call them, despite not telling
the whole truth, they do tell nothing but the truth, as the famous French criminalist
Locard has said.
In the context of traces, it is important to underline that their value in the
criminal procedure depends on their ability to solve the crime and to detect the
perpetrator. In order that traces could be used for these purposes, they need to be
linked to the crime, perpetrator, the victim and especially to the motive of hatred
or bias of the perpetrator. Traces found on the scene of perpetration of violent
crimes can serve to prove that a crime has been committed, can prove the place
where the crime has occurred, the manner of perpetration and they can indicate
and help establish the identity of the perpetrator. In respect of the victim, traces
help establishes the manner in which the violence occurred, while traces of the
contacts between the perpetrator and the victim help establish the manner in which
a crime has been perpetrated.
One of the important elements of the system of criminalistic characteristics
of crimes are non-material, “ideal” traces of the crime (Angeleski, 1993, p. 122)
and these are the imprinted events in the consciousness of the subject, i.e. the
statements of the perpetrator of the crime, his/her abetters and the statements
of the victim of the crime, as well as statements of other witnesses. All these
statements help establish the facts of the case, why exactly that victim has been
chosen, the intention, the goal and motive of the perpetrator, helping to establish
as well whether the perpetrator has harboured feelings of rage, hatred, bias, while
shedding light on the entire event.
The entirety of features of the character of the perpetrator is especially
important criminalistic characteristic of hate crimes. Knowing and studying the
character of the perpetrator (Аlеksić, Škulić, & Žarković, 2004, pp. 173-174)
is necessary for etiologic reasons, for the correct application of the principle of
individualization in meting out the criminal sanction and the accomplishment of
the correctional goal of the sanction. The studying of the character of perpetrators
of these crimes should be done in all stages of the criminal procedure, because the
personality, as it is well known, changes constantly and at certain stages of the
criminal procedure or at a stage of execution of the criminal sanction it can undergo
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important changes in terms of attitude, opinions and views of the committed crime
and the victim. From the criminalistic - operational aspect, a very careful approach
should be applied to examining the character of the perpetrator, his/her knowledge,
skills, methods of work in committing and covering up the crime, his/her habits,
views, character features, prejudices, bias, instances of aggressive conduct in the
past, life style and psychological state, with a view to developing the best suited
methods to detect, prove, resolve and prevent future cases of hate crime.
Certain persons in society have destructive, aggressive, and violent conduct
and the causes for such conduct should be looked for in the persons themselves.
The development of the person depends on features inherited from the parents
(physical and character features), the environment in which the person develops
(family, upbringing, emotional stability, etc.), material conditions and social
security, external factors (the company the person keeps, deviant incidents and
similar), mass media, the leisure time of the person, education, intelligence,
character, temperament, emotions, etc. If such factors have a negative inuence,
the person will be inclined to have negative, asocial, criminal conduct. Some
features of the perpetrator, primarily the psychological features, and the concrete
psycho- social condition of the person at the moment of perpetration of the crime,
can be recognized based on the manner and means employed for perpetration of the
crime. Therefore, from the criminal law and criminalistic aspect, all that a person
does or fails to do is the direct merit or deciency of the personal psychological
status and the specic life setting the person has found himself/herself.
By perpetrating some of the hate crimes, the perpetrator sends a powerful
message to a certain group that its members are not wanted and are undesired and
that they can expect similar violent attacks in the future. Thus, the perpetrator
wants to instil fear, spread panic and insecurity among the members of the
concerned group, so they fear him/her and renounce their belonging to the group.
These characteristics of ontological nature, differentiate hate crimes from other
crimes, and are therefore sometimes called “message crimes”.
Hatred as a subjective characteristic of the perpetrator, which has prompted
him/her to commit the crime, in the general sense, is dened as a sense of
repulsiveness towards a person or an object or as “deep, lasting and strong
sentiment which produces animosity, anger and hostility against a person,
group or an object.“ Hence, hatred is a subjective element, motive, impulse to
perpetrate violence against an individual or group of persons on grounds of their
being different, i.e. on grounds of their belonging to a certain national, ethnic,
religious, racial, social or other group. In the case of hate crimes the perpetrator
acts having a specic motive, which is the specic subjective element of guilt or a
motive, which enhances the degree of guilt. The crime of the perpetrator is aimed
at inciting hatred against another person or group of persons on various grounds,
being at the same time a goal in itself for the crime of the perpetrator. Hatred is a
negative feeling of animosity, aversion, repulsiveness, or denial of another person,
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based on prejudices relating to any differences between people and social groups,
which grows into a strong aggressive internal impulse to violate the freedoms
and rights of others because they belong to a certain social group. As different
from the general feeling of hatred which can be behind numerous violent crimes
(murder, bodily injury, etc. which are often committed because of hatred), in the
case of “hate crimes” it is a matter of an aggressive feeling of animosity against
the victim, which results in a certain prejudice, belief or attitude of the perpetrator
of the crime that on its part has a wider social relevance.
The perpetrators hatred can be linked to different reasons - indignation,
jealousy, position of animosity towards an entire group, etc. As a negative
emotional state, it can be directed against a group, but not against the individual
who is a random or a selected victim of the crime. Hate crime can also occur when
the perpetrator perhaps has feeling of compassion and pity towards the victim, or
has no feelings at all, because he/she does not know the victim, yet the perpetrator
is not able to overcome the feeling of hatred against the group to which the victim
belongs. Therefore, the word “hatred” is often times interchanged with “bias”, as
its synonym (OSCE/ODIHR, 2009). The term “bias” has a wider meaning than
the term “hate” and means an attitude towards another person, which is based on
some form of prejudice about the characteristics of the person as a member of a
certain group (bias crime, bias-motivated crime).
The examination of the character of the victim of a hate crime is the task of
the youngest branch of criminology and criminalistics - victimology, the basis of
which is examination of the personality of the victim of the crime (Milutinović,
1981, p. 364). In the process of detecting and solving the hate crime, the victim is
the rst source of information who gives clues about the manner of perpetration
of the crime, the attendant circumstances, the characteristics of the perpetrator,
the previous relationship with the perpetrator and the motive. Such information is
gathered by comprehensive research of the individual features of the victim, the
victim’s belonging to a certain social group and his/her victimological (eventually
contributing) conduct. The victim provides the most important information about
the course of the event, the appearance of the perpetrator(s), their behaviour at the
scene of the crime, into which direction they were headed after the event, etc.
The specic feature of hate crimes, which differentiates them from the rest of
the crimes is the selection of the victim because the victim belongs to a certain social
group or instrumentalizing the victim as a means to accomplish a further reaching
goal, i.e. by choosing a certain victim as a representative of a group a message is
sent to the entire group to which the victim belongs. The goal the perpetrator wants
to achieve is to damage and violate not only the immediate victim, but also the
group to which the individual victim belongs. In this respect, the consequences for
the group are mainly of psychological nature, such as collective indignation, rage,
fear, intimidation, sense of injustice, and humiliation and similar. However, it is
likely that hate crime can also cause more grievous forms of intolerance, discord,
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conict, dispute, collective violence, revenge, even armed conict, which can all
produce irreparable damage to the entire society.
5. TACTICS OF COLLECTING EVIDENCE MATERIAL FOR PURPOSES
OF DETECTION, CLARIFYING AND SOLVING CRIMES
Criminalistic operational activities of law enforcement bodies (Аlеksić,
Škulić, & Žarković, 2004, p. 216), primarily those of the police, representing a
system of (non)procedural criminalistic methods and means (criminalistic control,
criminalistic processing), are pursued with a view to detecting hate crimes,
collecting information about the perpetrator, about his/her location, his/her links
with the victim, nding and securing objects which potentially carry evidence
material. The start of operational activities does not depend on the fullment of any
formal conditions. Instead, operational activities are undertaken upon the initiative
of the police or upon initiative of other institutions. The grounds for undertaking
such activities are the reasonable grounds for suspicion that a hate crime has been
committed, which is prosecuted ex ofcio. The operational activities undertaken
have two basic characteristics: the rst characteristics is that such activities are
condential, because such activities must always be pursued in line with the
principle of keeping professional secrets, and the second characteristic is related to
the limited number of entities that implement operational criminalistic activities,
meaning the police.
Criminalistic control (Dzukleski, 2005, p. 13) as a system of organized and
planed operational tactical measures is undertaken with respect to this type
of crimes in order to prevent events that incite, start or encourage intolerance,
discord, aring up a situation on grounds of discriminatory elements, preventing as
well the reasons and consequences of such events. Such activities are undertaken
whenever there is a general suspicion, i.e. general circumstantial evidence. Such
preventive activities by the criminal police consists mainly of measures aimed at
preventing the planning and perpetration of crimes by those persons for whom
there may be prognosis that they will engage in criminal activities based on their
activities relating to hate speech, aring up of hatred, animosity, intolerance and
discrimination. The specic activities consist of collecting reports and information
that indicate a pre-criminal situation (organization, encouragement, calls for,
preparation, and similar.)
In the context of general preventive work of the police, Articles 91 and 92 of
the Rulebook on the Manner of Performance of Police Duties envisage that with a
view to preventing the perpetration of crimes and misdemeanours, police ofcers
undertake planned and organized measures to establish the reasons, which give
rise to criminal and asocial conduct. In this regard, the phenomenological and
manifest forms of criminal conduct are considered by their continual monitoring
and analyzing, with a view to appropriately and effectively focusing the preventive
activities. Considering the fact that there are specically designed preventive
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activities depending on the object of protection (prevention of murders and violent
crimes, property crime, economic crime, juvenile delinquency, etc.), and in light
of the specic features of hate crimes and their bias motive, after such crimes
have been incriminated in the Criminal Code, there should be specic preventive
activities prescribed for this type of crimes, as well.
Criminalistic processing (Koteski, 2010) as planned and focused operational
activity, which starts with a certain hate or bias related criminal event or several
events by collecting facts and information of evidentiary value, establishes whether
there is a link between the suspect, the criminal event and the victim and whether
the presumed causal link can be proven. If it starts with a specic person and not
with an already known event, criminalistic processing has the goal of establishing
whether the criminal activities of the person can be linked with or qualied as a
hate crime and if there is such a link then facts and information are collected in this
respect, i.e. the causal link is proven in criminalistic terms. Criminal processing
consists of operational-tactical measures and investigative activities, which are
applied after reasonable suspicions have been established that a certain person has
committed the crime and a detailed investigation has started in order to collect
evidence that will prove the guilt of the suspected person or which will exonerate
the person as a suspect for the crime if the evidence proves so.
Operational – tactical measures (Angeleski, 2007, p. 12) as operational (non-
procedural) activities or entire operations (of criminalistic control and criminalistic
processing) are undertaken in the process of detecting and proving hate crimes
in order to clarify the event, to detect and process holders (signals, sources) of
criminalistic - operational information and their contents (i.e. the form, quality
and other characteristics of the information itself), while according to the content
and signicance for the detection and prevention of such events, these measures
are of repressive and preventive character. By applying them police ofcers learn
information about the preparation, planning, or perpetration of a certain criminal
activity. Thus, these measures make the essential work of the police in terms of
repression of this type of crime, as well as in terms of detecting and preventing
on-going or planned crimes, detecting and depriving of freedom the perpetrators,
nding and securing the traces and objects used for the perpetration of the crime,
which can serve as evidence, and collecting notications and information that
could be of use for a successful pursuance of the further criminal proceedings.
Such measures need to be focused on the establishment of the circumstances under
which the criminal activity took place, the motive for the crime and the reasons,
conditions and causes that have had inuence on the course of the event. Depending
on the type of crime, i.e. whether it is a violent crime, murder, sexual, property or
other type of crime, there are be different operational - tactical measures applied
by operatives in solving the cases. The wide range of measures the police has
available at this stage cover: collection of information from citizens, examining
the criminal records, ambush, raid, blockade, use of service dogs, polygraph
tests, search, etc. The detailed rules on their application are set forth in laws and
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secondary legislation in this area: the Law on the Police, the Rulebook on the
Manner of Performance of Police Duties, and the Law on Criminal Procedure and
similar.
Judicial instruments seen as a system of investigative (procedural) activities
the main purpose of which is to establish the truth in a criminal procedure instituted
against any crime are also used in the course of proving hate crimes. Investigative
activities undertaken by the police after receiving a written order from a public
prosecutor in the investigative procedure, in line with the Law on Criminal
Procedure, are the following: search, provisional securing and impounding objects
or property, examination of the suspect, examination of witnesses, use of expert
witnesses, examination of the crime scene and reconstruction of the criminal
event, and application of special investigative measures. All these measures help
establish facts, information and evidence that prove (or disprove) a hate crime
and help detect the perpetrator. Traces and objects found and which contain
criminalistic information are secured, stored and can be used in a strictly dened
procedure in line with criminalistic –investigation principles and standards and are
evidence material used in criminal proceedings.
In light of the above stated, in detecting and proving crimes of different
types, law enforcement bodies, primarily the police, need to focus their detection
activities on nding evidence that proves the existence of hate or bias as a motive
for the perpetration of the crime. The reason for this is that many classical crimes
can be perpetrated as a result of hatred, bias, animosity etc., and if operatives
fail to examine the motive of the perpetrator then the consequence is that such
crimes will not be recognized as hate crimes, and they will not be registered and
qualied as hate crimes, and the perpetrator will not be ordered an appropriately
stricter criminal punishment. Another specic feature is that in the processing
of these crimes, i.e. in drafting the indictment, especially when elaborating
the subjective side of the crime, the public prosecutor should especially single
out the motive of hatred that has led the perpetrator to commit the crime. The
existence of hatred, rage, indignation, animosity, bias and other characteristics of
the psychological state of the perpetrator need to be corroborated with evidence
collected in the that far investigation and which relates to the perpetrator (his/her
life, personality, previous crimes, manner of conduct, how he/she has chosen the
victim, etc), as well as to the crime (manner of perpetration, means by which the
crime has been perpetrated, traces, the attendant circumstances) and to the victim
(protected characteristics, belonging to a certain social group, (non)existence of
links with the perpetrator, contributing conduct, etc.) At the end of the criminal
proceedings, after the completion of all envisaged procedural activities, taking into
consideration established facts and circumstances, the judge adopts an appropriate
lawful and just judgment, by which the crime is comprehensively claried, solved,
and completed.
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6. CONCLUSION
Every crime may, but it does not have to be a hate crime. It all depends
whether hatred, bias or discrimination of the victim on the grounds of the victim’s
belonging to a certain social group are the underlying causes of the crime. Hence,
the direct object of the crime is a person or property that is violated by a certain
crime. However, the hate crime is also aimed against another important indirectly
linked element and that is the integrity, dignity and other values of the social group
to which the victim belongs and the values of which are the indirect object of
the violation. In addition to having a direct victim, such crimes always have also
an indirect victim, whose social status, interests, freedoms and rights have been
violated or threatened and that is the social group to which the direct victim of the
crime belongs.
As stated earlier in the section relating to the criminal law concept of hate
crimes, in the Republic of Macedonia hate crimes have still not been incriminated
as hate crimes, because the Criminal Code does not qualify them as such. The
initiatives and debates organized under the inuence of contemporary criminal law
developments demand that hate crimes are incriminated with a view to providing
more efcient protection of human rights and freedoms. Hence, it can be expected
that in the near future hate crimes will be incorporated, i.e. incriminated in the
Macedonian criminal law. This would facilitate collection and registering of
veriable statistics and other information about hate crimes, which will be useful in
examining their phenomenology and how they are processed by law enforcement
bodies in procedures for their detection, proving, and sanctioning.
In this context, it is necessary to emphasize the need for direct participation
of all bodies of the criminal law system, of the academic community, civil society,
non-governmental organizations the main goal of which is protection of human
rights and freedoms, and marginalized, minority and vulnerable groups in society
and of other subjects in the process of drafting amendments to the legislation for
ght against bias and hate motivated crime and for its prevention. The goal is to
facilitate a consultative process, to encourage initiatives and debates about good
practices and offer ideas and solutions for overcoming this problem.
