Members of the European Commission
Against Racism and (ECRI), the Organization for Security and Cooperation in Europe
(OSCE) and the UK Institute of Race Relations have explained that Hate Crimes
are a measure created to protect groups that are discriminated against and not public
servants.
Original article in Público (Spanish version) here.
24 June 2018 - Miquel Ramos - @Miquel_R
After the many complaints filed and investigations
conducted into supposed hate crimes where the alleged victims have been officers
of Law Enforcement Agencies, the newspaper Público has
consulted the main international bodies and several experts in the field as to
whether the police can be victims of hate crimes.
The legislation in question, which Spain delayed
applying for years, was created to protect those social groups seen as most
vulnerable and is now the subject of debate following cases where numerous
people have been accused of hate crimes against the police.
There are scores of cases waiting to be heard just
as former Interior Minister Juan
Ignacio Zoido warned. They range from teachers, activists and Catalan politicians
who criticised and protested at police violence during the 1 October referendum
last year to the Ahora Madrid Councillor, Rommy
Arce, who publicly expressed – on social media – her condemnation of police
action in Lavapiés where a young street seller died.
In Arce’s case, they have also accused Malick Gueye, spokesperson of
the Streetsellers Union, of a
supposed hate crime against the police. The aggravating circumstance of hate
crime has also been used against the group of young men in Altsasu, convicted
following a bar brawl with members of the Civil Guard.
In some cases, such as the case of the teachers in
Seu d’Urgell, the courts dismissed the hate crimes accusation and insisted that
the Civil Guard could not be considered as a “discriminated or threatened
group.” The charge of hate crime cannot
be confused with the “offences of slander or insult "given that a hate
crime requires the existence of a discriminated or threatened group as the
passive subject and the incitement towards the infringement of the rights of
this group” is the conclusion of this judicial writ.
Liz Fekete, director of the London-based Institute of Race Relations, was
surprised by these and by other cases in Spain. This body, which has monitored racism
and civil liberties across Europe since 1992 and which has investigated hate
crimes in the EU, has stated it is “alarmed” to find that in Spain people are
being accused of hate crimes merely for criticising the police through humour
or other means.… for allegedly attacking officers, a crime which can already be
tried and sentenced under criminal law.
Ms. Fekete has written widely on the subject and
has been a consultant to various international bodies, including being a
Special Rapporteur to the United Nations with regard to contemporary forms of
racism. She was also an expert witness on the Peoples’ Tribunal and on the
World Tribunal for Iraq.
In her remarks to Público, she warned
that “hate crimes legislation with, measures against discrimination, and
International Human Rights legislation are there to protect vulnerable groups
and must never become a shield for police officers to hide behind.”
Criminal lawyer Laia
Serra, an expert in hate crimes and human rights, agrees with Ms Fekete’s
points: “The police already have a series of offences which protect them, such
as Undermining the authority of the Law (Criminal Code 550) in cases of
physical attacks, libel (Criminal Code205) and slander (Criminal Code 208) or
insults aimed at the police corps (Criminal Code 503.2)
When the police, are carrying out a State duty, they
are not exercising a fundamental right. They are a corporate body, not an
identity group and even less a group with a structural disadvantage towards
exercising their basic rights.
The perception that hate crimes are applicable to
the police is itself an abuse of the Law, a distortion of the anti-discrimination
legislation.
Organisation for Security and Cooperation in Europe
(OSCE) spokesperson Thomas Rymer denies that the police are being sheltered by
this legislation only because of their profession. However, the prosecution in
Las Palmas has confused the issue further by defining the police as an “ideological group” representing,
according to the Ministry, “some basic fundamental political ideas, identifying
with the established legal order.”
After the dismissal of a case in which several young
people were accused of mocking the death of a police officer on social media,
the prosecution appealed against the acquittal which stated that “it is not
possible within strict technical terms to carry out a broad interpretation of
article 510 of the Criminal Code that might permit the inclusion of a
profession as a victim of a hate crime.
These contradictory interpretations and
implementations of the law are producing widespread doubts both inside and
outside the Spanish state.
“These trials undermine the legitimacy of laws
designed to protect people against racism. Spain, as far as we know, is the only
country in the EU that is following this path. Considering
the past history of authoritarianism in Spain, the Institute of Race Relations believes
it is time for the EU and the international community to pay
more attention to these developments in the Spanish judicial system.
Rymer denied to this paper that the profession of a
person was considered a characteristic object of discrimination as has been
suggested, underlining that the grounds would be race, ethnicity, language,
religion, nationality, sexual orientation, sex or any other fundamental
attribute but still denies that the
police are being sheltered by this legislation, based solely on their
profession.
Wolfram Bechtel, a lawyer on the European Commission Against
Racism and Intolerance (ECRI) of the Council of Europe, when asked to comment
by Público, affirmed that “a police officer could also, in
principle, be the victim of a hate crime if he suffers, for example, a racially-motivated
attack, but not solely based on his profession.
Bechtel reiterates, after seeing numerous cases in
Spain where such accusations of hate crimes are creating many doubts that the ECRI
“has stated that hate crime legislation must not be misused by the police or
other authorities” and cites examples of the warnings given to Turkey and
Azerbaijan in its 2016 report, for precisely these reasons.
Hate crimes do not have a standard definition and “this
complicates its interpretation” says Laia Serra. He points out that “all agreements which forbid
discrimination such as the Convention on the Prevention and Punishment of the
Crime of Genocide, the European Court of
Human Rights, the European Charter of
Fundamental Rights, the Additional Protocol to the Convention on Cybercrime, the
framework decision 2008/913, the General
Recommendation 5 of the ECRI, etc. are interpreted in the context of these
historical categories and increased protection for public officials has never
been contemplated.”
The Catalan lawyer also insists that the purpose of
hate crimes legislation – increased protection provided by higher sentences –
is only for cases where there is a need for specific protection to overcome
obstacles in the exercise of fundamental rights, by those who have a clear
historical or social disadvantage in exercising these rights.
The Spanish judge and spokesperson for Judges for
Democracy, Joaquim Bosch, also cites the
sentence of The European Tribunal of Human Rights that condemned Spain for
violating the freedom of expression of several activists convicted of burning
photographs of the Spanish monarchy.
A hate crimes offence was added to the sentence
handed down in 2007 to two young people for these acts, it being considered
that they had incited violence against the monarchy.
“Using a hate crime clause against criticisms of
institutions or public bodies distorts
the aim of the working principles which are to protect specific
minorities. Shielding State institutions from valid and potential criticism,
undermines freedom of expression,” says Bosch.
In 2009, the Office for Democratic Institutions and
Human Rights of the OSCE published a practical guide to Human Rights
legislation aimed at countries so that they could apply the recommendations in
this area.
This guide already stated that while attacks
against police officers may be considered as serious offences, this did not
mean that they could be included in hate crimes.
“This non-inclusion does not mean that there are
not criminal sanctions. In most jurisdictions, attacks against police officers
or members of the armed forces are considered as serious offences It is simply that they do not enter into
the definition of hate crimes”, says the report.
