RACISM AND XENOPHOBIA
Draft Council Framework Decision on combating racism and xenophobia.
|Legal base:||Articles 29, 31 and 34(2)(b) EU; consultation; unanimity
|Document originated:||28 November 2001
|Forwarded to the Council:||30 November 2001
|Deposited in Parliament:||17 December 2001
|Basis of consideration:||EM of 15 January 2002
|Previous Committee Report:||None
|To be discussed in Council:||No date set
|Committee's assessment:||Legally and politically important
|Committee's decision:||Not cleared; further information requested
5.1 This proposal by the Commission seeks to harmonise
the substantive criminal law of EU Member States on racism and
xenophobia. The proposal would repeal Joint Action 96/443/JHA
of the Council of 15 July 1996,
and thus give effect to the resolution of the European Parliament
of 21 September 2001 calling for a Framework Decision to replace
the Joint Action.
In the Joint Action the Member States undertook to ensure effective
judicial cooperation in respect of racist and xenophobic behaviour,
either by making criminal such behaviour, or by not requiring
in respect of it. The Commission now asserts that "it is
necessary to define a common criminal law approach in the European
Union to this phenomenon of racism and xenophobia in order to
ensure that the same behaviour constitutes an offence in all Member
5.2 "Racism and xenophobia" is also one of
the crimes listed in Article 2(2) of the draft Council Framework
Decision on the European Arrest Warrant as being a crime giving
rise to an obligation to surrender without regard for the principle
of dual criminality, provided the offence carries a penalty of
at least three years' imprisonment in the State seeking extradition.
The absence of definition of the term "racism and xenophobia"
as used in Article 2(2) of that draft Framework Decision, taken
with the abandonment of dual criminality, has been the object
of criticism, including criticism by us.
The adoption of an agreed EU-wide definition of the crime would
make dual criminality of less importance, as the courts of all
Member States would then be able to recognise the classification
of the offence by other courts.
The draft Framework Decision
5.3 The purpose of the proposal is set out in Article
1. It is to approximate the laws of Member States and to provide
for closer cooperation in relation to offences involving "racism
and xenophobia". Article 2 provides that the Framework Decision
is to apply to such offences committed within the territory of
Member States, by the nationals of Member States where the act
affects individuals or groups of that State, or where the offence
is committed for the benefit of a legal person established in
a Member State.
5.4 Article 3 contains definitions of terms used in the
Framework Decision, the most important of which is "racism
and xenophobia". This is defined as "the belief in race,
colour, descent, religion or belief, national or ethnic origin
as a factor determining aversion to individuals or groups".
5.5 It appears that, by itself, such a belief is not
to constitute an offence. Article 4 sets out six categories of
intentional conduct 'committed by any means'
which are to be punishable as a criminal offence. Article 4(a)
refers to 'public incitement to violence or hatred for racist
or xenophobic purpose or to any other racist or xenophobic behaviour
which may cause substantial damage
to individuals or groups concerned'.
5.6 Article 4(b) refers to 'public insults or threats
towards individuals or groups for a racist or xenophobic purpose'.
Unlike Article 4(a), the provisions of Article 4(b) are new and
were not contained in the Joint Action of 1996.
5.7 Article 4(c) refers to 'public condoning for a racist
or xenophobic purpose of 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'.
'Condoning' is not defined, but there seems to be no requirement
that it be done in a threatening manner, or that it should amount
to an incitement to violence or hatred. 'Condoning' was used in
the same sense in the Joint Action of 1996.
5.8 Article 4(d) seeks to address what is often referred
to as 'Holocaust denial' by referring to the 'public denial or
trivialisation of the crimes defined in Article 6 of the Charter
of the International Military Tribunal appended to the London
Agreement of 8 April 1945 in a manner liable to disturb the public
peace'. The Joint
Action of 1996 had contained a reference to the 'public denial'
of the crimes defined in Article 6 of the Charter 'insofar as
it includes behaviour which is contemptuous of, or degrading to,
a group of persons defined by reference to colour, race, religion
or national or ethnic origin.' The proposed draft Article 4(d)
omits this qualification, and introduces the concept of 'trivialisation'
of the Article 6 crimes. The Commission explains that the changes
to the wording of the Joint Action 'are largely inspired by the
German law, which incriminates not only the denial but also the
trivialisation of the crimes mentioned, if that is liable to disturb
the public peace'. The Commission further explains that 'this
should be interpreted as regards to the potential of the conduct
of disturbing the public peace'.
5.9 The draft Article 4(d) does not define the term 'trivialisation',
and the Commission Explanatory Memorandum does not explain how
this concept is treated in the German law to which it refers.