Despite the fact that this paper does not offer a more detailed analysis of the
criminal law concept, based on the elaborated elements and aspects, it can be
concluded that it would be most benecial if a denition of hate crime is added
to the Criminal Code in line with the concept of “combined motives”, while in
meting out the sentences judges will establish if it is matter of hate crime and
consequently order a stricter punishment. In this respect, the draft paragraph
23 proposed to be added to Article 122 of the Criminal Code should be further
elaborated, i.e. expanded in order to cover all discriminatory grounds.
The comparative analysis of legislation on hate crime leads to the conclusion
that some criminal procedure legislations incorporate evidentiary standards
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that facilitate the interpretation, investigation and the overall enforcement of
the legislation. In some countries, there are guidelines, handbooks and other
tools (standard operating procedures and rules) which dene the elements and
features of the grounds of which the police and public prosecutors can establish
the bias indicators. It is of essential importance that such indicators are correctly
determined, investigated and taken into consideration with a view to establishing
whether a certain crime has been committed with a bias motive. Considering
the fact that it is very likely that in the Republic of Macedonia hate crime will
be incriminated, the possibility should be considered of introducing a system of
induction and continual training for law enforcement bodies for more efcient
identication, detection and proving of such crimes.
The major problem, which results in difculties in investigating hate crimes,
is the problem of establishing the motive of the perpetrator of the crime. It is
difcult to identify, detect and prove whether the perpetrator harbours hatred,
rage, repulsiveness, animosity, indignation, prejudice, bias. If there is hatred, then
there is hate crime and the perpetrator will be criminally liable for a hate crime and
thus will be faced with a stricter criminal sanction; otherwise, the perpetrator will
be held responsible for a general crime, which has the same constitutive elements,
but lacks the element of hatred. On the other hand, despite the fact that there has
been a real hate crime, it might very well happen that law enforcement bodies are
not able to detect and prove the hate motive of the crime and consequently in the
course of criminal proceedings the perpetrator will not receive the deserved more
grievous sanction for the perpetrated crime. Therefore, in investigating all crimes,
law enforcement bodies need to nd all clues, which lead to establishing all facts
and circumstances prior, during and after the perpetration of the crime, especially
those linked with the motive, will, purpose and intention of the perpetrator, i.e.
awareness of the perpetrator that he/she is committing a bias or hate based crime.
Furthermore, the evidence collected at the scene of the crime is to help establish
the link between the manner of perpetration of the crime with the motive and
intention of the perpetrator.
Another difculty in investigating this type of crime is the issue of providing
evidence as to how the victim has been selected, randomly or intentionally, i.e.
whether at the time of perpetration of the crime the perpetrator knew that the
victim belongs to a certain social group possessing protected characteristics. In
case the perpetrator has had no knowledge of which group the victim belongs to
that means he/she has not perpetrated the crime incited by bias or hate, but has had
other motives. Therefore, law enforcement bodies must thoroughly examine the
personality and character of the perpetrator from all aspects and it is recommended
to monitor the perpetrators post-delictum conduct, in order to see whether there
are any indications leading to the motive or intention, which become evident after
the crime has been perpetrated.
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The cooperation of law enforcement bodies (of the police) with citizens, who
are the greatest source of information, is of special importance in the process of
detection and proving this type of crime. In this context, there should be activities
undertaken in the future to raise the awareness of citizens and especially of
marginalized groups and to encourage them to report the planning, incitement
or the existence of this type of crime and to report any related information. The
pursued goal is that law enforcement bodies could successfully solve and process
the crime, which on its part will ensure timely and efcient investigation and
prosecution of hate crimes, particularly by taking into consideration the bias
motives that have prompted the perpetrator to commit the crime.
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MAPPING OBSTACLES IN PROCESSING HATE CRIMES
IN THE REPUBLIC OF MACEDONIA
Atanas Georgievski
1
ABSTRACT
In the past few years the country has undertaken a series of actions to improve
the effectiveness of processing hate crimes, but despite this progress, there is an
evident lack of implementation of legal provisions and appropriate response of the
criminal justice system, as well as lack of appropriate mechanisms for registering
hate crimes. Therefore, the purpose of this paper is to identify the problems and
obstacles in the processing of hate crimes, but also to offer recommendations and
tools to overcome them.
The methodology used in this paper relies on the simulation of real case
studies of hate crimes. A brief overview of relevant legislation is presented,
and also the author has conducted short interviews with police ofcers,
prosecutors, judges, lawyers and civil society representatives working on this
issue.
The main limiting factors of this research are the relatively new legislation
contained in the Criminal Code and the Law on the Determination of the Type
and Duration of the Sentence, the modest domestic case law with appropriately
investigated bias motivated crimes, which leads to very small number of judgements
in cases in which hate crime has been established.
Based on the analysis in the paper and the identication of the problems, the
author proposes conclusions related to particular amendments and improvements
of the system. The general conclusion refers to the adoption of the proposed
amendments to the Criminal Code, then to the establishment of an effective system
of recording and monitoring of hate crime incidents and strengthening the capacity
of law enforcement ofcers, prosecutors, judges and lawyers in bias motivated
crimes, having in mind the general message that is sent to society with this type
of crimes.
Therefore, the author believes that the justication of this paper derives from
locating system problems and giving clear guidance and recommendations to
overcome obstacles in processing hate crimes.
Keywords: hate crime, mapping, case studies, identication of problems.
1
Atanas Georgievski is Attorney at Law, Academy for Judges and Public Prosecutors of Republic of
Macedonia. E-mail: atanas.georgievski@gmail.com
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1. MAPPING DESCRIPTION AND GOALS
In the last several years, the Pavel Shatev Academy for Judges and Public
Prosecutors, together with the Organization for Security and Co-operation in Europe
Mission in Skopje [OSCE], has been implementing a Project for strengthening the
capacities of national judges and public prosecutors for hate crimes, and for raising
awareness about such crimes. In addition, the OSCE Mission in Skopje has worked
together with the Ministry of the Interior on trainings for police ofcers and on the
introduction of effective tools for recording complaints against hate or prejudice
based crimes. All these activities have gained on their importance following the
adoption of the amendments to the Criminal Code of the Republic of Macedonia
in February 2014, when paragraph 5 of Article 39 was amended. Thus, when
considering the aggravating circumstances of a case in meting out the sentence, the
court is to take due account whether the crime has been committed on the grounds
of any protected characteristic of the victim/ damaged party, i.e. whether the crime
has been motivated by hate or prejudice held by the perpetrator. This amendment
introduced more protected characteristics, introducing as well the concept of an
open-ended list of protected characteristics, the same as in the civil Law on the
Prevention of and Protection against Discrimination.
Despite such progress, in the country and in most countries of Southeast
Europe there is an evident lack of implementation of pertinent legal provisions,
with still lacking efcient mechanisms for recording hate crimes, especially in
procedures with the Ministry of the Interior and Public Prosecutors’ Ofces. If
we take into consideration the sometimes complex procedural prerequisites and
conditions, it becomes clear that the protection and ght against such types of
crimes become more and more difcult, assuming a marginal position as compared
to other preventive mechanisms focused on other “regular” crimes. Such obstacles
to the effective processing of hate crimes are present not only in the early stages
of reporting, registering and recording of such cases, but are also present in the
investigative procedure, which is the most important tool in the entire proceedings,
obstacles consequently being present also in ling an indictment against the
perpetrator, in court proceedings, over to the stage of meting out and pronouncing
an appropriate sanction.
In light of such a prevailing situation, the purpose of this mapping exercise
is to identify real problems and obstacles in processing hate crimes, and to
propose recommendations and instruments for their overcoming, whether through
interventions to applicable laws, or through practical implementation of relevant
laws and secondary legislation. In other words, this exercise identies legal
obstacles, both from the substantive and procedural viewpoint, determining as well
obstacles, or problems deriving from secondary legislation, as well as potential
obstacles to the implementation of relevant hate crime related legal provisions.
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Furthermore, in the context of OSCE Ofce for Democratic Institutions and
Human Rights [ODIHR] countries, it would be useful to make a comparative
analysis of national problems in individual countries so that “regional disputable
issues” could be identied, while the development of an appropriate and successfully
implemented methodology of mapping the performances of the system against hate
crime is of no lesser importance, considering that such mapping could be utilized
by other Southeast European countries and other ODIHR countries. The following
section explains the methods employed in the mapping.
2. METHODOLOGY
The methodology used in this mapping exercise in its essence relies on
examination of four real case studies of hate crimes. However, in order to make the
exercise and the prepared material more comprehensible for practitioners in other
potential beneciary countries, it was decided that before describing and elaborating
the case studies, a brief review is presented of applicable provisions of the Criminal
Code (of the general and special provisions), of the Law on the Determination of
the Type and Duration of the Sentence, as well as a review of specic provisions
contained in certain laws, such the Law on the Organization of Sport Matches and
the Law on the Prevention of Violence and Indecent Conduct at Sport Matches. In
addition, this section will also present a review of the concept of trainings which
have been organized by the Academy with a view to successfully preparing judges
and public prosecutors to process crimes motivated by prejudices or hate, as well as
a review of trainings for police ofcers organized in pursuance with the TACHLE
Program. There will be also a short presentation of the tool called “Red button”
recently introduced in police stations. At the end of the this introductory informative
section there is a brief elaboration of the possibilities offered by the Automated
Information System for Management of Court Cases [AKMIS], as well as of the
options offered by the new software designed for the needs of Public Prosecutors’
Ofces, which are directly related to the recording and monitoring of hate crimes.
In the context of the case studies, despite the fact it was rst envisaged that
some of them are set up as hypothetical cases, it was decided that all case studies
presented in this paper be real case studies, i.e. cases from the every day practice,
regardless of the fact whether they have been already processed, or are pending or
have been closed with a nal court judgment. For the purposes of this paper, rst
all facts and circumstances of the case will be described, and then there will be
presentation as to how the cases are to be processed under the criminal law system,
starting with the drafting of an ofcial note, police report, noting the constitutive
elements of the hate crime, the investigation and identication, the ling of criminal
charges, investigative procedure, preparing the indictment and its ling with the
court, all the way to producing evidence in court proceedings about the motives
of the perpetrated crime, establishment of guilt and sentencing of the perpetrator.
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For the purposes of this exercise and in relation to the simulation of the
processing of the selected cases, there were meetings held, i.e. short interviews with
police ofcers, public prosecutors, judges, defence lawyers and representatives of
the civil sector and of organizations that work with or represent victims of this type
of crime.
At the end, after the analysis of the cases, the most often encountered problems
in processing hate crimes are identied and recommendations are given for the
improvement of the on-going situation with a view to more effective dealing with
such crimes, especially taking into consideration the general prevention and the
protection of the wider social interest in the context of the multi-cultural character
of the country.
3. REVIEW OF PERTINENT DOMESTIC LEGISLATION
Article 9 of the Constitution of the Republic of Macedonia has a blanket clause
on equality, envisaging that citizens of the Republic of Macedonia are equal in their
freedoms and rights, regardless of sex, race, colour of skin, national and social
origin, political and religious beliefs, property and social status. In the hate crime
context, equality means that everybody has the right to equal protection before
the law as stated by the European Court of Human Rights in the case of Angelova
and Iliev.
2
Article 9 does not envisage a closed list of protected characteristics
because in pursuance with the monistic system of accepting international treaties,
upon their ratication, such treaties become an integral part of the national legal
system and consequently protection is provided for every right guaranteed under the
Constitution or a ratied international treaty.
However, as it can be expected when it comes to hate crimes, i.e. hate or
prejudice motivated crimes, the main piece of national legislation to be analyzed
is the Criminal Code. Yet, provisions of importance for the this mapping exercise
can also be found in the Law on the Determination of the Type and Duration of the
Sentence, and in the Law for the Prevention of Violence and Indecent Conduct at
Sport Matches.
In the context of the Criminal Code, the already mentioned amendment to
Article 39 in the general provisions Section of the Code has made a signicant
contribution. Hence, paragraph 5 of Article 39 stipulates that
“While meting out the sentence, the court shall particularly take into
consideration if the crime was committed against a person or group of persons
or property, directly or indirectly, due to his or their sex, race, colour of skin,
gender, belonging to a marginalized group, ethnic afliation, language, nationality,
social origin, religion or religious conviction, other types of conviction, education,
2
Angelova and Iliev versus Bulgaria, Judgment of the European Court of Human Rights, 26 July
2007.
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political afliation, personal and social status, mental or physical disability, age,
family or marital status, property status, health conditions or any other grounds as
set forth in law or in ratied international treaty.”
In the absence of an explicit denition of hate crime, this provision prescribes a
duty, serving at the same time as a motive for investigative bodies, prosecutors and
for judges to consider whether in a specic case the crime has been committed against
a person or group of persons or against property because of a protected characteristic
as referred to in the said paragraph or on any other grounds set forth under law or
ratied international treaty. This has been underlined in the majority of evaluations
following trainings on hate crime organized for judges and public prosecutors.
Similarly to the civil Law on the Prevention of and Protection against
Discrimination, this Article refers to 19 grounds that are individually stated, yet
not limiting their number, making a so called open-ended list of grounds that can
be found in other domestic laws or in ratied international treaties. Such is the case
with the protected characteristic of sexual orientation, which although not explicitly
mentioned in the list of grounds and despite the attempts to treat this characteristic
under the grounds of belonging to a marginalized group, (which is not adequate
according to the Guidelines on Grounds for Discrimination
3
)
represents a protected
characteristic upon which the domestic equality body i.e. the Commission for
Protection against Discrimination has already undertaken relevant procedures.
In the context of specic provisions of the Criminal Code, there are certain
crimes the predicate elements of which require the existence of a hate motive or
produce the consequence of spreading religious, racial, or other type of intolerance.
This applies to the crime of “Murder” under Article 123. Thus, paragraph 2, item 4
of this Article stipulates a prison sentence of at least 10 years if a person takes the
life of another for self-interest, because of committing or covering up some other
crime, for ruthless revenge or for other low motives. Article 137 relates to violation
of equality of citizens and prohibits deprivation of or limiting of rights set forth
under the Constitution and ratied international treaties on the grounds of gender,
race, colour of skin, national and social origin, political and religious belief, wealth
and social position, the language or other personal characteristics or circumstance.
Paragraph 4 of Article 144 punishes the endangerment of the safety and the making
of threats against a person by using an information system on grounds of that person’s
national, ethnic, racial or religious background. Furthermore, a characteristic crime
sanctioned in the special sections of the Criminal Code is Causing national, racial or
religious hate, discord and intolerance, under Article 319, which stipulates a prison
sentence of one to ve years for a person who by force, mistreatment, endangering
the security, ridicule of the national, ethnic or religious symbols, by damaging other
people’s objects, by desecration of monuments, graves, or in some other manner
causes or incites national, racial or religious hate, discord or intolerance.
3
See more: Kotevska, B. (2013). Vodič zа osnove diskriminаciјe. OEBS Mission to Skopje.
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In conclusion, another three characteristic provisions of the special section of
the Criminal Code should be mentioned and these are provisions relating to Crimes
against Humanity and International Law, i.e. Article 403 that denes the crime of
Genocide and paragraph 2 of Article 407-a, which prohibits negation, minimizing,
approval or the justication of crimes against humanity and international law,
qualifying the crime as a more serious form of crime if it has been perpetrated
with the intention of inciting hate, discrimination or violence against a person or
group of persons due to their national, ethnic or racial origin or religion. These are
characteristic provisions since despite the fact that war crimes are often prejudice
based, considering that war crimes are also a violation of international law and
affect the entire international community, they are not covered by the category
of hate crimes. Most often war crimes are processed by international or special
tribunals. Another feature that differentiates them is that in the context of certain
war crimes it is necessary to provide proof of a special intention (for example
as regards genocide it is necessary to prove the intention to partially or entirely
exterminate the group which is the object of the attack) in addition to providing
proof of prejudices, which prompt the perpetration of the hate crime. The last
series of incriminations is contained in Article 417 - Racial or other discrimination,
which prohibits violation of fundamental human rights and freedoms recognized by
the international community on the grounds of differences in race, colour of skin,
nationality or ethnic belonging, while paragraph 3 of the same Article prohibits
spreading ideas of superiority of one race over another or promoting racial hatred
or incitement to racial discrimination. These incriminations are specic in their
substance and have therefore been included in this mapping, despite the fact that
ofcial statistics have not recorded a single case of such crimes.
