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2.1 Germany
2.1.1 Relevant Laws for the Prosecution of Hate Crimes
Constitutional Provisions
The German Basic Law (Grundgesetz), which became the de facto German constitution after reunification on 3 October 1990, defines some basic rights that are relevant to the legal prosecution of hate crimes. According to Article 1 (1), the human dignity of all people shall be inviolable. In Article 2 (1) the right to freely develop one’s personality is protected provided s/he does not violate the rights of others. The right to life and physical integrity are also guaranteed in Article 2 (2), and Article 3 (3) prohibits any discrimination on the grounds of sex, parentage, race, language, homeland and origin; faith, religious or political opinions and disability. Hence relevant markers for hate-sponsored ideologies are defined by the constitution. According to Article 1 (3), all branches of government are bound to directly enforce these articles as law. (3) The prohibition of discrimination beyond public law—such as in private or criminal law—requires specific legislation.
In 2006 another law was passed that applies directly to cases of material disadvantages on the grounds of race, age, gender, politics, sexual orientation, religion or handicap. This new law, the General Equality Act (Allgemeines Gleichbehandlungsgesetz), allows an individual to file a claim against private persons or private and state institutions if they are discriminated against in either private or public life. This includes discrimination in their ability to access to education, work, social services or goods and services. (4) The General Equality Act, however, does not relate to criminal offenses and, thus, not to hate crimes.
Provisions of the Criminal Code
The German Criminal Code (Strafgesetzbuch) reflects this reluctance to define behavior as detrimental to social interaction. (5) Even though the general protection of basic rights of all individuals is described in the German Criminal Code, there is no specific legislation referring to »politically motivated,« »hate« or »biased« crimes.6
There are also no laws in force under which a criminal offense is explicitly recognized as racist, xenophobic, anti-Semitic or homophobic. (7) The only relevant provision in German criminal law that directly refers to crimes on grounds of nationality, ethnicity or religion is Section 130 of the Criminal Code. It bans incitement to hatred or violence against »parts of the population or a national, racial or religious group« and prohibits assaults on »the human dignity of others by insulting, maliciously maligning or defaming segments of the population« (incitement of the people). Holocaust denial, anti-Semitic insults and the justification of hatred against Jews, or calling all migrants »asylum cheaters« are typical cases of incitement of the people and a violation of Section 130 of the Criminal Code. The maximum penalty is three years imprisonment. In legal practice the section is being applied rather cautiously to avoid conflict with the basic right to freedom of expression.
Further more, Section 86 and 86a of the Criminal Code prohibit dissemination of propaganda material from unconstitutional organizations (Sect. 86) and forbid of the use of their symbols (Sect. 86a). Nevertheless, the list of prohibited symbols is limited to organizations of the Third Reich and a few associations deemed illegal after 1945. Hence, the paragraph does not apply to most symbols used by right-wing extremist today and is not sufficiently applicable to combat all expressions of right-wing extremism. Because right-wingers use codes, modernized symbols, trade marks and brands to conceal political messages or membership, they can easily avoid legal prosecution. (8) Nevertheless, an offender’s right-wing insignia—whether illegal or not—can provide an indication of his or her ideological orientation and may be considered permissible evidence for establishing a right-wing motivation. If the relation between the offender’s political opinion and his or her offense is proven in court, the penalty may be enhanced.
Section 46 of the Criminal Code does not define the racist, xenophobic or homophobic motivation of the perpetrators as an aggravating factor for sentencing in court. (9) Nevertheless, it provides the legal basis for taking into account the perpetrator’s motivation, aims and attitudes for determining the punishment. In addition to the law’s provision that »expected effects of the sentence on the life of the perpetrator have to be taken into account« (Sect. 1), it identifies additional factors that must be used in favor of or against the perpetrator, such as his/her attitudes as symbolized by the offense, the manner in which offense was executed, the inflicted damage, the life of the perpetrator preceding the incident, his/her personal and economic situation, and his/her behavior after the incident, especially in terms of his/her effort to compensate for damages and to reach a retribution settlement with the victim. The judge, therefore, has to decide on a case-by-case basis whether the motivation of the perpetrator is permissible in the procedure and whether it should be taken into consideration as an aggravating factor. Public prosecutors are also important for the evaluation of the offender’s motivation, as they head investigations that have to provide evidence for the perpetrator’s intentions, innocence or limited criminal responsibility. In so doing, the existing legislation allows for the perpetrator’s motivation to be considered and investigated, thus complying with directives of the European Union. (10)
In 2007 the federal states of Brandenburg and Saxony-Anhalt, which hold the highest numbers of right-wing offenses per capita, proposed legal modifications to Section 46 of the Criminal Code that would add an explicit reference to political motivations or biases. (11) This would require an amendment to the existing catalogue of criteria that the legal system must consider when evaluating the perpetrator’s motivation. (12) According to the draft of the bill, enhanced penalties should guarantee »that discriminating and dehumanizing motives will be sufficiently investigated and examined by the judiciary in every respective case and, if detected, considered as an aggravating factor for the sentence.« (13) By doing so, hate crime legislation would be introduced into the German Criminal Code for the first time.
