Author: Tamar Avaliani
Hate crime is an act of discrimination and intolerance that violates the principle of equality and excludes and stigmatizes vulnerable groups. There is no general consensus on a common definition of a hate crime, which is due to the specificity of its content. Cultural diversity, local social context, and political interests play a major role in defining hate crimes.
The notion of hate-motivated crime
The Office for Democratic Institutions and Human Rights (ODIHR) defines hate crime as “any criminal offense, including crimes against humanity and property, in which the victim, object or target is selected by his or her actual or presumed affiliation, affiliation, or support of a certain group. “.
According to the US Federal Bureau of Investigation (FBI), hate crimes are committed on the grounds of intolerance, which is manifested in intolerant expression towards race, religion, disability, sexual orientation or gender identity.
A hate-motivated crime is committed because the victim actually or presumably belongs to a specific identity. “Unlike other crimes, victims of hate crimes are selected not on the basis of who they are, but on the basis of what they represent.” Hate-motivated crime humiliates and victimizes the victim. Hate crime should be enshrined in the Criminal Code and committed on a biased and discriminatory, premeditated basis. Hate-motivated crime suffers the most from a solid, fundamental aspect of people’s identity and fragmentation of the community. Hate crime is not a case in point but a result of the political culture and social development of the society. The goal of hate-motivated crime is to maintain hierarchies that already exist in society to some extent through physical violence and threats, with a hostile motive.
Hate crime is a crime committed with intolerance and hostility towards specific excluded groups in society. The qualifying mark for hate crimes is bias and prejudice. Biased prejudice always targets members of a stigmatized community and expresses unacceptability simply because they belong to one identity or another. Hate crime is committed against members of the community who are marginalized and underestimated by the dominant part of the community. Hate crime is targeted at a person or group of people who have common protected characteristics (race, religion, ethnicity, language, sexual orientation or gender identity, and disability). Expressing hatred towards victims towards non-dominant groups always carries a certain message.
Models of “hostility” and “discriminatory selection”
According to the “hostility” model, the alleged perpetrator’s actions are at least partly based on his or her negative prejudice, intolerance, or hatred of the victim’s identity. In the “enmity” model, the offender commits an act of enmity and hatred based on one of the protected characteristics (religion, race, ethnicity, sexual orientation, etc.). As a rule, the legislation does not define “hostility”. The “hostility” model of hate crime regulation operates in Belgium, Canada and Ukraine.
According to the model of “discriminatory selection”, the abuser purposefully chooses the victim according to belonging to a particular community. In the case under consideration, in order to identify a hate-motivated crime, it is not necessary that there actually be an element of enmity or hatred. In this case, it is important to determine the connection between the action and the reason for selecting the victim, the subject’s subjective attitude is not crucial.
Some countries that follow the “discriminatory selection” model do not mention hatred or enmity at all in their national criminal law.
Article 531 of the Criminal Code of Georgia emphasizes the motive of intolerance and considers important features of the “hostility” model in this regard. The Criminal Code of Georgia does not define hate crimes, however, it considers acts of intolerance to be aggravating circumstances for punishment and specific crimes.
According to the first part of Article 531 of the Criminal Code of Georgia, the aggravating circumstance of punishment for all relevant crimes provided by the Code is the commission of a crime on the grounds of intolerance on the basis of skin color, language, sex, sexual orientation, gender identity, age, religion or other discrimination. One of the aggravating circumstances of Articles 109 (aggravated murder), 117 (intentional grievous bodily harm) and 115 (leading to suicide) of the Criminal Code is premeditated murder due to racial, religious, national or ethnic intolerance and/or on the basis of gender.
The Criminal Code of Georgia considers discrimination as a crime against human rights and freedoms and criminalizes it.
Article 142 of the Criminal Code declares the violation of human equality as a criminal act. The norm also mentions a person’s sexual orientation and gender identity as grounds for breaching equality.
The 1997 recommendation of the Committee of Ministers of the Council of Europe states that “hate speech includes all forms of expression which propagate, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of intolerance, nationalism, ethnocentrism or discrimination. Including enmity. “
Hate speech is different from abusive or defamatory expressions. Hate speech should be directed at a specific group and should be offensive in nature, although not all offensive texts can be hate speech.
There is no unified approach to the legal regulation of hate speech. Hate speech is a criminal offense in most European countries, while in the US, where freedom of expression is regarded at a much higher standard, a content-neutral model, hate speech is not criminalized.
The European Convention on Human Rights does not protect against hate speech and can be criminalized by the Contracting States to the Convention. The European Court of Human Rights in the case – Vona v. Hungary did not consider it an unjustified restriction on freedom of assembly by Norway. The Norwegian government did not allow the activities of political unions with the aim of expressing racist messages.
The United States uses the Brandenburg Test, known as the Clear and Instant Threat Test, to assess hate speech and restrictions on freedom of expression in general. Freedom of expression under the First Amendment of the US Constitution may not be restricted unless it is intended to promptly provoke an illegal act and there is a high probability that such an act will occur. Consequently, if the expression does not reveal the composition of the Brandenburg test, hate speech is also protected by the First Amendment to the US Constitution.
According to the standard of the Constitutional Court of Georgia – “the limit of freedom of expression will pass where expression threatens the goodness protected by the Constitution, the principles and values enshrined in the Constitution. Restrictions on constitutional rights may be exercised to ensure the good protected by the Constitution. “
Hall, N., 2013. Hate Crime, second edition, p. 2-3.
OSCE / ODIHR annual report for 2006
OSCE Report: Legislation on Hate Crimes. Practical Guide, 2009.
Petrosino, C., 2003. “Connecting the Past to the Future, Hate crime in America”, Perry B. “A Reader: Hate and Bias Crime”, Routledge, New York-London, p. 9-26
Operational Guidance Document on Investigation and Prevention of Sexual Orientation and Gender Identity Crimes, 2017. EMC, p.34.
Understanding Hate Crimes, a Handbook for Ukraine, 2015. OSCE, ODIHR, p. 7
Allport, G., The Nature of Prejudice, 1954.
Hall, N., Hate Crime, second edition., 2013. P. 2-3
Kellina. Craig, M., “Examining Hate-Motivated Aggression”, Perry, B. “A reader: Hate and Bias Crime”
Hate Crime Laws, A Practical Guide, 2009. OSCE, ODIHR, p. 47.
Article 377bis of the Penal Code of Belgium, https://www.legislationline.org/documents/section/criminal-codes/country/41/Belgium/show
Section 718.2 (a) of Canada’s Criminal Code, http://www.criminal-code.ca/criminal-code-of-canada-section-718-2-other-sentencing-principles/index.html
Article 67 (3) of Ukraine’s Criminal Code, https://www.legislationline.org/documents/section/criminal-codes/country/52/Ukraine/show
Hate Crime Laws, A Practical Guide, OSCE, ODIHR, 2009. P. 47.
Operational Guidance Document on Investigation and Prevention of Sexual Orientation and Gender Identity Crimes, 2017. EMC, p. 45.
Article 162 (2) of Bulgaria’s Criminal Code; Section 81 (vi) of Denmark’s Criminal Code; Art. 132-76 (1) of France’s Penal Code.
Council of Europe, Recommendation of the Committee of Ministers of the Council of Europe on hate speech no. R (97) 20., 1997
Denmark, France, the Netherlands, the United Kingdom and more.