The Law on the Determination of the Type and Duration of the Sentence
regulates the meting of the type and length of the sentence, then the bargaining
on the type and duration of the sentence between the public prosecutor and the
indicted person and the establishment, the composition, mandate and competence
of the Commission for Harmonization of the Penal Policy. However, in terms of
hate crimes, the author considers that barging should be limited only to the more
severe punishment stipulated for the perpetrator due to aggravating circumstances
set forth under Article 39, paragraph 5 of the Criminal Code and should in no case
cover the basic punishment stipulated for the specic crime in question. This would
enable applying more severe sanctions, which on its part is one of the instruments
for prevention of this type of crime, without violating the right to plea-bargaining
in pursuance with the new concept integrated in the Law on Criminal Procedure.
In meting out the sentence, aggravating or alleviating circumstances are taken
into consideration by adding or subtracting points, while the starting basis is the
mean value of the set forth sentence in each vertical category in line with the Table
presented in Addendum No. 1, which is an integral part of the said Law.
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The aggravating or alleviating circumstances which impact the duration of the
sentence are divided in the following groups: degree of criminal liability, motive
of the crime, the intensity of the endangerment or of the violation of the protected
goods, circumstances under which the crime has been committed, contribution of
the victim to the perpetration of the crime, the character i.e. the former life of he
perpetrator, the personal situation and conduct after the perpetration of the crime,
other circumstances related to the character of the perpetrator and whether his/
her previous crimes are of the same type as the newly committed crime, the issue
whether previous and new crimes have been committed with the same motive,
the time that has elapsed since the last court judgment, i.e. the already served or
pardoned part of the sentence. The list of aggravating or alleviating circumstances
under which the crime has been committed contains points allocated for each
circumstance individually in the Table contained in Addendum No. 2 which is an
integral part of the said Law.
In this respect, the author would like to paint out an evident inconsistency.
Hence, under the category of “motive of the perpetrated crime”, motives such as
national, religious and racial hatred, as aggravating circumstances, are allocated
8 points, while other types of hatred on the grounds of gender, age, sexual
orientation, disability and similar are allocated 6 points. Perhaps the intention of
the legislator was to add more weight to the rst mentioned three grounds, taking
into consideration the multi-ethnic composition of the country and the different
religions. However, the is no logic in “degrading” or considering the circumstances
less aggravating if the crime has been committed on the grounds of some of other
protected characteristic of the victim- the damaged party, such as gender, age,
sexual orientation or physical or mental disability.
The Law on the Prevention of Violence and Indecent Conduct at Sport Matches
regulates issues of violence and inappropriate conduct at sport matches and
envisages measures for their prevention, as well as measures to ensure the safety of
spectators, competitors and other participants in sport matches, prescribing as well
obligations for organizers of sport matches and dening the competences of bodies
in charge of implementing of the set forth measures.
According to Article 3 of this Law, violence and indecent conduct at sport
matches shall inter alia apply to brining in and hoisting banners, ags and other
items containing text, images, signs or other markings, and chanting songs or
messages, which cause or incite hatred or violence on grounds of racial, national or
religious afliation or on grounds of other characteristics.
Article 7 of the same Law denes obligations for organizers of sport matches.
Hence, organizers are obliged to provide security staff for the match, who inter
alia are responsible to prevent bringing in banners and markings that incite racial,
national, religious or other intolerance, being also responsible to warn and remove
spectators who by chanting songs or offensive messages could cause or incite hatred
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on grounds of racial, national, or religious afliation, and to warn and remove
spectators whose indecent conduct could cause violence at the sport match.
The violation of these provisions gives rise of misdemeanour sanctions and
punishments both for the perpetrators of the incidents and for the sport clubs or
organizers of sport matches.
4. TRAININGS FOR JUDGES AND PUBLIC PROSECUTORS AND THE
TACHLE PROGRAM FOR POLICE OFFICERS
As of the end of 2012 until presently, in cooperation with the OSCE Mission
in Skopje, the Academy for Judges and Public Prosecutors, has been working hard
preparing judges and public prosecutors and preparing quality educators and a
potential team of trainers on the issue of prejudice motivated crimes.
In 2013 and in 2014 several events were organized as part of the annual training
program of the Academy. First, there was training of trainers conducted by a team
composed of experts of the Academy and of the OSCE Mission, domestic and
international trainers, having an extensive experience on this issue. Furthermore, in
2013 and in 2014 there were four cascade two-day trainings for each of the circuits of
appellate courts, covering more than 80 participants annually. In 2014, in addition to
these trainings, there were additional trainings organized for trainers at the Academy.
The main purpose of these events was to raise the awareness of domestic judges
and prosecutors and to prompt their understanding of the concept of hate crimes in
accordance with relevant international documents and standards, to which the country
has subscribed by becoming a Party to the European Human Rights Convention. Of
course, the trainings covered the issue of application of relevant national legislation.
Hence, the focus of the 2014 trainings was on the amendments to paragraph 5 of
Article 39 of the Criminal Code, which entered into force in February this year.
In the second half of 2015, or more precisely in the period from September to
November, there was a consultative session organized for the team of 12 educators in
order to introduce them to the latest OSCE/ODIHR recommendations and documents,
and to offer them a refreshment course on the program for cascade trainings for each
circuit of appellate courts. The total number of participants in the 2015 trainings was
close to 80 participates, mainly criminal law judges and public prosecutors, but also
professional staff at courts and public prosecutors’ ofces working on such cases.
Furthermore, in 2015, in cooperation with the OSCE/ODIHR, the Ministry
of the Interior of the Republic of Macedonia started implementing the TACHLE
Program of trainings on hate crimes for police ofcers. A total number of 50 police
ofcers from managerial ranks at Sectors for Internal Affairs and from the Training
Centre of the Ministry of the Interior attended the trainings.
The training plans for 2016 include organization of cascade trainings for the
entire police staff in order to prompt a more systematic approach and to encourage
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changes in the attitude of police ofcers regarding hate crimes and hate speech. The
purpose of the trainings is to raise the awareness of police ofcers about the necessity
of properly recording hate crimes, and about the necessity of recognizing indicators
of potential hate crimes.
5. RECORDING OF HATE CRIMES AT THE MINISTRY OF THE
INTERIOR, PUBLIC PROSECUTORS’ OFFICES AND COURTS
One of the most important tools of an effective system for ght against hate
crimes is the system of recording hate crimes and their perpetrators. Therefore, this
section of the paper will present a brief review of possibilities and tools to this end
that are currently available to in-line institutions.
In 2015, the Ministry of the Interior promoted and introduced an application
called Red Button the purpose of which is to encourage citizens to report hate
crimes or violence. There is a possibility that crimes are reported by victims
themselves or by another person on their behalf. The application requires to ll in
data about the victim, data about a person that the victim trusts, description of the
event, if the event took place on the Internet, data about the WebPages on which
the incident happened and other useful information. One deciency that needs to
be underlined is the lack of harmonization of this application with the amendments
to paragraph 5 of Article 39 of the Criminal Code of the Republic of Macedonia
adopted in February 2014.
It could not be said that the application is used as much as expected. Hence, as
of the day of its introduction until 15 July 2915, 7 cases of hate speech were reported,
of which half were related to hate speech on social networks as tools used to spread
hatred. On-line complaints do not contain substantive data and information, but
despite this, relevant services examine the contents of the complaints. It is evident
that better promotional activities are needed, being also necessary to raise the public
awareness about the usefulness of the application, which in fact facilitates greater
level of pro-active work on this issue by the police.
However, it should be underlined that the Ministry of the Interior does not keep
separate records of reported crimes perpetrated on grounds of any of the protected
characteristics set forth under paragraph 5 of Article 39 of the Criminal Code. Hate
crimes are recorded as part of the overall records of crimes that are investigated ex
ofcio or upon a civil law complaint.
Following the entry into force of the new Law on Criminal Procedure, the Public
Prosecutors Ofce was given a completely new role in the criminal procedure.
Such a new role required better equipping of the Public Prosecutors Ofce and the
design of new software tools that would enable Public Prosecutors facilitated access
to relevant information, as well as a fast link to the Automated Information System
for Management of Court Cases. Major part of the new software applications are
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already in use, such as the system of recording cases, case management, hearing
parties and witnesses, which facilitates the every day practical work of Public
Prosecutors. At this stage, there are activities underway on the second part of the
software application that will enable inter-connectivity with courts.
In terms of recording and monitoring hate crimes, the new software application
offers the possibility of using the so called “Radio Button”, which enables Public
Prosecutors to mark crimes, i.e. indictments and petitions led against perpetrators
who have committed crimes on the grounds of prejudices or on grounds of a
protected characteristic of the victim.
At the time this paper was prepared, no ofcial information could be found as
to whether and how often this tool has been used to record hate crimes at Public
Prosecutors Ofces, which means that this tool is still not implemented in the
practice.
As regards courts, for several years now they have been successfully using the
AKMIS - a system for electronic case management. The system offers possibilities
of recording, selecting and searching court judgments according to the grounds
or according to the type of the crime perpetrated (in criminal courts), and to mark
all judgments relating to hate crimes, i.e. cases in which courts have established
that the crime has been committed on basis of hate, prejudice or on grounds of a
protected characteristic of the victim. Despite such a possibility, it is still not clear
whether the system is able to register the protected characteristic on the grounds
of which the crime has been committed, or whether the system just registers that
paragraph 5 of Article 39 of the Criminal Code has been applied.
However, according to the positioning of courts under the new Law on Criminal
Procedure, the activities for proving the motives must start as early as the receipt of
the complaint by the Ministry of the Interior and continues over to the procedures
pursued by the Public Prosecutors Ofce. Hence, in such a system set-up, the court
records in this context will reect the records kept by Public Prosecutors’ Ofces.
There cannot be satisfaction with the real recorded number of ofcially
processed and completed cases of hate crime. However, it can be said that practical
tools and preconditions have been ensured in each of the in-line institutions enabling
them to successfully keep proper records of hate crimes.
6. CASE STUDIES
The purpose of this section of the paper is to utilize real cases from the practice
to demonstrate how such cases should be “moving through” the system of court
protection, i.e. to demonstrate what each of the in-line institutions are to undertake
in a specic case and whether such activities have been indeed undertaken by
institutions. Hence, the following are studies of four real cases that occurred in the
Republic of Macedonia in 2013 and in 2014.
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6.1. Young Man stabbed on the Day of Celebration of the Albanian Flag
On the Day of Celebration of the Albanian Flag, near the Skenderbeg Square, a
20-year-old Albanian was stabbed several times with a sharp object.
Thus, the unknown perpetrator or perpetrators have potentially committed a
number of crimes, such as Act of violence (Article 386), Grave body injury (Article
131) and Threatening with a dangerous instrument during a brawl or a quarrel
(Article 133).
In this incident, the prejudice motive is the ethnic afliation or the language of
the victim, while the prejudice indicators are the following:
1. The nature of the incident - The incident has elements of violence;
2. Location- The incident happened in public, at the Skenderbeg Square,
before the eyes of number of passers-by or citizens who found themselves
at the time of the incident at the Square;
3. Time- The incident took place on the Day of Celebration of the Albanian
Flag;
4. Pattern of previous incidents- This is the third consecutive case of stabbing
young people in the last three years taking place on the Day of Celebration
of the Albanian Flag.
Response by in-line authorities: The Ministry of the Interior replied to the Request
for information of public character sent by the Helsinki Committee saying that the
Ministry was undertaking all required measures to fully clarify the case.
6.1.1. Obligations and activities to be undertaken by the Ministry of
the Interior of the Republic of Macedonia
In this case, police ofcers are to investigate the motives of such actions by
the perpetrators, and they are to make efforts to promptly and efciently nd and
identify all or at lest some of the perpetrators; they are also to prepare a report of
the investigation, which will clearly and unequivocally state that the victim was
attacked because of his ethnic afliation exactly on the Day of Celebration of the
Albanian Flag and that the incident took place in public, at the Skenderbeg Square.
Furthermore, police ofcers need to take the statement of the victim, document his
account of the incident, and investigate if perhaps there were other motives for the
perpetration of the crime. In addition, one of the most important obligations of the
Ministry of the Interior is to secure all evidence from the scene of the crime and
to provide witnesses that could be useful for the Public Prosecutor in the further
procedure and who could be called before the competent court in the later stages
of the case. Furthermore, it needs be underlined that every police station should
obligatorily keep records of and have a register of perpetrators of hate crimes, this
being an important element in the chain of evidence regarding prejudice based
crimes.
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6.1.2. Obligations and activities to be undertaken by the competent
Public Prosecutor’s Ofce
According to the new concept of the Law on Criminal Procedure, the Public
Prosecutors Ofce leads the investigative procedure and has competence of
issuing orders to the justice police (police ofcers) to undertake specic activities
and apply measures necessary for a successful investigation and for collection of
necessary evidence. In this specic case, the Public Prosecutor should assess the
allegations stated in the police report and the collected evidence, and to examine
the wider social context and rate of perpetration of such crimes, i.e. such crimes
are repeated every year on the same day, offering proper arguments in this respect
in the indictment that would be led in this case. The indictment should contain
all previously mentioned required elements regarding the protected characteristic
of the victim, the place where the crime was perpetrated, explicitly requiring that
perpetrators are convicted of their crimes with a stricter sentence considering that
they had perpetrated the crime on grounds of one of the protected characteristics
of the victim, as stated in Article 39, paragraph 5 of the Criminal Code of the
Republic of Macedonia. From the procedural viewpoint, the Public Prosecutor is
to examine and process all evidence and take statements from the person indicted,
witnesses and from the damaged party, i.e. the victim of the prejudice motivated
incident. In addition, if necessary, the Public Prosecutor may take statements from
the community, from people having residence close to the place where the incident
took place and to check whether there are some public messages, grafti and
similar which incite and spread ethnic hatred against the Albanian community, or
are derisive and deny the Albanian ag and search for any other evidence in support
the claim that this was a crime, which results from hatred or prejudice against the
ethnic afliation of the victim.
6.1.3. Obligations of the judge and parties to the court proceedings
Considering the lack of a clear denition of hate crimes, the judge is to focus
on the motives of the crime, and assess the statement and the manner of conduct of
the person indicted, although not always perpetrators of hate crimes have the same
attitude and conduct as in the preliminary procedure. Often times, as advised by their
defence lawyers they change their statements and deny that they have committed the
crime on the grounds of a protected characteristic of the damaged party. Therefore,
the court must focus on proposed and produced evidence and establish correctly
the motives of the crime and, applying Article 39, paragraph 5 of the Criminal
Code of the Republic of Macedonia order a stricter punishment for the perpetrator.
This means that in meting out the sentence the judge is to appropriately apply the
Law on the Determination of the Type and Duration of the Sentence, i.e. in light
of all circumstances of the case, the judge is to add negative points because of the
motives of the crime.
In this context, it should be underlined that the court is obliged to hear the
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damaged party, taking his statement as evidence, being also obliged to assess the
victim’s allegations and views about the critical event and his perception of the
perpetrator, or in this case the attacker or attackers. Often times, the damages party,
or the victim is the only one that has heard and that can testify as a witness to the
statements made by perpetrators at the time of perpetration of the crime, which
on its part is of essential importance in establishing the motives for the crime. In
this regard, lawyers representing the damaged party need to be prepared for this
type of proceedings and support the Public Prosecutor in proving the guilt of the
perpetrator and the need for stricter punishment.