Neither is there any attempt to define or explain the concept
of 'disturbing the public peace'. As the language of the Joint
Action is no longer used, it is presumably the case that the 'public
peace' is that of the public at large, rather than that of a particular
5.10 Article 4(e), which refers to the 'public dissemination
or distribution of tracts, pictures or other material containing
expressions of racism and xenophobia' repeats the language of
Title 1 A(d) of the 1996 Joint Action.
5.11 Article 4(f) refers to 'directing, supporting of
or participating in the activities of a racist or xenophobic group,
with the intention of contributing to the organisation's criminal
activities'. As a 'racist or xenophobic group is already defined
as a 'structured organisation acting in concert to commit' the
offences listed in Article 4(a) to (e), it is not clear what is
added by the reference to the 'organisation's criminal activities',
unless the definition is also meant to refer to criminal activities
other than those listed in Article 4(a) to (e). It is also not
clear what is meant by 'supporting' in this context, for example,
whether the provision would go so far as to make it an offence
to support a political party which commits any of the acts referred
to in Articles 4(a) to (e).
5.12 Article 5 sets out a provision requiring Member
States to ensure that criminal penalties are also applicable to
instigating, aiding, abetting or attempting to commit an offence
referred to in Article 4.
5.13 Article 6 deals with penalties and requires (in
Article 6(2)) that Member States provide for custodial sentences
'which can give rise to extradition or surrender' in the case
of the offences under Article 4(b) to (e), and (in Article 6(3))
a maximum penalty of not less than two years' imprisonment for
any of the offences referred to in Article 4(a) to (f).
Article 6(5) requires the Member States to ensure that fines can
be imposed 'or payment for charitable purposes accepted' in respect
of the offences under Articles 4 and 5.
5.14 Article 7 requires Member States to ensure that
the sentence can be 'aggravated' where the offender is acting
'in the exercise of a professional activity and the victim is
depending on this activity'.
Article 8 requires Member States to ensure that 'racist and xenophobic
motivation' may be regarded as aggravating circumstances for determining
the penalty for crimes other than those referred to in Articles
4 and 5.
5.15 Articles 9 and 10 provide for the liability of legal
persons and the sanctions which may be imposed. They are in the
standard form used in Framework Decisions. Article 11 provides
that investigations into, or prosecutions of, offences under Articles
4 and 5 must not be made dependent on a report or accusation made
by a victim of the offence.
5.16 Article 12 provides for jurisdiction. By virtue
of Article 12(1) Member States are required to adopt rules providing
for jurisdiction on a territorial basis, on the basis that the
offence is committed by one of its nationals and affects individuals
or groups of that State, and on the basis that the offence is
committed for the benefit of a legal person having its head office
in the territory of that Member State.
Article 12(2) attempts to address the question of offences committed
through an information system, such as the internet. It requires
each Member State, when adopting territorial rules of jurisdiction,
to ensure that such rules cover the case where the offender is
physically present in the national territory (whether or not the
'racist material' is hosted on an information system within the
national territory) and the converse case where the racist material
is hosted on an information system within the national territory
but the offender is not physically present.
5.17 The Commission explanatory memorandum explains that
the provisions of Article 12(2) are intended to cover the case
where a person in a Member State places racist material on a website
located in a third state and the case where a person in a third
state places the racist material on a website hosted in the territory
of a Member State.
5.18 Articles 13 and 14 contain provisions on extradition,
but these would become redundant with the adoption of the proposal
on the European Arrest Warrant.
Articles 15 and 16 are concerned with the exchange of information
and implementation respectively.
The Government's view
5.19 In her Explanatory Memorandum of 15 January 2002,
the Parliamentary Under-Secretary of State at the Home Office
(Angela Eagle) reviews the impact which the proposal would have
on the law of the United Kingdom. The Minister points out that
the definition of 'racism and xenophobia' in Article 3 (which
defines this as the belief in race, colour, descent, religion
or belief, national or ethnic origin as a factor determining aversion
to individuals or groups) has a wider scope than the relevant
UK legislation (Part III of the Public Order Act 1986), which
is concerned only with incitement to racial hatred. This is defined
as 'hatred against a group of persons in Great Britain defined
by reference to colour, race, nationality (including citizenship)
or ethnic or racial origins'.
5.20 In relation to Article 4 (which sets out the conduct
which is to be criminal in all the Member States), the Minister
"In general terms most of this behaviour could be criminal
in the UK but only if the words or behaviour were threatening,
abusive or insulting and intended to stir up hatred. Some of the
offences in Article 4 have some of the elements required by our
domestic law but others do not. To comply with this article the
UK would have to lower the current criminal threshold for existing
offences or create new offences."
