ENAR position paper
regarding the Proposal for a
Council Framework Decision on combating racism
and xenophobia
presented by the Commission COM ( 2001) 664 final.
‘Racism
is not an opinion - It’s a crime’
A
unique opportunity to develop legal measures to make this slogan true
ENAR, the European Network Against Racism, is an EU-wide network of about 600 non-governmental organisations active in the fight against Racism. The main focus of ENAR is to inform its constituency about EU initiatives concerning racism to support networking amongst its members and to influence political and legal initiatives with the aim to fight racism.
ENAR welcomes this proposal for a framework decision which will complement the Council Directive 2000/43/CE of 29 June 2000 ‘implementing the principle of equal treatment between persons irrespective of racial or ethnic origin’ in the area of criminal law.
We would
like to formulate our appreciation concerning:
· The fact that racist motivation may
be regarded as an aggravating circumstance for all offences (Article 8)
· The fact that legal persons may be
held liable (Article 9),
· The concern regarding the combating
of crimes of a racist nature perpetrated through the medium of the internet
(Article 12)
· The importance of making illegal organisations and propaganda activities which incite discrimination, hatred or violence on racist grounds (Article 4). The Committee on the Elimination of Racial Discrimination also recalls this in its recommendations of 22 March last[1].
The inclusion of these Articles will allow racism to be tackled in a comprehensive and meaningful way.
However, we also wish to draw attention to the following points, which we would like to propose for strengthening the Framework Decision:
As is highlighted by the explanatory
memorandum, “The framework decision establishes the minimum approximation
necessary to ensure that national legislation is sufficiently comprehensive and
that effective judicial co-operation can be developed”. In order to
ensure that the Member States do not reduce penal protection against racist and
xenophobic crimes, we would like to recommend an additional article, which
would specifically and clearly stipulate that the Member States, when
implementing the framework decision, may not reduce the existing level of
protection. The respective paragraph in the ‘Race Directive’ could
be used as model formulating such an article.
Article 2 (b) seems to exclude from the
field of application of the framework decision acts committed by nationals of a
Member State against individuals or groups from another Member State. The
consequence of this is that certain forms of cross-border racism would not be
covered. In order to specify the scope of the Framework Decision and for the
reasons mentioned above we would suggest that “individuals or groups of
that Member State” should be replaced by “individuals or groups of
any Member State”.
- As stipulated in the ‘Race Directive’ the ‘EU rejects theories, which attempt to determine the existence of separate human races’. To underline this political statement we strongly recommend to include “alleged” before the word race in Article 3, so as not to give any undue legitimacy to the theories according to which different races exist.
- Regarding Article 4, the use, several times, in the English version of the phrase “for a racist or xenophobic purpose” seems to us to be inappropriate and its interpretation could lead to lack of clarity and confusion. We would suggest replacing it with the following wording: “on racist or xenophobic grounds”. The word ‘purpose’ would unnecessarily narrow the scope of this article. To use the word ‘grounds’ would give a clear message to perpetrators that all crimes motivated by racism will not be accepted before the law and will be punished by law.
It is furthermore important that careful consideration be given to the formulation of this provision in the different languages.
- We suggest that in Article 4 (a) the phrase “which may cause substantial damage” should be replaced with “which may cause damage”. The phrase substantial damage in our view would not give the necessary attention to all other kinds of damages.
- It would be advisable to add “the justification or approval of these” to points (c) and (d) of Article 4 as this is stated in various International Human Rights instruments and it would clarify that support of certain racist crimes are punishable by law.
- The aggravating circumstance “in the exercise of a professional activity” contained in Article 7 is not sufficiently precise and could exclude certain groups of professionals. For this reason we would propose the following wording: “in cases where the perpetrator of the offence… is acting in the exercise of his or her office, profession or business”
- Article 11 is ambiguous. It would be sensible to add some clarifications: in the majority of cases, investigations and prosecutions are undertaken following a complaint being made by the victim. Thus we assume that Article 11 means that prosecution does not depend “only” on complaints being made by the victim and that it invites the prosecuting authorities to make prosecutions systematically and to undertake detailed investigations within a reasonable period of time and to achieve a satisfactory result. In addition, it would be advisable to make provision for the possibility of bodies specialising in combating to initiate or support investigations.
- Article 12.1( b) should be reformulated as follows: “…individuals or groups of any Member State”. This is for the same reasons as mentioned in reference to Article 2.
- Regarding Article 16, we are of the opinion that it would be useful if the Member States were to produce periodic reports on the implementation of the framework decision. A single report in 2005 seems to us to be inadequate.
Periodic reports would allow governments and civil society to evaluate developments on racist crimes on a regular basis and could pave the way for appropriate preventive action.
We recommend involve the EU Monitoring Centre on Racism and Xenophobia, as well as relevant national and EU non-governmental organisations in the field, in the process of monitoring and evaluating the implementation of the Framework Decision in order to decrease racism through adequate legal tools.
Brussels 3 May 2002