6.2. The LGBTI Community was attacked in the Old Bazaar in Skopje
In the course of the celebration of the second anniversary of the LGBTI Support
Centre, a group of about 40 masked perpetrators ran towards the café called “Damar”
and threw stones at the café, with 60 people in it. During the attack, two of the café
clients were in front of the café, so the group of attackers started hitting them with
glass bottles and feasts, shouting that they “need to go away” and that “there is no
room for faggots in the Old Bazaar”. Several of the clients in the café sustained minor
injuries, i.e. cuts from the broken glass.
By perpetrating such actions the suspects and instigators of this incident
perpetrated a number of crimes such as Bodily injury (Article 130), Damage to
objects of others (Article 243), Act of violence (Article 386), Endangering security
(Article 144), and Threatening with a dangerous instrument during a brawl or a
quarrel (Article 133).
The bias motive in this incident is sexual orientation and sexual identity, while
in addition to announcements of and calls for violence on social networks and calls
by public personalities, the following are other bias indicator in this incident:
1. The differences between the perpetrator and victim - In the course of
the incident, the victims were engaged in an activity for promotion and
celebration of their culture, sexual orientation, gender identity, celebrating
the second anniversary of the establishment of the LGBTI Support Centre;
2. Comments - The perpetrators shouted offensive and threatening words
against the community to which the victims belong;
3. Pattern of previous incidents - This incident is the sixth attack against
the LGBTI community and its activities in the Old Bazaar in the rst two
years of the work of the Support Centre. The ve previous incidents were
attacks against the seat of the LGBTI Support Centre;
4. The nature of the incident - The incident has elements of violence;
5. Location - The incident took place in public, of all the cafés it was only
the Damar café that was attacked exactly that night, although this café has
been working without any problems and incidents for several years now;
6. There are no other known motives for the crimes.
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Response by the competent authorities: The Ministry of the Interior replied to
the Request for information of public character sent by the Helsinki Committee
saying that a Report was made of a receipt of criminal charges against unknown
perpetrator(s) for the crime of violence. The reply does not contain any information
about the possible motive of the crime.
6.2.1. Obligations and activities to be undertaken by the Ministry of
the Interior of the Republic of Macedonia
In this case, police ofcers need to work on the fast and efcient nding and
identication of all or some of the perpetrators, and then they need to focus on preparing
a quality police report about the event, in which the motive and circumstances under
which the crimes was perpetrated will be stressed; it is necessary to primarily
underline that it was a matter of a celebration of the second anniversary of the opening
of the LGBTI Support Centre, that this was the sixth consecutive attack in two years,
that the Damar café was the only attacked establishment that night, despite the fact
that the other clubs and cafés in the Old Bazaar were all working; the messages
and the conduct of the perpetrators need to be underlined in the Report, which will
help clearly establish that sexual orientation, as a protected characteristic, was the
motive for the unlawful conduct of the perpetrators of the crimes. Furthermore,
police ofcers need to take statements from some of the victims and document their
account of the incident.
6.2.2. Obligations and activities to be undertaken by the competent
Public Prosecutor’s Ofce
In this specic case, the Public Prosecutor just needs to continue where the police
ofcers will have left, by assessing the allegations contained in the police report and
the collected evidence and accordingly prepare a quality well-focused and argument
based indictment against the attackers. The indictment should contain all previously
referred to elements regarding the protected characteristic of the victims, the motives
of the crime, the place where the incident took place, stating clearly the request that
perpetrators are convicted of their crimes with a stricter sentence considering that
they perpetrated the crime on grounds of one of the protected characteristic of the
victims, as stated in Article 39, paragraph 5 of the Criminal Code of the Republic
of Macedonia. The fact that sexual orientation is not explicitly stated in the said
Article should not be a problem, since as stated above, it is a matter of an open-
ended list, and therefore the Public Prosecutor has ample manoeuvring space and
state that the motive for the perpetration of the crime is sexual orientation, while
referring to the case law of the European Human Rights court.
4
From the procedural
aspect, the Public Prosecutor needs to examine and process all evidence; take
statements from the indicted persons, from witnesses and the damaged parties, i.e.
the victims of the prejudice-motivated incident. Furthermore, the Public Prosecutor
4
Identoba and Others v. Georgia, Judgment of the European Court of Human Rights, 12 August
2015.
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can present as evidence the grafti written near the Support Centre in the Old
Bazaar, which spread hatred against persons belonging to the LGBTI community;
such grafti and messages are indeed written
5
and would support the Prosecutors
arguments and would conrm the claim that this crime was committed as a result
of hatred or prejudices against the sexual orientation of the victims.
6.2.3. Obligations of the judge and parties to the court proceedings
In this specic case, the judge and the court need to exclusively focus on the
proposed and produced evidence and establish correctly the motives of the crime and
applying Article 39, paragraph 5 order a stricter punishment for the perpetrators. This
means that in meting out the sentence the judge is to appropriately apply the Law
on the Determination of the Type and Duration of the Sentence, i.e. in light of all
circumstances of the case, the judge is to add negative points because of the motive
of the crime. In this case, the fact that sexual orientation is not explicitly set forth
under the said Article should not be a problem for the Court as well, since the Court
is to consistently respect the concept of the open-ended list and opt for stricter
punishments for the perpetrators arguing that the motive of the perpetrators were
prejudices
against persons belonging to the LGBTI community.
As in the previous case, it should be underlined that the Court is obliged to
hear the damaged parties, taking their statements as evidence, especially taking
into consideration that it was a matter not only of victims as natural persons, but
it was a matter of damaging property of the owner of the café. Therefore, it would
be benecial to take a statement from the owner of the café in his/her capacity as a
damaged party, either directly or if the owner of the café is a registered legal person
then through the authorized legal representative of the legal person.
If in the specic case, the Public Prosecutor and the Ministry of the Interior
undertake the actions, as explained above, the Court will have the “easy” task
of establishing the guilt of perpetrators and meting out a stricter punishment,
considering the motive of the crime. In this respect, it is however important to
provide sufcient evidence from the criminal records as to whether some of the
perpetrators have previously taken part in similar incidents and if there are such
perpetrators this would add even more negative points under the Law on the
Determination of the Type and Duration of the Sentence.
6.3. Young Man Brutally Beaten in the Settlement of Lisiche
J.I., (age 18) ethnic Albanian, was brutally attacked and beaten in the Skopje
settlement of Lisiche on Friday night. J.I. was out with his friends and after they
left he headed alone for home, but was met by a larger group of attackers who,
asked him about his ethnicity. After he answered that he was ethnic Albanian, he
5
During one of the attacks against the LGBTI Support Centre, near the Centre grafti stating
“TREMITI” was written. The Tremiti Islands are a group of islands in the Adriatic Sea, where the
Mussolini regime deported persons suspected of being homosexual.
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was immediately attacked and hit with a baseball bat, following which he lost
consciences and fell on the ground.
The group of attackers continued to beat the unconscious young man until a
passer-by noticed the incident and called the police and an ambulance. The victim
was taken to the Clinical Centre where he was provided medical treatment, with
doctors establishing numerous injuries.
In the investigation, the Ministry of the Interior established that J.I. together
with ve friends, some which were girls, was approached by the minor B.L. (age
14), who asked him where he lived and after J.I. answered that he lived in Chair (a
settlement in Skopje) the minor left the group and telephoned the person A.M. (age
16) and called another ve of their peers, after which all of them together went after
J.I. After J.I. noticed the group, the girls left, but soon after the group caught up
with them and started beating J.I. and his friend. J.I. suffered a broken lower jaw
and bruises on the head, while his friend was hit only one or two times. Finally,
the Ministry of the Interior informed that it would consult the Public Prosecutors
Ofce with respect to the qualication of the crime and that criminal charges
would be brought against the attackers, all of them of minor age.
6.3.1. Obligations and activities to be undertaken by the Ministry of
the Interior of the Republic of Macedonia
In this case, police ofcers are to investigate the motives of such actions by
the perpetrators, and they are to make efforts to promptly and efciently nd and
identify all or at least some of the perpetrators; they are also to prepare a report of the
investigation which will state that the victim was very likely attacked only because
of his ethnic afliation. The Report should underline that the damaged party- the
victim was in a settlement, which is considered as non-Albanian, i.e., a settlement
predominantly inhabited by ethnic Macedonians. Considering that the incident
involves several persons, in this specic case, it would be of essential importance
that police ofcers take quality statements from the suspected attackers, from the
witnesses (the passer-by who reported the incident and the girls who were in the
victim’s company) and to secure material evidence (traces of blood, the baseball
bat, etc.). Furthermore, police ofcers need to take a statement from the victim
and document his account of the incident and they need to investigate whether
eventually there were other motives for the crime. Of course, one of the important
features of this incident is that some or all perpetrators are of minor age, which
requires appropriate implementation of provisions applicable for this category of
perpetrators of crime.
Finally, as stated in the communication of the Ministry of the Interior, police
ofcers need to consult the competent Public Prosecutor about the classication of
the criminal law event before ling the criminal charges.
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6.3.2. Obligations and activities to be undertaken by the competent
Public Prosecutor’s Ofce
In this specic case, the Public Prosecutor needs to assess the allegations in the
police report and the collected evidence and examine the wider social context, the
rate of perpetration of such crimes, whether they have been repeated and consider
possibilities for preventive actions in order to prevent a “spiral” of such and similar
crimes, which could occur in the vice-versa context, i.e. an ethnic Macedonian being
attacked and being seriously injured in a predominantly Albanian community. This
means that the indictment should offer a more comprehensive elaboration of the
public interest, as well as elaboration of issues such as the threat of repetition and
increasing frequency of such crimes, stressing as well the motives of the crime,
pointing out the place where the incident took place, requesting clearly that the
perpetrators are given stricter punishments in pursuance with Article 39, paragraph
5 of the Criminal Code of the Republic of Macedonia, considering that they
committed the crime on grounds of one of the protected characteristics of the
victim. In the procedural context, the Public Prosecutor is to examine and process
all evidence and take statements from the persons indicted, witnesses and from
the damaged party, i.e. the victim of the prejudice motivated incident. In addition,
if necessary, the Public Prosecutor may take statements from the community or
from people having residence close to the place where the incident took place and
check whether there are some public messages, grafti and similar which incite
and spread ethnic hatred against the Albanian community, and search for any other
evidence in support of the claim that this was a crime which resulted from hatred or
prejudice against the ethnic afliation of the victim. Similarly to the obligations for
police ofcers, when interviewing the indicted persons, the Public Prosecutor too is
to apply and respect provisions of the Law on Criminal Procedure and the Law on
Juvenile Justice relating to treatment of juveniles in a criminal procedure.
6.3.3. Obligations of the judge and parties to the court proceedings
Again as in the rst elaborated case, considering the lack of a clear denition
of hate crimes, the judge is to focus on the motives of the crime, and assess the
statements and the manner of conduct of persons indicted, although perpetrators of
hate crime do not always have the same position and conduct as in the preliminary
procedure. The Court has the obligation of analyzing individually and in their
entirety all proposed and produced evidence and establish correctly the motives
of the crime and applying Article 39, paragraph 5 order a stricter punishment
for the perpetrators. This means that in meting out the sentence the judge is to
appropriately apply the Law on the Determination of the Type and Duration of
the Sentence, i.e. in light of all circumstances of the case, the judge is to add
negative points because of the motive of the crime.
In this context, it should be underlined that the court is obliged to hear the
damaged party, taking his statement as evidence, being also obliged to assess the
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victim’s allegations and views about the critical event and his perception of the
perpetrators. Considering that in this specic case there were several witnesses and
eyewitnesses, it is necessary that they too are heard as witnesses by the court, in
addition to hearing the damaged party. As regards parties to the proceedings of minor
age, the Court may decide to use their statements given in the preliminary or in the
investigative procedure in order to avoid exposing them to the stress of the court
proceedings, especially if the defence lawyers of the persons indicted give their
consent too.
6.4. A café in the Old Bazaar demolished because of people upset by
hearing Macedonian music
At around midnight in the café called New Orleans in the Old Bazaar in Skopje,
a person came who started an altercation requesting that Macedonian music is not
played. After the person left the café, he returned soon thereafter with a several
young people at the age of 20 to 25 years who continued the altercation, after which
they broke two glass walls and the PC owned by the DJ. When an employee of
the café wanted to call the police, the attackers took her telephone and broke it by
throwing it on the ground and stamping on it.
After the police operation, two violent attackers who demolished the café were
placed in police custody. One of them, aged 24, was a violent perpetrator well-
known to the police. The person was transferred to the Remand Prison Skopje, being
previously charged by the police as a perpetrator of other violent crimes. Hence,
in 2011 he was suspected of two crimes Participation in a crowd, which prevents
an ofcial person to perform an ofcial act” and “Participation in a brawl” in the
course of the incident that took place at the Kale (The Skopje Fortress). According
to unofcial information, it was a matter of a leader of the group of football fans
called Shverceri (Smugglers) (supporters of the Shkupi Football Club in Skopje,
composed mainly of ethnic Albanians) and he was the third indicted party
6
in the
Skopje Fortress incident case three years ago.
The Police informed that they had summoned for an interview several people
who were suspected of being involved in the incident. According to the claims of
the owner of the café in the Old Bazaar in Skopje, the group of attackers had about
10 members. He was surprised, since in three years this had been the rst incident.
The motive of the demolition of the New Orleans café was the dissatisfaction
with the DJ playing a Macedonian traditional song called “Raspukala Shar Planina”
(The Ire of Mountain Shara). The attackers broke the DJ’s PC, the furniture in the
café and the windows. Three of the employees were injured, as well as the girl who
tried to call the police.
6
An inter-ethnic incident between large groups of Macedonians and Albanians took place at the
Skopje Fortress on 14 February 2011.
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In this case, on 22 August 2014, the Skopje 1 First Instance Court had the main
public and oral hearing in which only two persons were indicted - O.B. and B.I. for
the crime of Violence under Article 386, paragraph 3 referring to paragraph 1 of the
Criminal Code and the sitting judge issued convicting judgments as follows:
The indicted person B.I. was ordered an alternative measure of suspended
sentence, i.e. the person was convicted to two years imprisonment, which will not
be served if within a ve year period after the nal judgment the indicted person
does not commit a new crime.
The indicted person O.B. was sentenced to 1 year in prison for the crime of
Violence, under Article 386, paragraph 3 referring to paragraph 1 of the Criminal
Code, and in the sentencing Article 26 of the Rulebook on the manner of meting
out sentences was applied, owing to the fact that the indicted person had been that
far convicted of the same type of crime, i.e. the suspended sentence to which he
was convicted for the crime under Article 284 of the Criminal Code evidently did
not produce the correctional effect on the indicted person not to
repeat the same or
similar crimes.
In respect of the two indicted persons, the court took into consideration the thus
far cases of such type of crimes and the increasing occurrence of such incidents,
which violate the public peace and order and thus endanger the safety and security
of citizens of the Republic of Macedonia and spread fear among citizens, especially
when such crimes are committed by a group of perpetrators.
Considering that the indicted person O.B. was already in remand prisons, the
Court ordered a prison sentence, and taking into consideration that he was placed
in remand prison for a crime against the public order and in view of all above stated
at that stage of the proceedings the court decided to prolong the remand prison until
the adoption of a nal judgment, i.e. up to 60 days at the most.
