Framework Decision on combating racism and xenophobia NATIONAL LEGAL WORKSHOP ON CRIMINAL LAW – Bulgaria 30.06.2011 Framework Decision on combating racism and xenophobia European Commission Justice Rafael K. Polo Guardo. DG JUST. D 1

Fighting against racism and xenophobia at EU level Which levels ? General Frame Work. Commission and its tasks in the fight against R & X. Legislative Action: Antidiscrimination Law and Criminal Law Framework Decision adopted in 2008 (Criminal Law and Hate speech, towards a common approach en MS) Why to fight against R & X? Principles of the European Union. Lisbon Treaty, Treaty of EU and Charter of Fundamental Rights. Stockholm Programme. Presentation How to fight against certain forms and expressions of racism and xenophobia across the EU? Through a FD (explain, similar to Directives) Through criminal law Against HATE SPEECH and HATE CRIMES (particularly serious forms of R&X) Why? R&X is a common phenomenon to all EU MS (and in the rise, as shown by FRA) Need to prevent perpetrators from benefiting from the fact that they are treated differently by moving from one MS to another to avoid prosecution This fight is necessary also in the field of sports: this legislation applies with no exception to offences committed by sport supporters, sport clubs or associations, their leaders, sport players, etc. These types of crimes are particularly harmful to society: as they are committed because of the belonging of the victim to a certain group or because of his/her intrinsic characteristics, they are also committed against the society to which those groups and people with those characteristics belong. Enforcing the law against their perpetrators sends a very powerful message to society. Because of the popularity of some sports in society, their dimension, their media coverage, it is particularly necessary to act against these crimes and to show that they are NOT more justified when it comes to sports: that they are equally punishable.

General Frame Work of the Fight against Racism and xenophobia at EU level What to consider first ? Treaty of the European Union –(Maastricht) Treaty on the Functioning of the EU-(Treaty of Lisbon) Charter of Fundamental Rights of the EU. How to operate? Legislative Approach ( Antidiscrimination Law and Criminal Law) The Commission is invited to use all its powers Combination of Policy, Legislative and Activities of Training, information dissemination and Rising Awareness. Presentation How to fight against certain forms and expressions of racism and xenophobia across the EU? Through a FD (explain, similar to Directives) Through criminal law Against HATE SPEECH and HATE CRIMES (particularly serious forms of R&X) Why? R&X is a common phenomenon to all EU MS (and in the rise, as shown by FRA) Need to prevent perpetrators from benefiting from the fact that they are treated differently by moving from one MS to another to avoid prosecution This fight is necessary also in the field of sports: this legislation applies with no exception to offences committed by sport supporters, sport clubs or associations, their leaders, sport players, etc. These types of crimes are particularly harmful to society: as they are committed because of the belonging of the victim to a certain group or because of his/her intrinsic characteristics, they are also committed against the society to which those groups and people with those characteristics belong. Enforcing the law against their perpetrators sends a very powerful message to society. Because of the popularity of some sports in society, their dimension, their media coverage, it is particularly necessary to act against these crimes and to show that they are NOT more justified when it comes to sports: that they are equally punishable.

Fighting specifically against racist and xenophobic speech and crime at the EU level How? Framework Decision adopted in 2008 Criminal law Hate speech and hate crimes Why? Common approach in EU to common phenomenon Same behaviour = offence in all MS Penalties equally effective, proportionate and dissuasive In Sport. Presentation How to fight against certain forms and expressions of racism and xenophobia across the EU? Through a FD (explain, similar to Directives) Through criminal law Against HATE SPEECH and HATE CRIMES (particularly serious forms of R&X) Why? R&X is a common phenomenon to all EU MS (and in the rise, as shown by FRA) Need to prevent perpetrators from benefiting from the fact that they are treated differently by moving from one MS to another to avoid prosecution This fight is necessary also in the field of sports: this legislation applies with no exception to offences committed by sport supporters, sport clubs or associations, their leaders, sport players, etc. These types of crimes are particularly harmful to society: as they are committed because of the belonging of the victim to a certain group or because of his/her intrinsic characteristics, they are also committed against the society to which those groups and people with those characteristics belong. Enforcing the law against their perpetrators sends a very powerful message to society. Because of the popularity of some sports in society, their dimension, their media coverage, it is particularly necessary to act against these crimes and to show that they are NOT more justified when it comes to sports: that they are equally punishable.

