In its analysis of Greece's draft anti-racism law, Human Rights Watch notes that while imposing sanctions for direct incitement to violence is legitimate, speech that falls short of incitement to violence – including denial of genocide and war crimes – should not be criminalized.
Members of Greece’s parliament should include measures to combat racist and xenophobic violence in a draft anti-racism law, Human Rights Watch said today. The bill, introduced in parliament by Justice Minister Haralampos Athanassiou on November 20, 2013, would impose sanctions for hate speech and incitement to violence but fails to address problems in existing Greek law and practice with respect to reporting and prosecuting racist violence.
“Greece has failed countless victims of racist and xenophobic attacks by neither investigating nor prosecuting the attackers,” said Eva Cossé, Greece specialist at Human Rights Watch. “If the justice minister and parliament are really serious about improving the country’s response to racism and xenophobia, they should remove the obstacles to justice for these attacks.”
The draft law, which is before the parliament’s standing committee for public administration, public order and justice, would toughen criminal sanctions for incitement to hatred, discrimination and violence. It would also criminalize denial of genocide, war crimes, and crimes against humanity.
Members of parliament should amend the bill to include provisions explicitly requiring that any crime that may be categorized as a violent hate crime, regardless of its nature, would require mandatory investigation and prosecution without requiring victims to pay a €100 (US$135) fee to file their complaint. Human Rights Watch research has shown that the fee deters some victims of racist attacks from filing a complaint.
Members of parliament should also include provisions to protect undocumented migrant victims and witnesses from detention and deportation. Law enforcement officials should be required to suspend all migration law actions arising from the undocumented status of a victim or witness of an alleged attack pending a prima facie assessment by a prosecutor of the merits of the complaint about the attack. These provisions would be consistent with the EU directive on the rights, support and protection of victims of crime.
Human Rights Watch has heard repeatedly from victims of racist violence that the threat by police of possible detention and deportation proceedings deterred them from reporting a racist attack to the police or pursuing the case.
A separate draft law to amend the Greek Immigration Code – yet to be submitted to parliament – would grant humanitarian visas to undocumented victims and witnesses of certain crimes. This could help improve efforts toward justice for racist and xenophobic violence, and would complement the preliminary suspension of migration law enforcement that Human Rights Watch advocates adding to the anti-racism bill.
Finally, well-crafted bias crime legislation needs certain key elements to ensure that prosecutors and the courts have the necessary tools and obligations to carry out their functions, Human Rights Watch said. Any proposed hate crimes reform should take into account these key elements identified by the Office for Democratic Institution and Human Rights of the OSCE:
Bias crime laws should acknowledge explicitly that perpetrators sometimes have mixed motives, and make clear that multiple motives should not preclude investigating and prosecuting the case as a bias crime. The mandate of Greece’s new anti-racism police units is limited to offenses committed exclusively because of the victim’s racial or ethnic origin or religion;
Prosecutors should be required to investigate bias as a possible motive in a crime, and to present any evidence to the court. Greek law provides that racist motivation may only be addressed in the sentencing phase, rather than during the trial for the determination of guilt, making police and prosecutors less likely to investigate potential bias elements of a crime from the outset.
It is also important for Greece’s laws to combat hate violence to include sexual orientation and gender identity as protected categories. This is consistent with the EU directive on the rights of victims of crime.
The draft law aims to transpose into Greek legislation the 2008 European Union Framework Decision on combating certain forms and expressions of racism and xenophobia. However, the draft law contains provisions that raise concerns about undue interference with freedom of expression and association, Human Rights Watch said.
Article 1 would make it a crime to incite hatred, discrimination and violence against persons on the basis of race, color, religion, descent, national or ethnic origin, and disability in a manner that endangers public order, or poses a threat to life, liberty or physical integrity. Violations of the law would be punishable by jail sentences ranging from three months to three years, and fines ranging from €5,000-20,000 (US$ 6,700-27,000). Existing law criminalizes incitement on the basis of national or ethnic origin, punishable by up to two years in prison.
Article 2 of the draft law would criminalize denial of genocide, war crimes, and crimes against humanity, punishable by similar jail sentences and fines.
While imposing sanctions for direct incitement to violence is legitimate, speech that falls short of incitement to violence – including denial of genocide, war crimes, and crimes against humanity – should not be criminalized, however offensive it may be, Human Rights Watch said.
The bill would give the justice minister the authority to impose tough administrative sanctions such as fines on associations if one of their members is indicted for offenses provided for in the bill. Under Greek administrative law procedures, sanctions can be contested before administrative courts, and the bill provides that if the member is irrevocably acquitted, the sanctions would be revoked.
The draft law would also broaden the scope and toughen criminal sanctions for participation in associations that “systematically seek” to incite to hatred, discrimination, and violence, with jail sentences ranging from three months to three years and fines ranging from €5,000-20,000 (US$ 6,700-27,000). The draft law does not define what would constitute systematically seeking to incite hatred, discrimination or violence, however.
Members of parliament should carefully review these measures for compatibility with relevant human rights standards. Any measures that would interfere with the rights to freedom of association and expression should be narrowly drawn to ensure that they are necessary and proportionate, and criminal laws should be crafted to provide legal certainty – that is, making clear to people what would constitute a violation of the law. Prosecuting people simply for membership in a legal political party for example, would violate freedom of association, Human Rights Watch said.
The bill comes amid a crackdown on the far-right anti-immigrant party Golden Dawn. The party leader, Nikolaos Michaloliakos, and five other members of parliament from the party were indicted in early October on the charge of creating and participating in a criminal organization linked to a range of offenses, including the fatal stabbing of the anti-fascist activist Pavlos Fyssas on September 18 and several violent attacks on migrants.
Michaloliakos and the others deny the charges and any connection to the violence. On October 16, Parliament lifted the parliamentary immunity of three more Golden Dawn members, but they have not yet been formally indicted.
“The Greek government’s desire to counter hate is legitimate,” Cossé said. “But unlike violence, hateful ideas are best addressed through debate and social condemnation rather than criminal penalties.”
In July 2012, Human Rights Watch published the report, “Hate on the Streets: Xenophobic Violence in Greece,” which documented an alarming surge in xenophobic attacks and the failure of the Greek police and the judiciary to prevent, investigate, and punish vigilante violence targeting migrants and asylum seekers.
Greece has taken some positive steps, including establishing the specialized police units in January to tackle racist violence and a position for a prosecutor to focus on hate crimes in Athens in November 2012. On November 20, 2013, an Athens court convicted two men of racially aggravated crimes in the first known ruling in which the 2008 hate crimes statute has been applied. They were each sentenced to prison terms of three years and five months but can pay a fine in lieu of the sentence.