The bias motive in this incident is the ethnic afliation, and the bias indicators
are as follows:
1. The difference between the perpetrator and the victim- grounds of ethnic
afliation- the perpetrators were Albanians while the owner of the café
was a Macedonian;
2. The comments on the scene of the crime- Before the incident there was a
verbal argument during which the perpetrators demanded that the DJ did
not play Macedonian music;
3. The character of the incident – The incident had elements of violence;
4. Previous incidents- Before the incident at hand, the perpetrators were
involved in other inter-ethnic incidents;
5. There are no other motives for the incident.
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6.5. The procedures undertaken by in- line bodies and institutions
In this last case there will be no analysis similar to the previous three cases
considering that this case has been chosen as an example of a positive practice, i.e.
a this is a case in which the perpetrators were relatively promptly discovered and
identied, and there was a prompt and efcient court procedure resulting in one
alternative measure of suspended sentence and one effective prison sentence of one
year.
However, there are two important shortcomings. First, the damaged party
was not summoned by the court and was not heard by the court during the court
proceedings, and the second important shortcoming is that the judgment does not
contain sufcient reasons which would conrm that it was a matter of a prejudice
based crime, in which context it would be appropriate to apply Article 39, paragraph
5 of the Criminal Code of the Republic of Macedonia. Instead, the reasoning
of the judgment only stated that it was a matter of an increasing occurrence of
such incidents that violate the public peace and order and that affect the safety
and security of citizens of the Republic of Macedonia, spreading thus fear among
citizens, especially when the crime is committed by groups of perpetrators. This
means that despite the fact that there was an efcient court outcome of the case, it
could not be said that this is a good example in terms of quality processing of hate
crimes.
Despite this, it was decided to present this case in which a nal judgment
was adopted pronouncing the two indicted persons as guilty and punishing them in
accordance with the law.
7. IDENTIFICATION OF SYSTEM PROBLEMS
In light of the purpose of this exercise, the identication of problems in the
system for ght against hate crime is of key importance in order to advance and
make the system efcient, thus becoming solid basis to dene recommendations
for the in-line institutions, as guidelines for issues on which they need to focus
their activities. This mapping exercise pinpoints legislative deciencies, as seen
from the review of the pertinent domestic legal framework, but also underlines the
lack of practical tools, and problems relating to procedures undertaken by and the
cooperation between and among state bodies and institutions.
1. One of the largest obstacles, especially for practitioners, is the lack of a specic
denition of hate crimes, while in addition to qualied grievous forms of
certain crimes, efcient provisions for ght against hate crimes usually come
down only to Article 39, paragraph 5, which has been elaborated in detail in the
third section - Review of pertinent domestic legislation. In the meantime, the
Working Group, established upon the initiative of the OSCE Mission in Skopje,
and supported by the Minister of Justice, drafted the amendments to the Criminal
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Code, inter alia, amendments relating to dening hate crimes. The nal draft is
to be completed to the end of December 2015, following a public debate at the
Academy for Judges and Public Prosecutors of the Republic of Macedonia.
2. As regards certain “less grievous” crimes, according to the Law on Criminal
Procedure, the Public Prosecutor may not institute ex ofcio prosecution
procedure. Instead, the prosecution is done upon criminal charges led by
the damaged party. This has a negative impact on the number and quality of
instituted proceedings the completion of which would help establish the motive
and grounds upon which the crime has been committed.
3. Despite the fact that the legislator has employed the concept of the so-called
open-ended list of protected characteristics in Article 39, paragraph 5 of the
Criminal Code of the Republic of Macedonia, the lack of explicit reference to
the characteristic of sexual orientation is a deciency of the legal framework
for ght against hate crimes, taking into consideration the fact that large
number of incidents are aimed exactly against persons belonging to the
LGBTI community or members of associations ghting for protection of the
rights of persons with different sexual orientation.
4. Furthermore, there are inconsistencies in the Law on the Determination of the
Type and Duration of the Sentence. Thus, under the category of “motives of
the crime”, national, religious and racial hatred are allocated 8 negative points,
while hatred on other grounds such as gender, age, sexual orientation, disability
is allocated 7 negative points, as aggravating circumstance. Such an intention of
the legislator does not seem logical, since it implies “degradation” of protected
characteristics, or as if it the legislator is saying that circumstances in which
the crime has been committed on grounds of a protected characteristic of the
victim such as gender, age, sexual orientation, physical or mental disability
are less aggravating circumstances.
5. This exercise, i.e. analysis has shown that in court judgments prejudices as
a motive for the crime are not sufciently elaborated, and that not enough
weight is given to the aggravating circumstances as dened under Article 39,
paragraph 5 of the Criminal Code of the Republic of Macedonia.
6. In addition to the previously identied problem, the lack of an active role and
participation of the damaged party in the entire criminal proceedings must be
underlined as another problem. In a large number of cases, except for initially
taken statements, victims are not summoned by the court to give their statement,
which would support the produced evidence of the motives and prejudices due
to which the crime has been perpetrated.
7. One of the most important problems identied under this exercise is the
insufcient examination and collection of relevant evidence for hate crimes
in the preliminary and in the investigative procedure by the law enforcement
bodies - the Ministry of the Interior and the competent Public Prosecutors’
Ofces.
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8. On the other hand, due to various reasons, the investigative procedures for
these crimes are longer than usual, which does not allow for a prompt reaction
to effectively deal with hate crimes. This, on its part has the negative effect of
sending a message to perpetrators that their unlawful actions are harder to be
incriminated and punished, sending as well the negative message to the public
that authorities cannot provide an appropriate response to hate crimes.
9. In the context of statistics and collection of information, it can be said that despite
the fact that there are established tools for recording crimes by the Ministry of
the Interior (Red Button system), at Public Prosecutors Ofces (Radio button)
and a specially designated eld to mark hate crime cases under the AKMIS,
the experiences thus far tell us that these are not functional tools and that they
have not produced the results expected when they were introduced. Hence, it
can be concluded that there is no functional system of recording hate crimes.
10. In the context of recording hate crimes, one of the identied problems is the
lack of a section on the format of the ofcial report lled in by police ofcers
which would serve to enter the possible motive, as well as a section about the
initial indications and motives for the perpetration of the crime, which should
serve as grounds for further investigation by the Ministry of the Interior and
by the competent Public Prosecutors Ofce, which manages, i.e. leads the
investigative procedure. Furthermore, there is an evident lack of professional
capacity and knowledge by police ofcer about this type of crimes and how
these cases should be processed.
11. The lack of a protocol of cooperation and coordination between the law
enforcement bodies, the justice system bodies, state institutions and the civil
sector is one of the problems that need to be overcome in building a functional
and efcient system for ght against hate crime, and
12. Competent authorities and their relevant representatives do not send a clear
public message of condemnation of hate crimes. Thus they are not demonstrating
their strong determination to counter this negative social phenomenon.
8. CONCLUSIONS AND RECOMMENDATIONS
Based on the elaboration of the contents of this exercise, the case studies, and
the identied problems in the system for ght against hate crime, the last section
of this paper offers conclusions relating to necessary changes and to improvements
of the system. These conclusions are formulated in a number of recommendations,
which inter alia cover legislative amendments, improvement of the procedure and
cooperation among relevant state institutions and law enforcement bodies, as well
as measures raising awareness about hate crime. The recommendations are the
following:
1. Amendments and supplements to the relevant legislation, including to secondary
legislation. As already stated, there are activities underway to nalize the draft
amendments to the Criminal Code. If such amendments are adopted by the
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Parliament then a number of other laws and secondary legislation will also
have to be amended. In addition, there will have to be activities undertaken
to design a Protocol of Cooperation between the Ministry of the Interior, the
Public Prosecutors’ Ofces and Courts, as well as activities for the design
of a Rulebook on procedures for police ofces, to be adopted as an internal
document of the Ministry of the Interior of the Republic of Macedonia.
2. Establishment of an efcient system of recording and monitoring hate crimes.
This recommendation must be rst implemented at the Ministry of the Interior
of the Republic of Macedonia, while advancing the tools for recording hate
crimes available at the Public Prosecutors’ Ofces (Radio Button) and under the
Automated Information System for Management of Court Cases. This would
help full relevant commitments in this area as an OSCE Participating State
and would help overcome one of the remarks which the European Commission
reiterates each year in its Progress Reports on Macedonia.
3. Strengthening the capacities of police ofcers, public prosecutors, judges
and lawyers for hate crimes, as well as the public message sent regarding
the ght against this type of crime. In addition to trainings and seminars on
legal matters, other measures are recommended, such as design of practical
tools, handbooks, publications of relevant judgments of the European Court of
Human Rights in Strasbourg and of the Court of Justice of the European Union
in Luxemburg, etc.
4. Raising the awareness about hate crimes among the civil sector and at the
public at large. Finally, there must be activities undertaken to present in
detail the consequences of this negative social phenomenon, with relevant
representatives of state institutions and representatives of political actors in
the country publicly condemning all hate crimes, all incidents prompted by
prejudices, and
5. The establishment of a system for assessment of the implementation of relevant
legislation for ght against hate crimes is one of the basic tools for prompt
detection of systemic problems, as well as for undertaking measures for their
overcoming, regardless whether it is a matter of legislative interventions or
regulating certain issues under secondary legislation or under other internal
documents of state bodies and institutions.
6. Developing an effective system of protection and support to victims of hate
crimes.
The author hopes that this exercise of mapping hate crimes in the Republic
of Macedonia has fullled its goal, by identifying the problems in the system
and presenting recommendations for overcoming such problems. It is especially
important that this mapping of hate crimes is disseminated among practitioners
in order that they can provide their comments and in order that this mapping of
hate crimes can be used in the future as a tool for training at other seminars and
workshops to be organized on this topic.
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In addition, considering the current developments and proposed amendments to
the Criminal Code of the Republic of Macedonia, this mapping could serve as the
starting point in assessing and evaluating the system for ght against hate crimes,
of the effects of the reform of the Criminal Code, serving as well as a tool to assess
the overall legislation applicable to this type of crime, which includes the Law on
Criminal Procedure and the Law on the Determination of the Type and Duration of
the Sentence.
BIBLIOGRAPHY
Angelova and Iliev versus Bulgaria, Application No. 55523/00, Judgment of
the European Court of Human Rights, 26 July 2007.
Constitution of the Republic of Macedonia. Ofcial Gazette of the Republic of
Macedonia, 52/1992, 31/1998, 91/2001, 84/2003, 107/2005, 3/2009.
Criminal Code of the Republic of Macedonia. Ofcial Gazette of the Republic of
Macedonia, 37/1996, 80/1999, 04/2002, 43/2003, 19/2004, 81/2005, 60/2006,
73/2006, 7/2008, 139/2008, 114/2009, 51/2011, 185/2011, 55/2013, 82/2013,
14/2014, 27/2014, 115/2014, 132/2014, 160/2014, 199/2014, 196/2015,
226/2015.
Hate crimes. (n.d.). Retrieved from Hate crimes: www.zlostorstvaodomraza.mk.
Identoba and Others v. Georgia, Application No. 73235/12, Judgment of the
European Court of Human Rights, 12 August 2015.
Kambovski, V., & Lazarova Тrajkovska, M. (2012). Prаvnа аnаlizа koncеpta
kаznеnog djеla iz mržnja i govora mržnje. OEBS Mission to Skopje.
Kotevska, B. (2013). Vodič osnove diskriminаciјe. OEBS Mission to Skopje.
Law on Criminal Procedure of the Republic of Macedonia. Ofcial Gazette of
the Republic of Macedonia. 150/2010, 51/2011, 100/2012.
Law on the Determination of the Type and Duration of the Sentence. Ofcial
Gazette of the Republic of Macedonia, 199/2014.
Law on the Prevention of and Protection against Discrimination. Ofcial
Gazette of the Republic of Macedonia, 50/2010, 44/2014, 150/2015, 31/2016.
Law on the Prevention of Violence and Indecent Conduct at Sport Matches.
Ofcial Gazette of the Republic of Macedonia, 89/2004, 142/2008, 135/2011,
27/2014, 154/2015.
OSCE ODIHR. (n.d.). Hate crime reporting. Retrieved from: OSCE ODIHR:
www.hatecrime.osce.org.
Police of the Republic of Macedonia. (n.d.). Red button. Retrieved from
Policija Republike Makedonije: http://redbutton.mvr.gov.mk/.
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SECURITY IMPLICATIONS OF HATE CRIMES
IN BOSNIA AND HERZEGOVINA
Velibor Lalić
1
Slađana Đurić
2
ABSTRACT
Hate crimes are acts of intolerance and prejudice, whereby the perpetrator
intends to hurt and intimidate someone because of their race, ethnicity, nationality,
religion, sexual orientation, disability or any other protected characteristic. One
of the specicities of these crimes are the consequences that they cause - a strong
negative psychological impact on the victim, instilling fear in the community,
creating social division and leading to escalation and violence. Previous research on
hate crimes lack research on implications of hate crimes in post conict, ethnically
and religiously divided societies. The subject of this paper includes the analysis
of the impact of hate crimes in BiH that are motivated by ethnic and religious
hatred. The research was mainly based on the qualitative research approach,
with the use of interviews, participatory observation, as well as secondary data
analysis. The ndings of this research indicate that hate crimes have extremely
negative consequences for the personal safety of victims and their families, and
extremely destabilizing effect on interethnic and religious relations. Overall, it can
be concluded that hate crimes in an unstable security environment where ethnic and
religious relations are troubled almost always represent a risk for the outbreak of
violence. For this reason, these offenses require special treatment by the authorities
of the formal social control.
Keywords: hate crimes, consequences, security, ethnic and religious violence,
Bosnia and Herzegovina.
1. INTRODUCTION
The subject of hate crimes has been on the agenda for more than two decades,
primarily in the sociological and criminological scientic papers. In that time,
the attempts of conceptualization of this phenomenon have been accompanied by
numerous debates regarding its key aspects. There have been intense discussions
1
Dr Velibor Lalić, European Defendology Centre, Banja Luka. E-mail: lalicvelibor@gmail.com
2
Prof. dr Slađana Đurić, Faculty of Security Studies, Belgrade. E-mail: djuricsladja@gmail.com
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about the motives of offenders, whether it was hatred or these crimes can also be
motivated by bias, intolerance or prejudice. (Hall, 2005). In addition, there have
been many academic discussions regarding the characteristics of victimisation,
for example, whether offenders attack their victims because they belong to a
group, regardless who the victims are as individuals. (Garland & Chakraborti,
2012). These, and many other dilemmas, take us back to the statement by Phyllis
Gerstenfeld (2004, p. xv): “hate crimes seem to be a topic of some interest to nearly
everybody, and yet few people really know much about them.”
Conceptual disparity resulted in a very diverse use of the term hate crimes.3 In
the broadest terms, in order for an act to be considered a hate crime, the perpetrator
of the crime must be motivated by hatred towards the victim because of the victim’s
afliation with a different social group. The essence of hate crimes is most often the
victimization of minorities because of their racial, national, ethnic, religious, sexual
or some other identity by the members of the majority.
Analysis of the existing related scientic papers offers an insight into a variety
of topics dealing with the basic conceptual issues on the justiability of categorizing
hate crime as a distinct type of crime (Levin & McDevitt, 1993; Green, McFalls,
& Smith, 2001; Perry, 2001; Grattet & Janness, 2001). Different dimensions of this
phenomenon have been examined, such as study of offenders (McDevitt, Levin &
Bennett., 2002; Phillips, 2009; Kielinger & Paterson, 2007) or the consequences
these crimes have on victims (Barnes & Ephross, 1994; Herek, Gillis, Cogan, &
Glunt, 1997; D’Augelli & Grossman, 2001).
Hate crimes carry a huge conict potential and thus represent a danger for the
society as a whole (Levin, 1999; Torres, 1999; Levin & Rabrenovic, 2001), which
is why the lack of research of security aspects of hate crimes is rather surprising. A
possible reason for this may be the fact that the concept of hate crime is relatively
new and is related to criminology. Within the security studies this topic is mostly
treated as national, ethnic, religious or racially motivated violence. The research
of security implications of hate motivated violence which criminologists call hate
crimes are certainly very important for a better understanding of the nature of this
phenomenon and the social context in which it occurs.