Main offences Publicly inciting to violence or hatred By public dissemination or distribution of tracts, pictures or other material Publicly condoning, denying or grossly trivialising: genocide, crimes against humanity and war crimes Nazi crimes Instigating, aiding and abetting + Hate crimes: racist and xenophobic motivation of other offences. List offences (examples in sport: songs, banners, posters, pamphlets, etc) Some or most of them are already penalized in your respective countries. In some of them, the conducts covered are wider or the penalties higher. MS can of course go further. But this legislation brings a minimum common denominator across the EU: the offences contained in this framework decision have to be penalised in all MS and the penalties indicated in the framework decision have to be introduced in all criminal codes so that, when confronted with the commission of any of these offences, no judge in the EU applies penalties that are lower than the ones fixed here. Although the FD focuses mainly on hate speech (above conducts), it also obliges MS to introduce the racist and xenophobic motivation of any other offence (assault, property crime, murder, rape, etc) as an aggravating circumstance or “that it shall be taken into consideration by the courts in the determination of the penalties”. This type of crimes also take place in sport.

Scope Intentional conducts Against a group of persons or member of group Race, colour, religion, descent or national or ethnic origin Investigation or prosecution: not dependent on report or accusation by victim. Explain elements Grounds: this instrument does not include other grounds such as gender, sexual orientation or disability. In a number of MS these grounds are covered

Case of racist speech in sports: German case The NPD published a flyer for the Football World Cup in 2006. The cover of the brochure showed a football player with jersey number 25, complemented by this text: “White is not only a colour for a soccer jersey – for a real national team” Jersey number 25 was the number firmly assigned to player Patrick Owomoyela. Owomoyela, the son of a German mother and a Nigerian father, instituted legal proceedings together with the German Football Federation (DFB) in the spring of 2006. Berlin-Tiergarten Local Court found those responsible for the flyer guilty of incitement to hatred and of jointly-committed defamation. The individuals responsible were sentenced to seven months’ imprisonment, suspended on probation, and additionally had to pay Euro 2,000 each to UNICEF, the United Nations Children’s Fund.

Penalties Effective, proportionate and dissuasive Natural persons criminal penalties (maximum: at least 1 year of prison) Legal persons criminal or non-criminal fines exclusion from public benefits or aid disqualification to practice commercial activities judicial supervision judicial winding-up order Explain penalties Legal persons: they may be held liable for these offences when for example they have been committed by a person who has a leading position within the legal person (i.e. the president or a member of board of a sports club or of an association of supporters). In this case, the natural person committing the offence may be punished but there can be also legal consequences for the club or association. Recent case in FR: Association Nouvelle des Boulogne Boys (supporters’ association of PSG football team) – they displayed an offensive banner during a broadcasted football match (in 2008) against people from the North of France. Following this event a previous episodes of violence, a ministerial decree ordered the dissolution of the club on the grounds of incitement to hatred. They appealed against the ECtHR in Strasbourg who confirmed the decision of the FR authorities.

THANK YOU - BOUGOUDARIA! A common effort Commission Expert Group Implementation by MS Awareness-raising Evaluation report National authorities Enforcement of national implementing legislation The fight against R&X in the EU is a common effort of the EU institutions and the MS The Commission’s priority is the implementation of the FD at national level. MS had to implement this legislation by 28.11.2010. They are now in the process of notifying their implementing measures. The Commission will then analyze the degree of correctness of the transpoisiton and prepare an evaluation report (due by 28.11.2013). In the meantime, the Commission meets with experts from the MS in the framework of a group to ensure the correct transposition of this legislation. But it is not only about modifying the national criminal laws to the FD, it is especially about enforcing it. And this is where you have a role to play. The Commission ensures that national laws penalise the conducts we have seen, but it cannot replace the national enforcement authority that acts against a sport player that incites to hatred or violence against another one player or supporter because of his/her race, colour or national origin. And it cannot replace the judge who will apply the law to this offender. This is where your role comes in. This is indeed a common effort. THANK YOU - BOUGOUDARIA!