Critics, including victim support organizations, have raised doubts as to whether the proposed amendment would lead to the desired results, given that judges and public prosecutors can already apply provisions to extend the penalty. (14) Nevertheless, victim support organizations and other human rights activists recommend requiring investigating authorities in Germany to examine the background of an offense in any case, where the victim perceives a bias motive (similar to regulations in Great Britain). NGOs have also demanded that in all of these legal proceedings, the crime victim should be admitted as a »joint plaintiff,« as determined by the legal instrument of »joint action.«
This concept will be explained next.
3. German Bundestag 2008. Basic Law for the Federal Republic of Germany, Berlin.
4. Bundesministerium der Justiz 2006. Allgemeines Gleichbehandlungsgesetz. In: Bundesgesetzblatt, Jahrgang 2006, Teil 1, Nr. 39 (2006), Berlin.
5. Bundesministerium der Justiz 2008. Strafgesetzbuch, Berlin.
6. The reluctance of German law to specifically address »hate crimes« is a controversial issue in criminology and legal debates. The German Criminal Code, according to Silvia Seehafer, puts the offense, not the offender, at the center of examination.
Seehafer, Silvia 2003. Strafrechtliche Reaktionen auf rechtsextremistisch/fremdenfeindlich motivierte Gewalttaten: Das amerikanische »hate crime« Konzept und seine Übertragbarkeit auf das deutsche Rechtssystem, Dissertation, Humboldt-Universität zu Berlin, Berlin, p. 72. This is to avoid politicized legislation and judiciary and represents a »lesson learned« from German history. Proponents of this position argue that political motivations of an offender are difficult to determine and might open doors for the persecution of political thought. Ibid., p. 77. Oliver Tolmein argues, however, that the offense-based Criminal Code is a mere model towards which laws should be orientated. Numerous examples illustrate that the perpetrator’s intention can not be clearly separated from the act itself. Tolmein, Oliver 2001. Neue strafrechtliche Reaktionsmöglichkeiten auf rassistisch motivierte Gewaltdelikte. In: Zeitschrift für Rechtspolitik, 2001, p. 315-319: p. 319.
7. Tolmein 2001. Neue Reaktionsmöglichkeiten, p. 321.
8. Examples are digit-codes (88 for »Heil Hitler«) and clothing brands like »masterrace« and »consdaple« (encoding the abbreviation of the NSDAP). For years the German brand »Thor Steinar« has been popular in the right-wing scene (not only in Germany) without any serious legal responses to date.
9. In cases of bodily harm with fatal consequences or (attempted) homicide, »hate against foreigners« is regarded as a »base motive« and, as such, is considered an aggravating circumstance, according to the ruling by the Federal Court of Justice in 1999. Seehafer 2003. Strafrechtliche Reaktionen, p. 34.
10. According to Article 8 of the Proposal for a Council Framework Decision on Combating Racism and Xenophobia from 2001, all EU member states must provide for the effective, proportionate and dissuavive punishment of offenses involving racism and xenophobia. European Union 2001. Proposal for a Council Framework Decision on Combating Racism and Xenophobia: Framework Decision on Combating Racism, Brussels.
11. The bill was passed by the Federal Council; its adoption by the Lower House of the German Parliament is uncertain.
12. German Bundesrat 2007. Gesetzesantrag der Länder Brandenburg und Sachsen-Anhalt: Entwurf eines Gesetzes zur Änderung des Strafgesetzbuches—Strafrechtsänderungsgesetz, Drucksache 572/07, Berlin. The list of criteria included in this bill refer to political attitudes, nationality, ethnicity, race, skin color, religion, world view, origin, outward appearance, disability or sexual orientation of the crime victim. In this regard, the bill goes even further than the Hate Crimes Sentencing Enhancement Act, adopted in the US in 1994, which does not consider disability, gender or sexual orientation. US Congress 1994. Hate Crimes Sentencing Enhancement Act, 28 U.S.C. 994, Washington.
13. Ibid, p. 3.
14. Opferperspektive e.V. 2007. Standortbestimmung der OPP zum Vorschlag der Strafschärfung bei rechtsextremen Gewalttaten, Potsdam.
(OPP)