The security discourse of hate crimes requires adequate theoretical and
analytical framework. With different approaches to varying degrees by different
3
A broader presentation of all conceptual dilemmas certainly goes beyond the scope and objectives
of this paper, thus we will just reiterate here the denition of hate crime given by Barbara Perry
(Perry, 2001:10): “Hate crimes involve acts of violence and intimidation that are usually directed
towards already stigmatized and marginalized groups. As such, it is a mechanism of power, intended
to reafrm the precarious hierarchies that characterize a given social order. It attempts to recreate
simultaneously the threatened (real or imagined) hegemony of the perpetrator’s group and the
“appropriate” subordinate identity of the victim’s group. It is a means of marking both the Self and
the Other in such a way as to re-establish the “proper” relative positions, as given and reproduced by
broader ideologies and patterns of social and political inequality.”
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authors (Baldwin, 1997; Williams, 2012; Powell, 2008; etc.), the conceptual
analysis of security should offer answers to the following questions: a) what
is the reference object b) what are the values that are being protected v) which
security threats are we dealing with g) who are security providers, and d) which
means are used to ensure security. Thus broadly set analytical framework enables
a more comprehensive insight into security implications of hate crimes. Taking
into account the basic characteristics of hate crimes, we can say that the reference
object of security is collective identity, or the individual and social community they
belong to. Theoretically speaking, this is about societal security or the ability of the
society to preserve itself despite the changed circumstances and the new threats that
endanger its essential characteristics (Wæver, Buzan, Kelstrup & Lemaitre, 1993).
The specic nature of hate incidents and crimes lies in the fact that they have
large conict potential and that in communities with destabilized national, ethnic
or racial relations – can escalate into wide spread violence. Hate crimes undermine
the basic values of democratic society, the right to equality, safety, freedom and
cultural diversity.
Researching the security discourse of hate crimes is of special importance in
the nationally and religiously divided societies such as Bosnia and Herzegovina.
Throughout history, in addition to longer periods of peace and tolerance, Bosnia and
Herzegovina has been a scene of conict which, in addition to political reasons, have
had national and religious connotation. When examining destructive consequences
of the war (1992–1995), such as the suffering of people and destruction of property,
hatred as a subjective consequence must be taken into account (Milosavljević,
2004). In the favourable circumstances of peace, the hatred accumulated during
the war is taken out on the object symbolizing the other, antagonistic side, be it
the members of the other group, their property, or cultural values. With regards to
hate crimes in this region, generally speaking, crimes motivated by national and
religious hatred are dominant. (Lalić, 2013, Organization for Security and Co-
operation in Europe [OSCE], 2014).
Although there have been considerably fewer serious hate crimes in the last
years, it is important to remember the fact that every nationally or religiously
motivated violent act attracts great attention of the public and can signicantly
destabilize international and religious relations. It is therefore unjustied to
conclude that the absence of this type of violence means that a society is stable
and safe. According to Georg Simmel, the absence of conict within a relationship
cannot serve as an index of its underlying stability (Coser, 2007). Coser suggests
that the latent and manifested elements of relations should be equally addressed if
we want to analytically encompass its full signicance. In this context, the built-up
hatred is the latent element of the relationship, while discrimination, hate speech
and hate crimes are its manifest form. The absence of bigger conicts does not
equal the absence of feelings of hostility and antagonism.
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The subject of hate crimes is not given adequate attention in the Western
Balkans and the decit of empirical research is evident. The subject of our analysis
refers to the security threats generated by hate crimes in a nationally and religiously
heterogeneous and post-conict country such as Bosnia and Herzegovina. The
objective of this paper is to establish the type of threats, the security challenges,
crises and risks, whether it is the case of the manifest of latent endangering of
security.
Our research is focused on two main research questions: a) what are the
dominant manifestations of hate crimes in Bosnia and Herzegovina, and b) what
is their impact on personal safety and the safety of communities in Bosnia and
Herzegovina, i.e. what are the consequences of these crimes.
2. METHODOLOGY
The complexity of the concept and its insufcient theoretical foundation, the
lack of comparative research that would serve as the methodology model, and
the lack of data are the objective and restricting factors we have faced during our
research.
This paper contains a part of the ndings of a broader research project whose
objectives were to identify the prevalence and the characteristics of hate crimes
in Bosnia and Herzegovina and to assess the adequacy of responses of the law
enforcement bodies to hate crimes. For the purpose of this paper, we analysed
segments of research materials relating to the security implications of hate crimes.
This part of research was mainly based on qualitative research approach, using
interviews (semi-structured and open), participant observation, and the secondary
data analysis.
Three groups of respondents were interviewed. Firs, using the semi-structured
format, we interviewed persons connected to some aspect of hate crime due to the
nature of their job4 (22 ministries of interior employees5, eight people employed in
judiciary bodies as judges or prosecutors, and two OSCE experts).
The second group of respondents were persons living in ethnically mixed areas,
thus having personal experience on ethnically and religiously motivated violence in
the community they live in (51 respondents). For the selection in this group we used
quota sample with the aim to encompass a balanced participation of the members of
different ethnic and religious communities, and the adequate geographical scope.
The third group of respondents comprised 17 persons who have had personal
or family experience of hate crimes as victims. They were selected according to the
4
The interviews with the rst group of respondents were held in the cities of the Federation of Bosnia
and Herzegovina (Sarajevo, Mostar, Kiseljak, and Bugojno), and in Republika Srpska (Banja Luka,
Prijedor, Doboj, Bijeljina, and Srebrenica).
5
Interviewees: high-ranking police ofcials (2), police detectives (6), police ofcers (14).
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principle of non-random sample. We talked to them in an open format in order to
allow them to tell us there, often painful, experiences, in the least invasive manner
as possible.
With the consent of the respondents all interviews were taped and later
transcribed and encrypted for the purpose of full protection of the interviewee’s
identity6.
Using the participant observation method we collected information pertaining
to the direct work of the police: the expedience and the character of their response
to incidents, and the manner of their communication with the local population,
especially the victim. The researchers had the opportunity to accompany the police
patrol to the scenes of incidents and directly observe the actions of the police and
the reactions of the victims in given events. Upon obtaining consent, the police
ofcers informed the researchers on new ethnic or religious incidents and enabled
them be present at the crime scene investigation. This way we collected information
on seven distinct cases of police interventions in suburban returnee settlements in
Banja Luka.
In addition, during periodic planned visits to the respondent communities,
we monitored events that are potential security risks (sports events, religious
events), and in separately organized eld visits we had an opportunity to collect
data regarding the level of damage to the facilities that were the targets of
attacks (religious facilities, cemeteries, property). In the planning phase and the
implementation of the part of the research which included the application of the
participation monitoring, we primarily adhered to the principle of saturation i.e.
the eld visits were planned in accordance with the quantity and the quality of the
previously gathered data.
We applied the method of secondary data analyses on the existing databases
(relevant statistic institutions and agencies), as well as the institutional documents
(laws, court archives, documentation of the Ministry of Interior, international
organisations and NGOs.
6
Apart from the two biggest cities in BiH, Sarajevo and Banja Luka, the interviews with the
respondents in the second and third group were conducted in ethnically heterogeneous communities;
in East Bosnia with mixed Serb and Bosniak population (Srebrenica, Bratunac and its surroundings,
Zvornik, Janja, and Bijeljina), the area of North-western Bosnia (Prijedor, Kozarac and surrounding
villages), then areas with Bosniak and Croat population (in Central Bosnia: Bugojno and Kiseljak, in
Herzegovina: Mostar and its surroundings), and the towns in the Federation of Bosnia and Herzegovina
with the Serb returnee population (Drvar and Bosanski Petrovac).
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3. MANIFESTATION OF HATE CRIMES IN BOSNIA AND
HERCEGOVINA
Numerous reports related to hate crimes research cite the lack of the exact
data on hate crimes as a common methodology problem (Nolan & Akiyama, 1999;
Cronin, McDevitt, Farrell, Nolan, 2007) making it difcult to conrm ndings
on prevalence and characteristics of this type of criminality. The most frequent
problems in documenting and assigning an adequate legal qualication of these
criminal offences are: the lack of capacities of the institutions in charge, the lack
of experience in recognizing bias motive or prejudice, and often ambiguous legal
denitions. Additional problem with documenting hate crimes in Bosnia and
Hercegovina results from the lack of methodology for statistical data follow up of
these crimes. Another problem is the attitude of the police, prosecutors and courts,
who do not show sufcient understanding and willingness to conduct thorough
investigations of bias motive for the commission of a criminal offence. Bias motive
is neglected because the police in the preliminary investigation do not take into
account hate crimes indicators which indicate that a criminal offence is motivated
by national, ethnic or religious hatred. Therefore, the consequences are that criminal
offences are mainly qualied as malicious mischief, bodily injuries, causing general
danger, or other criminal or minor offences.
Analysing the available data we can but sum-up the trends in the manifestation
of hate crimes in post war Bosnia and Hercegovina. Our ndings reveal that in the
rst years after the war (1992–1995), violence with national or religious motives
was frequent, and included the most serious criminal offences. Gradually, the
intensity of crimes decreased and in recent years they do not make up a signicant
component of the general criminality structure. However, as previously stated, the
number of committed crimes is not important and the statistics is not the criteria
based on which we could assess the overall social importance of the problem,
having in mind the specic consequences and social risk of this type of crimes.
In the period after the war, these crimes were mainly directed against returnees
-members of the constituent people (Bosniaks, Serbs and Croats) and to the lesser
extent against the members of minority ethnic or religious groups (Lalić, 2013;
Lalić 2014). The crimes were mainly committed in the period of intensive return of
refugees and displaced persons, as well as during religious holidays, ceremonies or
commemorations, during sports events and at the time when people from Diaspora
visit the country. The most critical period was during the massive return of refugees
and displaced persons in the rst years after the war. The majority of criminal
offences with the gravest consequences were committed in that period of time
(mainly murders, explosions, major damages of religious facilities or gravestones).
Nowadays, the most frequent offences are stoning of religious facilities
(mosques and churches) causing minor material damage, desecration of gravestones,
ghts, verbal insults and offensive grafti. There is still a tendency of hate crimes
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and incidents being mainly committed during religious holidays, commemorations,
during and after football matches, as well as during political events important for
the community, such as elections or at the time of increased political tensions with
nationalistic undertones. Hate crimes are present across Bosnia and Herzegovina
and victims and perpetrators come from all three constituent peoples (Bosniaks,
Serbs and Croats). There are also attacks on the members and property of the
minority ethnic groups, such as Roma, Jews, Albanians, as well as the attacks of
the minority religious groups such as Jehovah’s witnesses and Adventist church, as
well as physical attacks on members of sexual minorities (Lalić, 2013; Lalić, 2014).
In the following section we will present the most frequent manifestations of
hate crimes in the post-war Bosnia and Hercegovina. These are as follows:
- Murders,
- Causing general danger: explosions, use of rearms, arson,
- Violent behaviour: violence in sport and about sport, violence during
religious,
o holidays, ghts
- Property damage: damaging religious facilities, gravestones, damaging
private,
o property
- Insults and threats,
- Rape, and
- Cases with mixed, multiple motives and mistaken perception.
Lacking the exact statistical data, we will provide an estimation of the
representation of each such hate crime manifestation, while the manner of
perpetration will be illustrated through the research cases and the respondents’
statements.
3.1. Murders
Given the complexity of documenting bias motive, the lack of adequate legal
framework, unharmonized jurisprudence, and limited data access - it is obvious that
it is difcult to determine how many of the total number of murders in Bosnia and
Herzegovina was motivated by ethnic or religious hatred. In practice, these cases
were recorded as causing general danger (mainly by setting up explosive devices)
or causing serious bodily injuries with mortal consequences.
Murders are a very rare manifestation of hate crimes when compared to all
the crimes that we can consider hate crimes. Murder of a representative of another
ethnic group is always followed by public disturbance and inter-ethnic tensions.
The community whose member was murdered sees such a case exclusively as a
crime committed out of national or religious hatred.
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Based on the analysis of research materials it can be said that murders
were mainly committed during the rst years after signing of the Dayton Peace
Agreement, at the time of a more intense return of the population to their pre-
war homes. We can justiably assume that the murders recorded at the time were
motivated by national or religious hatred.
In relation to murders with bias motive a case from Drvar (with predominant
Serb pre-war citizens), taken-over by Croat armed forces in autumn 1995, is
especially important. Serbs had left the town. Several Serb civilians who remained
in Drvar were murdered. Even after signing of the Dayton Peace Agreement, the
same pattern of behaviour towards Serbs who had not left Drvar continued. One
respondent from Drvar remembers murders after signing of the Dayton Peace
Agreement:
The Trninić’s were murdered. They returned and, one night, they were
murdered… They came during the night, banged on the door. When they
opened the door, they were murdered… Perpetrators were never found.
Thorough investigation was never conducted. This stopped the return process
for the next two-three years… (D. A., a 56 year old returnee)
In the rst years of peace, murders were also committed in central Bosnia,
which were, according to the respondents, also motivated by ethnic hatred. These
were mainly attacks on Croat returnees and representatives of the police of Croat
ethnicity. At that time murders were also committed in Republika Srpska, especially
during the intensive return process. There was major resistance to the return process
and violence against returnees was frequent. This caused fear among the returnees,
who then left the area in search of a safer place to live, mainly moving to the areas
where their ethnic group is in majority.
One of the most severe hate crimes committed in Bosnia and Herzegovina is
murder of three members of the Anđelić family on Christmas Eve of 2002 in the
village of Kostajnica, near Konjic. Muamer Topalović, a Bosniak perpetrator, was
convicted to 35 years of imprisonment for murder out of religious or national hatred
(Supreme Court of the Federation of Bosnia and Hercegovina, 2004). Although
murders are rarely committed at present, they are always followed by great national
tensions. Such example is the murder of a Bosniak returnee in Kozluk, Eastern
Bosnia, by a Serb, on Orthodox Easter in 2014. The murder was preceded by a
war-related argument and the victim’s rejection of Easter egg offered to him by the
perpetrator (Popović, 2014).
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3.2. Causing General Danger
3.2.1. Explosions
According to the report of the Helsinki Committee for Human Rights in Bosnia
and Herzegovina HCHR–BiH] (2002), setting-up and throwing explosive devices
on property was more frequent during the intensive return of population. Some of
these explosions resulted in death. In comparison with the property of returnees,
religious facilities were rarely the aim of attacks. Since this is an extreme type of
intimidation, each explosion or a gunshot brings unrest among the members of
minority communities. The use of explosive devices can often be explained by the
quantity of weapons left after the war in the hands of civilians on the one hand,
and on the other, by the opposition towards the return of population to their pre-
war places of residence. Frequent explosions, especially targeting the property and
religious facilities of minority communities led to desensitization of people towards
the victimisation. Explosions have become a regular occurrence that people got
used to. A comment of a Bosniak woman from Banja Luka illustrates this:
There were no serious inter-ethnic problems. At least I did not have any
problems. Indeed, a neighbour across the street used to swear ‘majku balijsku’
and once he threw a bomb in a yard, but everybody knew what he was like (A.
M., 46 years old returnee).
One of the methods of intimidation and creating unrest among returnees were
attacks on their religious facilities. According to the report on human rights by
Helsinki Committee for Human Rights in Bosnia and Herzegovina in 2002, the
most serious incident happened in Ključ, near Gacko, where a reconstructed mosque
was destroyed. An explosive device was set twice in the newly built mosque in
Mujkanovići, the village of Kozaruša, nearby Prijedor, and then ahead of one of the
biggest Muslim holidays, Ramadan Eid, an explosive device was set in the Medžlis
building where the local Imam lived with his spouse. The explosion damaged the
building (HCHR–BiH, 2002). There were also incidents recorded in the vicinity of
the Orthodox religious facilities.
