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3.2 Data on Legal Proceedings and Convictions
Data on legal proceedings and convictions constitute another important source for the assessment of state responses to right-wing violence and related hate crimes. However, this kind of information is only provided by special requests to members of the parliament in the case of Germany or to supranational bodies or human rights organizations in the case of Poland.
3.2.1 Germany
The Federal Ministry of Justice requires all legal authorities in each state to register all case investigations that the state prosecutors launch on the grounds of alleged or actual right-wing extremist, xenophobic or anti-Semitic crimes. The most recent statistics available are from the years 2001-2003.
Table 5: Investigations launched by the public prosecutor related to (alleged) right-
wing extremist and/or xenophobic hate crimes 2001-2003
| 2001 | 2002 | 2003 | |
| Propaganda offenses (Dissemination of propaganda material; use of symbols of anti-constitutional symbols, Sect. 86, 86a Criminal Code) | 19,875 | 14,171 | 12,554 |
| Propaganda offenses (incitement of people and representation of violence, Sect. 130, 131 Criminal Code) | 4,746 | 3,334 | 3,123 |
| Breach of the peace (Sect. 125, 125a Criminal Code) | 480 | 231 | 184 |
| (Attempted) murder (Sect. 211, 212 Criminal Code) | 19 | 14 | 27 |
| Bodily harm (Sect. 223 Criminal Code) | 1,070 | 942 | 833 |
| Anti-Semitic offenses | 656 | 609 | 316 |
| Offenses against foreigners | 3,553 | 2,276 | 1,796 |
| Other offenses | 2,470 | 2,063 | 1,987 |
| Total | 29,362 | 21,417 | 19,120 |
Source: German Parliament, printed materials 16/1353 (27 April 2006)
Table 6: Investigations closed by the public prosecutor related to (alleged) right-wing
extremist and/or xenophobic offenses
| 2001 | 2002 | 2003 | |
| Number of closed proceedings | 27,590 | 21,771 | 17,832 |
| Total number of convictions | 2,623 | 2,805 | 2,334 |
| Proportion of all closed proceedings | 9.5% | 12.9% | 13.1% |
| Number of convictions due to offenses against foreigners | 939 | 644 | 437 |
| Total numbers of acquittals | 365 | 217 | 154 |
Source: Ibid.
In contrast to the police registration system, information and research concerning how public prosecutors deal with the issue of hate crimes in Germany is rather rare. The same applies to the performance of courts and judges’ decisions. In her doctoral thesis, Sylvia Seehafer summarizes the findings of other researchers concerning arson attacks, incidents of assault and battery, and the legal treatment of organized right-wing extremist groups since the early 1990s. She determined that the rise in right-wing arson attacks, for instance, has led to increased pressures on public prosecutors to press charges for attempted murder. As a result, arson attacks on private homes are now regularly treated as first-degree murder. By definition, this takes into account the political character of the attacks, as perpetrators deny their victims human dignity and the right to life for ideological reasons. This change in jurisdiction, however, did not result in higher penalties, presumably due to the large share of juvenile perpetrators. (1) In the field of juvenile law, sentencing is predominantly orientated towards the education and re-socialization of the offender.
Presumably, the state prosecutors’ stance on hate crime has a decisive influence on the police investigation as well as on the court examination. Victim support organizations in different states and their experiences with the legal system corroborate this argument. For the federal state of Brandenburg, Opferperspektive has commended the improvement in the public prosecution’s performance in the past years, notably under the guidance of the particularly committed General State Prosecutor Dr. Erardo Rautenberg. (2) In contrast, other victim counselors from Saxony-Anhalt have commented on the lack of knowledge and commitment in their regional justice system: »Sometimes we observe that prosecutors [trained in] economic law are supposed to press charges against neo-Nazis with a long-standing criminal record [because of right-wing motivated offenses]. They have no idea about right-wing extremism.« (3) This is why some NGOs have lobbied for the appointment of public prosecutors specializing in right-wing extremism, a demand which is also supported by some legal experts.(4)
As illustrated in the previous chapter, the German Criminal Code does not explicitly address or define hate crimes, and thus provides no clear standard for the prosecution. But, even if measures for sentence enhancement in cases of bias-motivated crimes were introduced into the legal system, the question remains of how to go about proving a xenophobic motive. Examining the interrelation of perpetrator’s motives, the offense and the actual effect of the offense on the victim requires an intricate understanding of racist ideologies and manifestations. A concrete case highlights the problem:
In April 2006, shortly before the Football World Cup in Germany, Ermyas M., a German citizen of Ethiopian origin, was attacked and severely injured in a fight that had a clear racist dimension according to the victim. In June 2007, after a highly publicized investigation and criminal procedure that were debated nationally and internationally, the only two suspects were acquitted for want of evidence. In the verdict the court also commented on the racist dimension of the case. The term »nigger,« which had been used by the accused against the victim, was not necessarily motivated by racism, the judge explained: »The intention could also have been limited to attempting to offend the opponent.« The judge also assumed that calling white people a »pig sod« would have a comparable impact. (5) According to victim counselors from Opferperspektive, the case shows that »lack of objective standards leaves [the judges] with a considerable power of definition. […] Obviously, legal skills are insufficient to assess the problem.« Furthermore, victim counselors observed differences between comparable rulings that show inconsistence in the identification of right-wing motivations. (6)
1. Seehafer, Silvia 2003. Strafrechtliche Reaktionen auf rechtsextremistisch/fremdenfeindlich motivierte Gewalttaten: Das amerikanische »hate crime« Konzept und seine Übertragbarkeit auf das deutsche Rechtssystem, Dissertation, Humboldt-Universität zu Berlin, Berlin, p. 32.
2. Interview with Opferperspektive.
3. Interview with Together.
4. Ibid. Seehafer has also acknowledged improvement: »Specifically, institutionalized state prosecution departments are a beginning for the support of an adequate judicial examination of the events of the offense.« Seehafer, Silvia 2003. Strafrechtliche Reaktionen, p. 36.
5. A PDF with a detailed account of the case is provided in German by Opferperspektive: Opferperspektive e.V. 2008. Der Fall Ermyas M.: Chronik einer Debatte, Potsdam.
6. Interview with Opferperspektive.
(OPP)
