EU SUGGESTED BEST PRACTICE DOCUMENT: CRITICAL ANALYSIS AND POLICY RECOMMENDATIONS FOR EU-WIDE HATE CRIME LAWS

Abstract

This document subjects the various EU hate crime provisions to critical policy analysis, weighing up their pros and cons, and defending aspects of them from inappropriate forms of critique, and then draws some policy conclusions based on a sense of best practice. The aim of identifying best practice is to generate reform suggestions in the form of detailed model legislation. This is contained in the final section of this document.
A key point considered is the narrow definition of protected groups under current EU measures. The restrictions to racist forms of hate crime and genocide denial contained in the Framework Decision is not central to the political and constitutional cultures of all member states. Indeed, it has not prevented the criminal law implementation measures of some EU Member States from including a number of other grounds, such as disability, anti-Semitism, or sexual orientation. Certain EU bodies have even encouraged this expansive approach to national implementation, with the FRA stating: ‘In the spirit of non-discrimination, it is certainly preferable to widen criminal law provisions to include equally all grounds of discrimination covered by Article 14 of the ECHR or Article 21 of the Charter of Fundamental Rights of the European Union.’ This criticism would, in practice, suggest a need for Members State supplementing these categories with one of more the following: gender, social origin, genetic features, language, political or any other opinion, membership of a national minority, birth, property or other status, disability, age or sexual orientation.
Whilst supporting an expansion of the range of groups covered, the following paragraphs issue a cautionary warning against a massive extension to cover all these groups on grounds of both principle and practical consequences.