At the time, attacks on cultural and historical monuments with the aim
to destroy the memories of important events, which are a part of the collective
historical memories of local population, were frequent. A monument is a symbol
of resistance, pride and remembering victims, therefore it has a deep social and
psychological importance and meaning for the members of a community. Violation
of those meanings represents the violation of collective memories, violation of
something which is important and valuable for that community. A respondent from
Drvar, predominantly a Partisan area in the World War II, speaks about destruction
of Partisan monuments:
They have destroyed all Partisan monuments. They have also destroyed the
central partisan monument in this area. It is still down, even today. (D. A., a
56 year old returnee)
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In addition to attacks on private property, mosques and churches, there were
also explosions in facilities with social and political importance for a community,
or better said the remnants of a community trying to create better conditions for the
new life. A Bosniak respondent from Prijedor speaks about the rst days of return
and the methods of threatening and spreading fear:
There were bomb attacks. After return, we have renovated the local community
premises. They immediately threw bombs and destroyed all we have done.
And it had always been like that. No one ever died as a result… at least that I
know of. (Š. J., a 53 year old returnee).
Research analysis reveals the evident decrease of such offences in comparison
with the rst years after the war. Explosions as a form of intimidation have become
very rare.
3.2.2. Use of rearms
Firearms were also used with an aim to intimidate returnees. Lately, such
intimidation, according to the respondents, is very rare. A rather characteristic
way of intimidation, according to the respondents, was hunting late at night using
automatic ries close to the returnees’ areas.
When I returned to Bratunac, I had problems. I never slept at home. My house
was the rst one built in my local community. There was also some shooting at
the beginning; however it calmed down afterwards. There was shooting over
my house, at the hill. They used to justify it with buck hunting - at night, with
automatic ries!? I’m sure they wouldn’t have been shooting had I left the
house, however I had not, let them shoot! It lasted about a month and then it
died down. (J. B., a 57 year old returnee).
In the post-war years there were cases of shooting from rearms in the vicinity
of religious facilities. It does not happen often; however, when it does, it triggers
great disturbance of public. Some religious Orthodox facilities were target of
shooting from rearms. (Č. Đ., a 40 year old local citizen)
OSCE reports conrm the attacks on Orthodox religious facilities in Sarajevo
(OSCE–BiH, 2009). A characteristic example was an incident where a rearm was
used nearby a mosque in Vrbanja, Banja Luka. The incident created indignation
of Bosniaks and demonstrated to what extent such incidents represent potential
danger for peace, stability and coexistence in the ethnically heterogeneous areas.
One respondent witnessed the incident:
We had a case in 2006, when a vehicle stopped and a person from the vehicle
started shooting towards the mosque. Then local citizens blocked the main
road Banja Luka-Kotor Varoš. We went to the street because the police never
discovered the perpetrators of about 50 differently committed hate crimes.
Around a hundred of us or more went on the street and blocked it. It lasted
about two-three hours; we did not want to move demanding the arrest of the
perpetrator. The licence number of the vehicle used by the perpetrator was
known... (A. Č., a 28 years old returnee)
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3.2.3. Arson
Property arson is also related to the period of intensive return of population.
In time the number of arsons decreased, happening very rarely recently. Research
analysis reveals different types of arson.
The rst type is burning down returnees’ houses in order to prevent the return
process. It happened during the intensive return period but at present very rarely.
The second type is violent reaction of temporary occupants of the displaced
persons’ property which should have been returned to their pre-war owners. Most of
them did not want to return to their pre-war areas for safety reasons, although their
property was not damaged. Such situations created a lot of tensions and triggered
incidents and violence.
The third type is burning down the returnees’ outbuildings. According to
the respondents, these were isolated, individual cases that were not organized as
systemic policy of pressure with an aim to prevent return.
The fourth type is arson and violence in public places before, during and after
public gatherings, religious holidays or ceremonies.
The fth type is cases with mixed motives or mistaken perceptions. These
are arsons where primary motives are property disputes, a cause of frequent
provocations, incidents and property damage, but where the circumstances and the
manner of perpetration indicate ethnic-based hatred.
3.3. Violent behaviour
Violent behaviour in terms of ghts or causing signicant unrest based on
ethnic or religious hatred happens occasionally, and is almost always related to
certain events, such as sporting events or other public gatherings. In addition, some
isolated cases of violent behaviour which are motivated by national, ethnic or
religious hatred have been observed. These cases are usually not connected to certain
events that can be so-called ‘triggers’ for the outbreak of violence. Violent acts have
been recorded against members of ethnic or religious minority communities (more
specically against Roma and Wahhabi), that occasionally resulted in death. In
the communities whose members belong to different ethnic backgrounds, cases of
juvenile violent behaviour are very frequent.
3.3.1. Violence in sport and motivated by sport
There are numerous examples of violence at football games and violence
caused by the upcoming games. Violence motivated by ethnic hatred happens even
in local football games and tournaments. One of the respondents tells about one
such event:
There was a football tournament in Vrbanja in 2004. It was interrupted when a
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mass ght broke out between Serbs and Bosniaks. Terrible images. The police
managed to prevent the situation from escalating. Whenever people are in
divided groups, these problems occur. This happened by accident, and alcohol
played its role as well. It was during the summer. There was a group of around
30-40 Serbs and on the other side 30-40 Muslims. The game was ongoing and
it all happened in a second – they charged at each other and a mass ght broke
out. As a consequence there were several injured, one guy’s nose was broken,
and other had light bodily injuries. (A. Č., a 28 year old returnee)
In addition to sports events played within the state borders, the games played
abroad in which Bosnia and Herzegovina does not even participate are a threat to
inter-ethnic relations if these are sports teams or national teams with which national
groups from Bosnia and Herzegovina identify in terms of culture. An example
can be a European Championships game between Turkey and Croatia played in
Vienna on 20 June 2008. This sports event caused riots and conict in Bosnia
and Herzegovina in the communities where both Bosniaks and Croats live. One
respondent from Bugojno describes these events:
One spark is sufcient. Something irrelevant, some football game, which
will stir up the passion. When it comes to Bugojno, during the European
Championships…even now when Croatia and Bosnia are playing…When
Croatia played against Turkey, half of Bugojno was wearing Turkish jerseys
and ags, and the other half Croatian. Then ghting broke out. I heard from
my at people in cafés saying: “Let’s go to Croatian cafés to beat them up”.
And the others were the same. One game, one event, something irrelevant is
sufcient for this to transpire (S. Č., a 44 years old local citizen).
3.3.2. Violence during religious ceremonies
Signicant violence during religious ceremonies is rare compared to other
incidents, and it mainly occurred immediately after the war. In the post-war period,
one characteristic event is the attempt to lay the cornerstone of Ferhat Pasha Mosque
in Banja Luka on 7 May 2001. On this occasion a large number of protesters
gathered, there were disturbances and stones were thrown on the worshipers. Several
Bosniaks were injured severely, and one person died as a result. Huge damage
was caused on the vehicles used for the transport of the worshipers and guests,
among others, members of the diplomatic corps and international organisations.
One of the chiefs of the Public Safety Centre Banja Luka describes the scope and
the consequence of this event:
This was the rst attempt of laying the cornerstone when a massive gathering
occurred, which resulted in the attack on the gathered worshipers. A riot broke
out and on this occasion one person died. I think he was hit in the head with
a stone. He died seven days later. A huge material damage was caused on the
vehicles and busses used to transport worshipers from the region (Ž. D., 48
years old, police chief).
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This case attracted a huge public attention as an extreme example of religious
intolerance. Respondents talked about cases of violence during religious ceremonies
in the post war period (V. E., 39 years old, local citizen), but the “Ferhadija” case
is an example of the pattern of religious intolerance that happened in the critical
periods of the Bosnia and Herzegovina’s history.
3.3.3. Fights
Ethnically-motivated ghts are not rare in mixed communities. Some of
them have a concrete cause, mostly ethnic-based insults, or they happen without a
concrete cause. As an example of a ght with a cause, one respondent from Banja
Luka described the following case:
It was New Years Eve and a car with a foreign registration plates stopped.
These were people from Switzerland, Serbs, they stopped in front of a mosque
and they urinated in the graveyard. Some young men were passing by, and
asked them to leave, but they refused. After that, some people gathered and
a ght broke out. They came from Switzerland and had this desire or I don’t
know how to call it, to desecrate, to destroy, and it ended like this and they
never came back. Nobody knows them. They did not know anybody. It seems
they are originally from Kotor Varoš. It happens; it is the same in Federation
with Serb returnees. Exactly the same situation, the same things happen. (A.
Č., a 28 years old returnee)
In Central Bosnia Canton there are ghts between Bosniaks and Croats, often
without any concrete cause. One respondent comments one such a case:
A month ago a huge ght broke out. One group left a café they were in, and
went to a Croatian café to provoke a ght. This was qualied as disturbance
of public peace and order, but it is ethnic hatred. One spark is sufcient. Of
course, as time goes by, this happens less frequently (S. Č., a 44 years old local
citizen)
Cases of violence among minors are very frequent in mixed communities. A
respondent from Mostar is describing cases of peer violence:
There were some cases when older juveniles, let’s say high school students,
arrange a meeting or a ght via Facebook. Boys would come to Španski trg,
since Mostar is divided to Eastern and Western part, so these boys from the
Eastern side come 200-300 meters into the Western side and nd somebody,
just anybody, beat him up and return to their side. And then, as expected, the
other side reacts, they go to the other side, beat somebody up and go back.
There were around 4-5 such cases, and they were processed, so now everything
is calmer. There is no other motive, beside ethnic hatred, (D. P., 38 years old,
criminal police inspector).
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3.4. Property damage
Property damage is a very common way of expressing national and religious
hatred. Mostly religious facilities are at risk, as well as gravestones; houses less
frequently. Most respondents consider that breaking windows, fences and writing
grafti is mostly causing minor damage. On the other hand, they also think that the
real gravity of these incidents lies in the negative consequences reected in public
opinion, especially the communities whose facilities were damaged and whose
religious feelings were hurt. During the research it was noted that there is a decline
in these incidents compared to previous years. However, they still happen often
during religious holidays or sports events, but also at other time as well. Attacks on
property of minority communities have a declining trend compared to the time of
intensive return of refugees and displaced persons.
3.4.1. Damaging religious facilities
In these cases mostly the windows, fences or religious symbols are damaged.
Most respondents, police ofcers, state they did not have cases which would cause
protests or serious tensions. They think in most of the cases it was not the case
of serious religious or national extremism. Most respondents from the minority
communities state that the number of these incidents is higher than reported,
although they conrm these incidents are much less frequent compared to previous
years.
One respondent from Banja Luka, a police ofcer, said that most of the Islamic
religious facilities were destroyed during the war in the city itself. Before these
objects were renovated, there was violence against Bosniak and Croat returnees.
After the reconstruction of these facilities, this type of violence targeting religious
facilities had also started.
There are no exact records on the attacks on religious facilities, because mostly
these attacks are qualied as Malicious Mischief or they are just registered as
security event (M. Z., 54 years old, police inspector). Such practice of the police is
making it impossible to see real scope of the manifestation of such type of religious
hatred.
When someone breaks a window on a religious facility or damages it, the
police are ling a report for property damage. These offences come under the
property crime, hatred as a motive is not recorded, thus in the ofcial statistics
the motive of hatred is not visible. Therefore, in practice, it is impossible to
analyse how many of these offences actually happen. (M. P., 54 years old,
police inspector)
Typical examples that occur in practice are cases of damage to Catholic
religious facilities in Banja Luka. In Federation of Bosnia and Herzegovina, attacks
on the Orthodox religious facilities have been recorded.
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3.4.2. Damaging gravestones
Destruction and damaging of gravestones happens often. The most frequent
motive is ethnic or religious hatred. However, in practice, there are cases when
perpetrators are motivated by greed, not hatred. then marble slabs and copper are
stolen from gravestones. It can be assumed that some perpetrators are motivated by
ethnic or religious hatred, in addition to greed. Attacks on gravestones usually cause
huge public disturbance in the communities whose gravestones are destroyed, since
a sacred object was destroyed. They see it as a manifestation of extremism and hate.
Damage to a grave causes a strong emotional reaction, and even when the motive is
evidently greed, tacitly it is assumed that the motive is hate. Media often use these
events to manipulate facts, and present it to the public as an attack on one of the
constitutive peoples, and advocate the theory that this particular peoples is under
threat. These cases occur across Bosnia and Herzegovina, and targets are graves of
all religious communities.
3.4.3. Damage to private property
Compared to the damage of religious facilities and graveyards, attacks on the
property of returnees are less frequent. This is the opinion of almost all respondents.
When it comes to the property of returnees, mostly smaller damage is caused on
housing facilities, such as broken windows or shop windows. In such cases the main
intent of the perpetrator is intimidation, but considering the manner of commission
and the implements used it is inevitable that, beside intimidation, there is always
a material damage on the business or housing facilities. This used to happen in
the time of intensive return of population. In time the frequency of these incidents
declined.
3.5. Insults and threats
Insults and threats are very frequent. Insulting grafti are written on the housing
facilities where returnees live, especially in urban areas, than on religious facilities,
schools and other public institutions and places. Targeted communities consider
grafti as a symbolic message of hate, an insult, intimidation and sometimes a
direct and real threat. Some people see these messages as a tool of pressure to leave
that community. Most of grafti are written during the night, so that perpetrators
are not identied and caught.
The respondents also talked about car processions in the returnee areas, mostly
after football games (S.S., 63, returnee; A. H., 57 years old, returnee). However,
this happens on the summer, when the people from Diaspora are visiting. These are
provocations from the moving vehicles, mostly in evenings or at night.
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3.6. Rape
The criminal offence of rape which is motived by ethnic or religious hatred
is the rarest manifestation of hate crimes in Bosnia and Herzegovina. Two such
cases were recorded during the analysis of the collected material. According to the
Organisation for Security and Cooperation in Europe, in July 2008, one potential
case occurred in Brčko. The charges state that a 20 year old Bosniak woman and a
Bosniak man put a Serb woman in their car, took her to a remote road where they
stopped the vehicle, threaten her with a fake gun and took her purse. Then Bosniak
woman pointed the gun into the victims head, ordered her to take off her clothes
and then the man raped her. During the rape, he uttered ethnicity - based insults
(OSCE–BiH, 2009). The other case occurred on 11 January 2013. (Hideous crime
in Modriča: the perpetrator broke into a house and raped a 70 year old woman,
2013) in Pećnik, Vukosavlje Municipality. A Serb perpetrator committed armed
robbery and then raped a Croat woman. The District Court in Doboj sentenced the
perpetrator to seven years and six months of imprisonment.
The methodological difculties in collecting data should also be considered,
therefore, there is a possibility that there are more of these cases. However, based
on the available data, it can be said it is the rarest manifestation of hatred.
3.7. Mixed motives and wrong perceptions
During the research it was noticed that there are criminal offences and incidents
that are only partially motivated by national and religious hatred. This often happens
in cases with unresolved property issues and the sides in the conict are of different
nationalities. In these situations the case gets an ethnic or religious character
although the nature of conict is different. In addition, mistaken perceptions have
also been observed, as well as a subjective feeling of minority groups being under
threat even when criminal offences do not have an ethnic or religious motivation.
When members of minority communities or their property are attacked, they
consider it an ethnic or religious hatred and a pressure to move, although it is
obvious that these offences and incidents have different motivation. The subjective
feeling of being under threat because of their ethnic or religious afliation is very
strong. Mostly these are property crimes – thefts, breaking and entering of renewed
houses where nobody lives, or stealing brass and marble from graves. Members of
community are especially agitated if a religious facility is damaged or someone is
killed.