5.21 The Minister considers that the acts described in
Article 4(a) and (b) (which are concerned with incitement to violence
or hatred, and public insults or threats, for a racist or xenophobic
purpose) are 'close' to the existing law in the UK and 'would
be covered with only some amendments to the text'.
5.22 In relation to Article 4(c) and (d) (which address
the public condoning of crimes of genocide, crimes against humanity
and war crimes, and the public denial or trivialisation of the
crimes defined in the 1945 Charter of the International Military
Tribunal) the Minister describes these provisions 'as an attempt
to deal essentially with Holocaust denial'. The Minister further
"Holocaust denial is potentially criminal in the UK as long
as the words and behaviour used are threatening, abusive or insulting
and intended to stir up racial hatred. The current draft of these
articles requires, for 4(c), condoning for 'racist or xenophobic
purpose' but not to stir up hatred and there is no requirement
that the condoning should be in a threatening manner. Article
4(d) talks about denial of crimes 'in a manner liable to disturb
the public peace'. There is no mention here of a racist intent
or, again the use of threatening behaviour. These offences are
therefore a reduction in the criminal threshold for UK law."
5.23 The Minister comments, in relation to Article 4(e)
(dissemination of tracts or pictures containing 'expressions of
racism and xenophobia'), that the offence would amount to a 'reduction
of the criminal threshold of UK law', since it does not require
an intention to stir up hatred or the use of threatening behaviour.
5.24 In relation to Article 4(f) (which would make it
an offence to direct, support or participate in the activities
of a racist or xenophobic group, with the intention of contributing
to the organisation's criminal activities), the Minister points
out that the exercise of the power under the Terrorism Act 2000
to proscribe an organisation must be based on a belief that the
organisation is involved in terrorism.
The Minister further explains that, even in the case of an extreme
domestic racist group, the factor determining proscription would
always be the organisation's involvement in terrorism, and that
no such organisations are proscribed at present, and that there
are no other powers to deal with membership of such groups.
5.25 The Minister suggests that the offence under Article
4(f) could be covered by the existing law on conspiracy, and incitement
or attempts to commit a criminal offence. This is because "the
current text defines the group by virtue of the criminal activities
and the offence is directly related to criminal activity".
5.26 The Minister states that there has been no consultation
so far with outside interests, and describes the policy implications
of the proposal as follows:
"The Government recognises the importance of tackling racism,
especially when it manifests itself in violence and harassment.
We therefore welcome any proposals to ensure protection against
violent racism across Europe. We are, however, concerned to ensure
that the exercise of the rights of freedom of expression and association
are balanced with the prevention of disorder and crime and the
protection of the rights of others. Under our current law, for
example, we believe that a high criminal threshold for offences
of incitement to racial hatred is required to balance protection
of communities with the importance we place on freedom of expression.
Some material that may be offensive to many will not be threatening,
abusive or insulting.
"Our aim will be to negotiate a text for the Framework Decision
that does not further limit freedom of expression and association
on the subject of race and religion. Whilst the Commission has
emphasised the requirement that the Framework Decision should
be compatible with the ECHR [European Convention on Human Rights],
there are likely to be different approaches by those Member States
who have stronger attitudes to freedom of expression and those
who do not. We understand that the Commission is well aware of
the potential for controversy regarding these proposals and has
produced a far-reaching first draft with the expectation that
the provisions will be amended during the negotiation process."
5.27 This proposal could have far-reaching effects
on the balance struck in this country between the use of the criminal
law to control incitements to violence and racial hatred on the
one hand, and the freedom of speech and association on the other.
The case law of the European Court of Human Rights has recognised
that Contracting States have a "margin of appreciation"
in relation to the necessity in a democratic society for restrictions
on these freedoms.
Having regard to the sensitivity of the subject-matter in each
of the Member States, which is reflected in the different approaches
of their criminal law, we find it surprising that neither the
Commission's explanatory memorandum, nor the one from the Minister,
even mentions the concept of subsidiarity. We therefore ask the
Minister if she accepts the assertion made in recital (5) of the
proposal that 'it is necessary to define a common criminal law
approach in the European Union ... in order to ensure that
the same behaviour constitutes an offence in all Member States'.
5.28 In this connection, we ask the Minister to state
her view on whether the expression 'racism and xenophobia' as
used in Article 3 should extend to questions of religion
5.29 We have concerns over the width of the offences
created by Article 4(a), (c), (d), (e) and (f). In relation
to Article 4(a), we ask the Minister to explain what is intended
by making criminal 'racist or xenophobic behaviour which may cause
substantial damage to individuals or groups'. Could this make
criminal a call to boycott the goods of a particular producer
in a Member State or in a third State on the grounds of his national
5.30 In relation to Article 4(c), we would be grateful
if the Minister would explain what is intended by 'condoning'
in this context.
