Minister of Justice, Transparency and Human Rights
Ministry of Justice
96 Mesogion Avenue
March 1, 2013
Dear Minister Roupakiotis,
I am writing on behalf of Human Rights Watch to share with you our analysis of the proposed modification of the Greek Criminal Code with respect to penalty enhancements for racially-aggravated crimes. We welcome your initiative as an important acknowledgment of the need to improve criminal justice response to bias crimes, including xenophobic violence against migrants and asylum seekers in Greece. However, we are concerned that the measures included in the “Narcotics Act and Other Provisions” bill currently under examination in the Hellenic Parliament does not go far enough to address the failings of the police and the judiciary in combating bias crimes.
Human Rights Watch is an independent organization dedicated to defending and protecting human rights, working in around 90 countries around the world. We have closely monitored the human rights situation in Greece over the past five years. In our July 2012 report Hate on the Streets: Xenophobic Violence in Greece we document the failure of the police and the judiciary to prevent, investigate, and prosecute xenophobic violence.
As you know, the Greek Criminal Code was amended in 2008 to introduce “national, racial, religious hatred” as well as “hatred due to different sexual orientation” as an aggravating circumstance in the commission of a crime. Article 79(3) of the Criminal Code allows judges to consider bias motivation, among other aggravating circumstances, for the purposes of sentencing upon a finding of guilt for the basic offense. Upon finding bias motivation, judges have the discretion to apply the maximum prison term envisioned for the crime committed. To our knowledge, this provision has not once been applied in the four years since its introduction. We spoke with eight senior prosecutors and one official in the Justice Ministry and none could cite any cases.
The “Narcotics Act and Other Provisions” bill tabled on January 24, 2013 would amend Article 79(3) to forbid the conversion of a prison sentence into a fine as well as forbid the suspension of the sentence in cases where bias motivation has been established as an aggravating circumstance. While this measure could help ensure that the punishment for racially-motivated violence is commensurate with the crime, it is insufficient to address the failings of the criminal justice system to identify, investigate diligently, and prosecute bias crimes.
A critical problem is the fact that racist motivation may only be addressed in the sentencing phase, rather than during the trial for the determination of guilt. This means that police and prosecutors are less likely to investigate potential bias elements of a crime from the outset, making it more difficult to prove racist motivation beyond a reasonable doubt. Several prosecutors with whom we met in the course of our research, as well as the newly appointed Hate Crimes prosecutor in the Athens Prosecutor's Office, argue that prosecutors would be more able to ensure proper gathering of evidence and prosecute effectively if bias was an integral part of the legal definition of an offense and/or bias motivation as an aggravating circumstance was incorporated into specific articles of the Criminal Code.
We acknowledge that there are different approaches in the European Union to legislating bias crimes. Some jurisdictions (for example the Czech Republic and the United Kingdom) have created substantive offenses for which bias motivation is an essential part of the offense. Many other jurisdictions, as in Greece, envision penalty enhancements for offenses when committed with a bias motivation. To ensure an effective remedy to victims of bias crimes, both the European Commission on Racism and Intolerance and the Office for Democratic Institutions and Human Rights (ODIHR) of the Organization for Security and Co-operation in Europe recommend a combination of substantive offenses and penalty enhancements.
Human Rights Watch does not take a position on whether bias crimes should be punished as substantive offenses or through penalty enhancement, or a combination of the two. However, well-crafted bias crime legislation must have certain key elements to ensure that prosecutors and the courts dispose of the necessary tools and obligations. We regret that the proposed reform does not take into account these key elements identified by ODIHR:
- Bias crime laws should acknowledge explicitly that perpetrators sometimes have mixed motives, such that the presence of multiple motives does not preclude investigation and prosecution also for the bias motivation;
- Prosecutors should be required to investigate possible bias motive in a crime, and to present any evidence to the court;
- The court should be required to consider evidence of motivation, and to explain the reasons for applying or not applying a penalty enhancement.
Adequate enforcement of the law and transparent data collection are also key to combating bias crimes. We therefore also urge you to:
- Ensure, either in law or through binding circulars, that regardless of the nature of the offense, any crime that may be categorized as a hate crime is subject to mandatory state action – investigation and prosecution – without the requirement that victims pay the 100 Euro (US$ 125) fee;
- Ensure appropriate training, including through inclusion of special seminars in continuing professional education courses, for prosecutors and judges in national and European anti-racism legislation, and in particular the aggravating circumstance of racial motivation in the commission of a crime;
- Move swiftly to establish a centralized data collection system, in cooperation with the Ministry of Citizen Protection, to collect and publish on a regular basis statistics on preliminary investigations, pending trials, verdicts, and sentences for racially aggravated crimes;
- Develop and disseminate specific guidelines for the proper investigation of racist motivation through interrogation processes and other means of collection of evidence by all public prosecutors. The results of such investigations for any crime that may be categorized as a bias crime should be included in the respective case-file;
Use your good offices to ensure that the specialized police units created in January 2013 to receive and investigate racially-motivated crimes have the mandate and training to address also other types of bias crimes covered by Greek legislation, including crimes based on sexual orientation.
In closing, we would like to reiterate that Human Rights Watch is encouraged by increasing acknowledgment of xenophobic violence as a serious problem in Greece. We welcome your initiative to draft a National Action Plan on Human Rights and stand ready to assist in any way possible. We are convinced that a comprehensive approach is necessary to ensure effective response of the justice system to perpetrators of bias crimes and genuine redress for victims. Such an approach requires adequate training, the removal of disincentives to reporting bias crimes, and systematic recording of incidents, in addition to diligent investigation of racial motivation.
Europe & Central Asia Division
Human Rights Watch
Evangelos - Vasileios Meimarakis, Speaker of the Hellenic Parliament
Anastasios Nerantzis, Rapporteur, Standing Committee on Public Administration, Public Order and Justice
Vassiliki Katrivanou, Rapporteur, Standing Committee on Public Administration, Public Order and Justice
Athanasios Bouras, Secretary General, N.D. (New Democracy) Parliamentary Group
Alexis Tsipras, President, SYRIZA Unitary Social Front Parliamentary Group
Evangelos Venizelos, President, PA.SO.K. (Panhellenic Socialist Movement) Parliamentary Group
Panagiotis Kammenos, President, Aneksartitoi Ellines (Independent Greeks) Parliamentary Group
Nikolaos Michaloliakos, President, Chrysi Avgi (People's Association - Golden Dawn) Parliamentary Group
Fotis Kouvelis, President, DHM.AR. (Democratic Left) Parliamentary Group
Aleka Papariga, K.K.E. (Communist Party of Greece) Parliamentary Group