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1.2.2 Legislation and Law Enforcement
Besides the need for more sophisticated data collection systems and mechanisms of monitoring, the ECRI as well as the FRA and the OSCE have pointed to the importance of appropriate hate crime legislation to protect individuals against bias-motivated offenses. According to these organizations, law enforcement agencies’ inability to adequately implement laws to protect an individual’s basic rights represents one of the biggest challenges for the national governments.
Since 1998 the ECRI has published three reports on Germany. (1) In its first report (1998), the ECRI noted that the authorities had adopted firmer measures to combat racial violence in the wake of the arsons in Mölln and Solingen. These measures included: improvement of police methods for monitoring and combating violent right-wing extremists, police surveillance of right-wing groups, the ban of several neo-Nazi organizations and the federal prosecutor’s investigation of attacks against members of minority groups. In the second report (2000), the existing legal framework and policy measures were criticized for their insufficiencies in effectively dealing with the ongoing challenge of violent attacks. The report expressed particular concern about the increase in anti-Semitism in general and violent assaults on the Jewish community. It also mentioned reports of ill-treatment and misconduct by law enforcement officials, particularly involving individuals of foreign origin. The authors also observed a tendency among German authorities and the media to portray racist violence and harassment as an issue limited to the new federal states rather than viewing it as a national problem. In the third follow-up report (2003), the ECRI showed concern that, even though various initiatives had been taken, racist, xenophobic and anti-Semitic violence continued to constitute a major problem in Germany, particularly affecting asylum seekers, members of the Jewish community and Roma and Sinti. German NGOs were also cited in the report as criticizing current systems of legislation and registration for not disclosing the racist motivation behind the offenses despite the fact that German legislation contains comprehensive provisions to counter organized forms of right-wing extremism. It also expressed concern that German criminal law does not explicitly allow the courts take racist motives into account as a specific aggravating circumstance in sentencing. Because of this, the ECRI has repeatedly urged German authorities to define racially motivated crimes and other hate crimes as a specific offense in the Criminal Code. Furthermore, it has recommended that the German government passes legal provisions that demand harsher punitive action for bias-motivated offenses.
The latest German RAXEN reports have raised concerns about the lack of proactive measures taken by police authorities, specifically for right-wing offenses. With regard to the victims of hate crimes in Germany, the authors emphasize the commitment of civil society groups, but note that »measures aiming at providing assistance to victims of racist violence appear significantly less common than in the past.« (2) In a recent interview with the German news magazine Der Spiegel, one of the authors stated: »In order to ensure the sustainability of the struggle against xenophobia and anti-Semitism [in Germany], respective good practice initiatives and projects (e.g. victims’ support organization) must be supported on a long-term basis and continuously institutionalized.« (3)
In first report on Poland (1997), the ECRI excused many flaws in the legal system and in policy makers’ approaches to tackling discrimination and hate crimes on the basis of social, economic and cultural upheavals and transitions in Poland, which were similar to most other central and eastern European countries. By that time, Poland was still in the process of elaborating a new Constitution and Criminal Code. Outright manifestations of discrimination or intolerance were said to be rare. In its second report on Poland (1999), the ECRI stressed the fact that the Polish government had taken some steps to address the problem of racism and discrimination by introducing relevant legislation, as well as by gradually recognizing the existence of national and ethnic minorities due to changing patterns of migration. (4) Despite this progress, Poland was criticized for continuing to marginalize and largely ignore problems of hate crimes and hate speech. Also, the report pointed out that deeply ingrained anti-Semitic attitudes and insensitivity to diversity still persisted among large segments of the population. The ECRI advised the Polish authorities to: 1) implement or strengthen programs to counter xenophobia and intolerance, especially legislative and judicial instruments; 2) institute the training of public officers; and 3) begin monitoring levels of discrimination and the living conditions of minority groups, especially those, like the Roma, who are most often the victims of intolerance. The ECRI also called for a large-scale campaign to increase public awareness of these problems. In its third report on Poland (2005), the ECRI expressed concern that the authorities rarely investigated and prosecuted cases of racial hatred and they also allowed anti-Semitic material to freely circulate on the market. The ECRI rebuked the police, because, in investigating violent attacks against certain ethnic minorities, such as Roma or migrants, they often did not take into account the racist motivation behind the crimes, which resulted in a lighter sentence for the perpetrator if convicted. Moreover, the commission criticized the fact that there was still no comprehensive body of legislation prohibiting racial discrimination in basic necessities, defined as: employment, education, social security, housing, healthcare, and access to goods and services. Furthermore, the report drew attention to allegations of: a) police violence and abuse directed particularly at ethnic minority groups; b) to pervasive feelings and manifestations of anti-Semitism; and c) to a general lack of public awareness of racism and xenophobia. (5)
On 20 June 2007 the Council of Europe’s Human Rights Commissioner expressed strong concerns about the Polish government‘s approach to LGBT people, including the Ministry of Education’s withdrawal of the Polish version of Compass—Human Rights Education with Young People from circulation in early 2006. This anti-discrimination training handbook was endorsed by the Council of Europe. When shown the replacement materials, the Commissioner found »the portrayal and depiction of homosexuality […] offensive, out of tune with principles on equality, diversity and respect for the human rights of all.« (6) The Commissioner also expressed concerns about proposed measures to penalize the alleged promotion of homosexuality in schools, deplored any instances of hate speech towards homosexuals and called on the Polish authorities not to tolerate such speech.
1. All information is based on the following reports: European Commission Against Racism and Intolerance (ECRI) 1998. First Report on Germany, CRI (98) 22, Strasbourg; European Commission Against Racism and Intolerance (ECRI) 2001. Second Report on Germany, CRI (2001) 36, Strasbourg; European Commission Against Racism and Intolerance (ECRI) 2004. Third Report on Germany, CRI (2004) 23, Strasbourg.
2. Bosch, Nicole; Peucker, Mario 2007. Ethnic Discrimination and Xenophobia in Gemany: Annual Report 2006, Europäisches Forum für Migrationsstudien, Bamberg, p. 6.
3. Spiegel Online, 29 Aug 2007.
4. Ethnic and national minorities are essentially recognized by the the same criteria, but to be classified as a national minority, the group must also »identify with a nation organized within its own state.« Ustawa o mniejszościach narodowych i etnicznych oraz o języku regionalnym, 6 Jan 2005, Warsaw, Article 2.
5. All information is based on the following reports: European Commission Against Racism and Intolerance (ECRI) 1997. Report on Poland, CRI (97) 59, Strasbourg; European Commission Against Racism and Intolerance (ECRI) 1999. Second Report on Poland, CRI (1999) 36, Strasbourg; European Commission Against Racism and Intolerance (ECRI) 2005. Third Report on Poland, CRI (2005) 25, Strasbourg.
6. Amnesty International 2007. Poland: Submission to the UN Universal Periodic Review, London, p. 3.
(OPP)
