|
PURPOSE: to
combat particularly serious forms of racism and xenophobia through a common minimum
set of criminal law penalties European level. LEGISLATIVE
ACT: Council Framework Decision 2008/913/JHA on combating certain forms and
expressions of racism and xenophobia by means of criminal law. CONTENT:
according to the evaluation of Council Joint Action 96/443/JHA of
15 July 1996 concerning action to combat racism and xenophobia, and work
carried out by the Council of Europe, some difficulties have still been
experienced regarding judicial cooperation aimed at combating racist
offences. There is, therefore, a need for further approximation of Member
States’ criminal laws in order to ensure the effective implementation of
comprehensive and clear legislation to combat racism and xenophobia. Moreover,
given that racism and xenophobia are direct violations of the principles of
liberty, democracy, respect for human rights and fundamental freedoms and the
rule of law - principles upon which the European Union is founded -, it has
become necessary to define a common criminal law approach in the European Union
to this phenomenon. The overall
objective is to ensure that the same behaviour constitutes an offence in all
Member States and that effective, proportionate and dissuasive penalties are
provided for natural and legal persons having committed or being liable for
such offences. In particular, the Framework Decision aims at combating
particularly serious forms of racism and xenophobia by means of criminal law
but, since the Member States’ cultural and legal traditions are, to some
extent, different, particularly in this field, full harmonisation of criminal
laws is currently not possible. Scope and
objectives of the Framework Decision: the
Framework Decision has the following objectives: (1) to
ensure that offences concerning racism and xenophobia are punishable: to this end, each Member State shall take the measures necessary
to ensure that the following intentional conduct is punishable: - publicly
inciting to violence or hatred directed against a group of persons or a
member of such a group defined by reference to race, colour, religion,
descent or national or ethnic origin;
- the
commission of such an act by public dissemination or distribution of
tracts, pictures or other material;
- publicly
condoning, denying or grossly trivialising crimes of genocide, crimes
against humanity and war crimes as defined in Articles 6, 7 and 8
of the Statute of the International Criminal Court or those defined in
Article 6 of the Charter of the International Military Tribunal
appended to the London Agreement of 8 August 1945, directed against
a group of persons or a member of such a group defined by reference to
race, colour, religion, descent or national or ethnic origin when the
conduct is carried out in a manner likely to incite to violence or
hatred against such a group or a member of such a group.
Note that
Member States may choose to punish only conduct which is either carried out
in a manner likely to disturb public order or which is threatening, abusive
or insulting. (2) to
ensure that instigating offences related to publicly condoning or denying
genocide, as well as aiding and betting in the commission of such conduct, is
punishable. Criminal
penalties: to make the provision more effective,
it is provided that each Member State shall take the necessary measures to
ensure that such conduct is punishable by effective, proportionate and
dissuasive criminal penalties, by providing for criminal penalties of a
maximum of at least between one and three years of imprisonment. Aggravating
circumstance: Member States shall also take the
necessary measures to ensure that racist and xenophobic motivation is
considered an aggravating circumstance. Liability
of legal persons: there are also provisions to
punish legal persons deemed liable for racist or xenophobic offences referred
to in the Framework Decision. Legal persons shall also be held liable for
racist offences simply for a lack of supervision or control. Liability of a
legal person shall not exclude criminal proceedings against natural persons
who are perpetrators or accessories in the conduct of a racist offence. Penalties
for legal persons: the Framework Decision
provides for penalties for natural persons deemed liable for racist acts
referred to in the Framework Decision. Likewise, provisions are made to
ensure that offences committed by legal person are punishable by criminal
law. Such penalties shall be effective, proportionate and dissuasive
(including criminal or non-criminal fines) and may include other penalties,
such as: - exclusion
from entitlement to public benefits or aid;
- temporary or
permanent disqualification from the practice of commercial activities;
- placing
under judicial supervision;
- a judicial
winding-up order.
Initiation
of investigation or prosecution: each Member State
shall take the necessary measures to ensure that investigations into or
prosecution of offences involving racism and xenophobia shall not be
dependent on a report or an accusation made by a victim of the conduct (who
is often vulnerable and reluctant to initiate legal proceedings), at least in
the most serious cases where the conduct has been committed in its territory. Extraterritorial
jurisdiction: the Framework Decision provides for
the principle of extraterritorial jurisdiction to bring proceedings against
those who commit offences involving racism and xenophobia. In particular,
this means covering cases where offences involving racism are committed
through an information system (for example, on the Internet). In this case,
the material used does not have to be present in the territory of the Member
State where the offence is committed and the offender does not have to be
physically present in that Member State, if the material used is hosted in
that Member State. However, the provision on extraterritorial jurisdiction is
optional. Constitutional
rules and fundamental principles: specific
provisions are made to clarify that the Framework Decision shall not be
incompatible with the principles of freedom of expression and association, as
enshrined in the Treaty on European Union. Moreover, it shall not have the
effect of requiring Member States to take measures in contradiction to
fundamental principles relating to freedom of association and freedom of
expression (in particular freedom of the press and the freedom of
expression in other media). Report and
review clause: the Council shall, by
28 November 2013, assess the extent to which Member States have complied
with the provisions of this Framework Decision. Before that date, it shall
review this Framework Decision, based on information provided by Member
States on difficulties encountered with regard to its implementation. Territorial
application: this Framework Decision shall apply
to Gibraltar. ENTRY INTO
FORCE: 06/12/2008. Joint Action 96/443/JHA is repealed. TRANSPOSITION:
Member States shall take the necessary measures to comply with the provisions
of this Framework Decision by 28/11/2010.
|