5.31 In relation to Article 4(d), we would be grateful
for the Minister's views on what factors (if any) now make it
necessary to introduce into the law of this country a new offence
of 'public denial or trivialisation' of the crimes dealt with
by the International Military Tribunal established in 1945, when
there has been no such offence for over fifty years.
5.32 We would be grateful for the Minister's views
on the question of whether public dissemination or distribution
of tracts, pictures or other materials should be made criminal
under Article 4(e), even in circumstances where there is no intention
to incite to racial hatred or other threatening behaviour.
5.33 We ask the Minister to explain in more detail
the scope of the offence under Article 4(f), in particular whether
the term 'criminal activities' is meant to refer to acts made
criminal under the Framework Decision, or to other criminal offences.
5.34 We ask the Minister for her views on the provisions
of Article 6(5) and on whether it would require a court to accept
a payment for charitable purposes instead of imposing a fine.
5.35 We ask the Minister for her views on Article
7. As the offences are essentially public order offences, we do
not understand how a provision of this nature (which refers to
a person acting in a professional capacity and a victim being
dependent on this activity) can operate.
5.36 We shall hold the document under scrutiny pending
the Minister's reply.
No L 185, 24.07.1996, p. 5. Back
No C 146 of 17.05.2001, p. 110. Back
principle in the law of extradition by which a person is not extradited
unless the conduct for which he is sought is also criminal in
the extraditing country. Back
recital 9 to the proposal. However, it appears from the Commission's
Explanatory Memorandum that 'propaganda offences' are proportionately
more important in Germany, whereas unlawful threats and assaults
are more important in the UK and Sweden. Back
13425/01; HC 152-viii (2001-02), paragraph 1 (28 November 2001).
Commission explains that the 'by any means' formula is meant to
include racist and xenophobic contents on an information system
such as the Internet. Back
is not defined, but presumably refers to behaviour other than
'public incitement'. Back
damage' is not defined. It is not clear if mere economic loss
is included, so it is not clear that calling for a boycott of
goods on grounds of the producer's national origins would not
constitute an offence. Back
would correspond to the offence under s.18 Public Order Act 1986.
However, it is not clear if the 'threats' referred to must also
be made in public in order to amount to the offence. Back
at Rome 17 July 1998. Article 6 defines the crime of genocide,
Article 7 crimes against humanity and Article 8 defines war crimes. Back
London Agreement was concluded on 8 August 1945 between the United
States, France, the United Kingdom and the Union of Soviet Socialist
Republics and provided for the establishment of an International
Military Tribunal for the trial of major war criminals of the
European Axis countries. Article 6 of the Charter set out the
jurisdiction and general principles of the Tribunal and defined
three categories of crimes carried out by persons acting in the
interests of the European Axis countries, namely crimes against
peace, war crimes and crimes against humanity. Back
Joint Action referred instead to denial of the crimes defined
in Article 6 of the Charter of the International Military Tribunal
'insofar as it includes behaviour which is contemptuous of, or
degrading to, a group of persons defined by reference to colour,
race, religion, or national or ethnic origin'. Back
Under the European Arrest Warrant, a sentence of at least three
years must be imposable, if the person is to be surrendered without
regard for the principle of dual criminality. Article 6(2) and
(3) would therefore seem to maintain the requirement of dual criminality,
but this would be inconsistent with the Joint Action of 1996.
Commission Explanatory Memorandum does not explain the reason
for this provision. As the offences are essentially ones of public
order, involving public acts, it seems unreal to speak of individual
latter basis has become usual in Framework Decisions, but the
concept of 'benefit' seems particularly difficult to apply in
this context where no material gain is in issue. Back
rules do not, therefore, cover the wholly extra-territorial case
where a person in a third country places material on a website
hosted in a third state, but which is accessible from a Member
State. The only basis of jurisdiction available would be that
based on the nationality of the offender, but in that case the
material must affect individuals or groups of that State. Back
to which, see HC 152-xvii (2001-02) (30 January 2002). Back
17 Public Order Act 1986. The section does not cover hatred based
on religion or belief. Back
3(4) Terrorism Act 2000. Back
the other hand, Article 4(f) refers only to an intention of 'contributing
to the organisation's criminal activities'. It is not clear if
the 'criminal activities' also include those made criminal under
this Framework Decision. If they do, then an act such as paying
a subscription for the material under Article 4(e) would itself
be criminal, since the payment would 'support' the activity under
Article 4(e) and would contribute to that activity. Back
in particular, Handyside v. United Kingdom judgment of
7 December 1976 A.24. p.22. Back