The complexity of social relations in Bosnia and Herzegovina and specic
way of life in multi-ethnic communities before the war suggests to what extent
some incidents are motivated by ethnic or religious hatred and to what extent by
some other reasons. On the surface most incidents and disputes seem to be the
consequence of ethnic or religious hatred. However, it often happens that at the root
of such relationship lies a conict between families living next to each other, and
it is motivated by other reasons such as ordinary disagreement or bigotry. These
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cases are very present in practice. One of the respondents, a police ofcer, says the
following:
Somebody will say: I will do something to my neighbour because I hate him,
and I hate him because he is a Croat or a Bosniak. No, there might be a different
explanation of the relationship between those families. Maybe they were best
men and they had a ght about land or something else. And then they say the
reason is nationality. These things happen. (Ž. D., a 48 year old police chief)
These incidents are specic for the returnee areas. Neighbourhood ghts,
insults, threats and breaking windows are common. It is not rare that neighbours
took over their neighbours’ land and built on it during the war, so when the proper
owners returned, property issues occurred. Therefore, the basis of the conict is not
ethnic or religious hatred but property issues.
The situation is similar in cases when there is a property dispute related to
some religious facilities. The population of entire villages was collectively moved
during the war and after the Dayton Peace Agreement was signed. Serbs moved
collectively to Republika Srpska from the area that was allocated to the Federation
of Bosnia and Herzegovina. Displaced persons moved mostly to the Bosniak
property in Republika Srpska. They built their religious facilities there. After the
war, when returnees led property claims to get their property back, new problems
and tensions occurred. A characteristic example is the Orthodox Church built on the
private land of a Bosniak woman, Fata Orlović, in Konjević Polje, where religion-
motivated incidents were recorded several times.
Individual cases of arson are also examples of mixed motives, especially if
there are unsolved property relations, i.e. attractive locations for construction, and
the land is owned by members of minority population. There is a pressure on them
to sell houses and land. The following is one of the examples:
Molotov cocktail was thrown from a terrace through the window in 2006 in
broad daylight, at half past one. The terrace was wooden so it burst into ames.
If it was during the night, everything would burn down, since it is a one-storey
house. Now it just stands there, a ruin. Somebody put them up to it…because
there are two acres of land behind the house, good location; now popular…the
ownership of the house is disputed. Allegedly, a woman bought the house for
50.000 KM, but she bought it from my cousin, his share. We were co-owners.
(B. K., a 68 year old returnee)
Some criminal offences, incidents and events are not motivated by ethnic or
religious hatred. Lacking accurate information, the injured community sees these
events as those with ethnic or religious motivation, and, as a rule, believe that the
attackers belong to other ethnicity or religion. They believe they are a target of an
attack only because of hatred. These events are very disturbing and cause a strong
emotional reaction of the community members, so they cannot objectively perceive
the facts that eliminate elements of national or religious hatred. These are mostly
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cases of property theft, damaging of religious facilities or murders of returnees.
Upon examining the facts the ethnic or religious motivation is excluded. Regardless,
these events, or more precisely, the perception of these events, cause suspicion and
upset intern-ethnic and religious relations. Majority of cases of wrong perception
are related to the theft of returnees’ property. Protection of personal and property
safety of the returnees is one of the priorities of the police. This is a very sensitive
issue, because if the police do not manage to protect returnees and their property
the problem acquires a political dimension. This is especially true for renovated
property where nobody lives, or lives there occasionally. Such property is often a
subject of theft. The perception of victims is that the perpetrator is exerting pressure
on them because of their ethnicity in order to sell their property and move away,
rather than a greed-driven act. Since the property is not protected, victims often
do not nd out about the offence until much later since they do not live there, so it
usually takes a long time for it to be reported to the police, without which the police
have no legal grounds to act. Such circumstances work in favour of criminal groups
who are involved in this type of crime.
When it comes to wrong perceptions, other targets of theft are churches or
mosques. These are mostly thefts where perpetrators break and enter a religious
building and steal valuable items, money or construction material. Given the
manner of perpetration, it is evident that the motive is greed. However, members
of religious communities assign great signicance to these events, and they want to
know who did it and why (LJ. B., a crime police inspector)
It is not rare that the media report on these events without establishing the
facts. Biased media with subjective information create a perception that certain
ethnicity or religion is under threat. In addition to subjective information distributed
by the media, there is a problem of rumours which lead to turmoil of the minority
communities. This indicates that inter-ethnic and religious relations are a very
sensitive issue in Bosnia and Herzegovina.
When a murder is committed in a mixed community where inter-ethnic
relations are ruined, especially when dealing with returnees, the tensions occur
and the rst perception of the community members the victim belonged to is that
the motive for the commission of the crime is the ethnic background of the victim.
4. CONSEQUENCES OF HATE CRIMES IN BOSNIA AND
HERZEGOVINA
Hate crimes have more serious consequences in comparison to other offences
they have an extremely negative psychological effect on the victim, they cause
fear, social division and escalation of violence (OSCE ODIHR, 2009). The
consequences of these criminal offences in Bosnia and Herzegovina are primarily
psychological in the form of fear provoked both in the affected individuals and
other members of the community. Then there are social consequences, manifested
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through deepening of the existing group divisions inevitably leading to ruining
inter-ethnic relations. What is especially characteristic for Bosnia and Herzegovina
is the process of demographic changes in terms of gradual emigration of minority
group members from certain areas, which leads to further ethnic homogenisation. In
addition, hate crimes are a threat to peace and stability because if the environment
is unstable in terms of security there is always a risk of the eruption of violence.
Victims are suffering psychological consequences; they feel fear, anxiety and
insecurity. Even some minor offences such as ethnicity or religion-motivated
property damage, verbal insults, threats and insulting grafti have a long-term
negative effect on victims. The respondents who had a negative experience describe
the event with a lot of emotions and details, even if it happened years ago.
Each act of violence motivated by hatred has a strong impact on the targeted
community. Community members are very interested in what happened and how,
and what further consequences can be implied by a concrete event. These events
are long remembered and recounted. If, for example, gravestones are damaged
although they are very distressed, the community members believe they are
powerless to do anything. One respondent described his feelings after one such
event: “I feel bad because of it, but one feels helpless” (D. L., a 52 year old local
citizen) One returnee, whose house and business premises were damaged on few
occasions shared his experience: “I felt like somebody slapped me in the face for
no reason” (B. M., 32 years old, returnee). Some respondents think it is more about
humiliation and bitterness than fear when it comes to their safety.
Writing insulting grafti on public surfaces is also causing disturbance in the
community insulted by the grafti:
When they see grafti like: “Go away”, or “Knife, wire, Srebrenica” (B/C/S:
„Nož, žica, Srebrenica“), it is normal that you feel affected. We all know what
happened in Srebrenica, and see this as a direct threat. (S. A., a 32 year old,
policeman, returnee)
The respondent, a returnee whose property was damaged on few occasions and
who received threats described how it affected him:
It is not pleasant when it happens. On one occasion, there were seventeen of
us in the house, and a group of men arrived yelling: A..., tonight you will not
sleep! It was a really bad experience (A. H., 57 years old, returnee).
Individuals who have been victims of ethnicity or religion motivated violence
said that distrust and certain amount of fear remain long after the attack. They see
these attacks as a direct and serious threat to their personal safety, because they
belong to a certain ethnic or religious group. One respondent from Banja Luka, a
victim of violence, described his experience and consequences it had on him:
I have to leave to nd my peace. I came, but I did not nd peace. I was told
what would happen if I return, and that was exactly what happened. I was in
a situation that ve children between 18 or 19 years old attacked me. I was
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in a situation to take out my gun to protect my life. I don’t even know how I
managed to stop myself from shooting at them. I tried to talk my way out of
it, to threaten them a bit. Those children backed off when they saw the gun.
However, I asked myself how long this is going to last? Tomorrow some other
child will come, and then another, then another, one day I may have to use
my gun. And then what, I would have to go to jail! Then I decided to take my
passport and go abroad. (F. S., a 40 year old returnee)
Some respondents accept the existing state as normal, as a part of their lives.
Getting used to victimisation and accepting deviant as normal is a consequence
of previous negative experience, especially during the war. Compared to the
experiences in the war, current events have less signicance. Another reason is the
frequency of these events and the lack of responsibility, which gives an impression
that this is a common thing and cannot be changed under the existing circumstances,
but only accepted. One respondent, a Bosniak returnee to Bratunac, described his
life of a returnee:
It is very beautiful in Bratunac, there is some… they write: Nož, žica, Srebrenica
(knife, wire, Srebrenica), it appears overnight but it is also removed fast. It
was like that, there were provocations, but I think it happens on all sides. You
endure it, things settle… (J. B., a 57 year old returnee)
One of the most common ways of expressing religious hatred is breaking
windows on religious facilities. One returnee in Banja Luka told us about window
being broken on a mosque in his settlement:
People condemn it, although most of them don’t even notice it. Previously such
cases were reported to the police, after that the police would come investigate at
the scene of the crime. Now the windows are boarded, there is no more money.
People are not even commenting on it anymore. It has become normal... of
course it is not normal but what can you do... (S. E., 29 years old, returnee).
The consequences are visible mostly through the creation of a greater social
distance between different ethnic and religious groups. Each incident is causing
greater group cohesion of the community whose member was attacked and the
distrust towards other ethnic or religious group is increased. It is interesting to
notice that the people who live somewhere else are more afraid compared to
those who live there. On the one hand, it can be explained by getting inadequate
information, rumours, and media exaggeration of some events. On the other, it can
be assumed that the members of minority communities living there are getting used
to the existing circumstances:
Persons coming from abroad are scared ten times more. They are more afraid.
So when they come and plan to have their vacation for three or four weeks,
they cut it in half. To leave as soon as possible. The inhabitants living here
constantly, including myself, are used to it. It is like that! (F. S., 40 years old,
returnee).
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Special problem is emigration of minorities from certain areas as a consequence
of continuous intimidation. Every act of violence motivated by ethnic or religious
hatred prompts the remaining inhabitants to question their decision to live in such a
community. Intimidation, murders, explosions and setting re to houses at the time
of intensive return had an especially negative impact. One respondent is telling
about the consequences of a murder of a returnee in central Bosnia:
...it was a murder of a police ofcer in Travnik under whose car was planted a
bomb. Also one more police ofcer was killed in a similar way…This all had
a negative impact on the return of Croats. The family of one of the murdered
police ofcers had returned previously to Travnik, but after that event they left
and never came back (V. E., 39, local citizen).
One respondent commented on how some inter-ethnic incidents inuenced the
returnee population in Srebrenica:
There was fear, some who were in town and were obtaining some documents
left the same day, and those who returned left temporarily to the Federation.
Until things settled. (H. M., a 46 year old returnee)
One respondent from Sarajevo claims that there is a direct connection between
attacks on returnees, religious facilities and graveyards with emigration of the
minority population from that area. He explained it:
The best indicator is to check the ads in newspapers; you can see that mostly
Serb property is being sold. The recession stopped the emigration of Serbs
from this area. If there was no recession, I think that the remaining population
would reduce by half; they would sell their property and leave (Č. Đ., 40 years
old, local citizen).
The same respondent is describing the reaction of the population on the
occasion of destruction of gravestones:
People are sensitive about those things, then they make tragic decisions, for
example they exhume their deceased and take them to another location. It is
sad that Orthodox land here is sold and people are leaving. Orthodox cemetery
and homes are the only witnesses that orthodox Serbs lived here. The way
the things are, in some ten years, if nothing changes, it is a question if the
Orthodox Serbs will live here at all. Churches and graveyards should be the
witness of that, but the graveyards are gradually exhumed (Č. Đ., 40 years old,
local citizen).
Findings of our research indicate that beside inter-group conict there is a
specic latent conict between the members of the same ethnic or religious group.
Mostly it is a conict between the people who live somewhere on a permanent
basis and those who come there occasionally. For example, there are signicant
differences in perceptions of inter-ethnic relations between Bosniaks who returned
to their homes and those who stayed in Diaspora, and come to their birth place
for summer vacation. Also, similar tendency has been noticed in the Srebrenica
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area, where local Serbs do not appreciate occasional visits of extreme groups from
Serbia. We are giving some examples illustrating this. One respondent, a returnee
from Banja Luka, said the following:
I get along with my neighbours ne, it is our common interest to live peacefully
and help each other as much as we can. When summer comes, people from
Diaspora come for a vacation and tensions, arguments and insults start. They
are here for a couple of weeks, drive their expensive ‘Volvo’ and leave, and I
stay here in my poverty and explain to my neighbour Serb, who lives as hard
as I do, that my Bosniak did not mean it like that – and we both know he did...
(F. S., 40 years old, returnee).
5. CONCLUSION
Hate crimes are primarily a security problem, because if the environment is
unstable in terms of security, these crimes carry a risk of outbreak of violence.
Although in the post-war period in Bosnia and Herzegovina this type of crime is in
a relative decline, the fact that the country is a post-conict zone and inter-ethnic
relations are disturbed should not be forgotten, and any such crime, regardless its
gravity, is causing new ethnic and religious divisions and is deepening the existing
ones. This way, new antagonisms are generated in a situation where the institutional
capacities for the control of hate crimes are not sufciently developed in Bosnia
and Herzegovina.
Hate crimes represent a threat for co-existence of different ethnic and religious
communities sharing the same living space and difcult experiences from the
previous war. However, due to the institutional weaknesses and inadequate
approach to this type of crime, it is difcult to give a realistic assessment of the
extent of this phenomenon. It is evident that the intensity of severe criminal offences
committed out of ethnic or religious hatred is signicantly declining compared to
the previous period, especially compared to the time of a more intensive return of
refugees and displaced persons. Hate crimes lead to feelings of personal insecurity
of victims and other members of the victim’s community, thus increasing social
distance between ethnic and religious groups, affecting demographic changes due
to the emigration of the minority peoples from certain areas, and contributing to
larger ethnic and religious homogenization, inevitably leading to inter-ethnic and
religious distrust and intolerance. Under some circumstances these types of events
can lead to escalation of violence and become a reason for a potential conict,
which has its roots in the historical disputes and structural controversies of the
modern Bosnia and Herzegovina. There has not been a large-scale violence since
the end of the war in Bosnia and Herzegovina, i.e. all the cases were localized.
However, violence with ethnic and religious motivation almost always creates a
tide of hate and intolerance that reaches beyond the local area where the event took
place, especially under the inuence of the media. Every hate crime, including
those that are wrongly perceived as such, represents a threat to peace and stability
in Bosnia and Herzegovina.
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One specic nding of our research is the existence of latent, inter-group
conict among the members of the same ethnic or religious group. The conict
exists among those who live in a local community and those who come there
occasionally. Their opinions differ signicantly when it comes to their perception
of co-existence with people of different ethnicity or religion. Those who do not
live in a local community do not understand or do not want to understand the
complexity of relations of people of different cultures living in the same area, their
inter-dependence in every-day life, interests, needs and values based on which they
form a positive opinion of each other.
Although the work on prevention and combating hate crimes is a demanding
task, good practices from around the world should be adjusted to the local
environment and used in Bosnia and Herzegovina. On the strategic level this would
mean creating a strategy and action plan for combating hate crimes based on the
model used in Great Britain (Dixon, 2010).
Using other positive experiences clearly indicating that the efciency of the
police with regards to combatting hate crimes can be increased through establishing
specialized departments for combating hate crimes, through trainings for the
police, efcient data gathering, contacts with communities, harsher penal policy
and cooperation with the media should also be considered (Levin & Amster, 2007;
Cronin, McDevitt, Farrell & Nolan, 2007).
Given the lack of functional communication or acting of the relevant
institutions, using positive experiences of the United States of America in terms of
forming working groups encompassing different levels and jurisdictions (Phillips
& Orvis, 1999) in combating different types of crimes, including hate crimes,
should be considered. This is especially relevant in the areas of training, exchange
of information, and cooperation of police agencies at the state, entity and local
level.
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