Xenophobia, radicalism and hate crime in Europe 2015

1.1. Discriminatory trends in european legislation

One of the most significant elements contributing to discriminatory trends in European legislation is the non-recognition of racial or religious hatred as an aggravating circumstance in a crime. Of the countries under review in 2015, four had lacked such a provision – France, Greece, Hungary, and Poland. Until recently, the German legal system had a similar deficit, where Article 46 of the Criminal Code left it to the discretion of the court.[1] However, on March 19, 2015, the Criminal Code had been updated to include Art. 46.2., according to which “hate motives” are to be considered during sentencing.[2] In Ukraine, criminal responsibility for a hate crime is linked to “direct intent”, which must be proved. In Italy, hate views only affect sentencing if the crime was committed with the aim of influencing the broader public in order to “change its behaviour”, which is also difficult to prove in court.[3]

A no less important discriminatory element in European legislation is the unequal legal treatment of specific religions. For example, Greek legislation allows for discrimination of non-traditional religions with Article 13(2) of the Constitution, which states that “all known religions shall be free and their rites of worship shall be performed unhindered and under the protection of the law.” Paragraph 3 of the same article has the same qualifier, which deals with “insulting Christianity or any other known religion.”

It is worth noting that Greece legally recognises only three religious organisations: The Greek Orthodox Church, Thracian Muslims, and the Jewish community. Other organisations that consider themselves religious are excluded from this status and thus cannot own property as legal religious bodies.[4]

Hungarian Law “On the right to freedom of conscience and faith, religion, church, and religious organisations” (2011) also created problems for new religious organisations that have not been present in the country for more than 20 years and who have less than 1000 followers permanently residing in Hungary.

German legislation also provides for inequality of some religious organisations, dividing them into “corporate bodies under public law” and others. Corporate bodies under public law have the right to collect their part of the Church Tax, which is derived from the taxable income by the regional financial body (Finanzamt) and given to the community. Other religious organisations are deprived of this status, which presumes that a religious community is guaranteed long-term existence by its statute and the number of followers. Currently, such status is applied to various Christian denominations, including Orthodox Mormons, Jehovah’s Witnesses, as well as the Jewish community, and the Union of Religious Communities that consists of several smaller communities and sects (predominantly Christian). Meanwhile, the Muslim community in Germany, which has more than 4 million members (almost 5 % of the population), does not fall under the status of a corporate body under public law, despite meeting all necessary conditions.

Similar issues can be observed in Italy. In this country religious communities that have not entered in a concordat (e.g. Muslims) with the government encounter various problems.

Ukraine amended its Law “On freedom of conscience and religious organisations” in 2012, making registration of religious organisations more difficult and providing various government bodies with the authority to monitor and control their activities (including Prosecution, Ministry of Culture, and other local and central bodies). 2012 amendments also introduced a procedure for conducting peaceful public religious events, which contradicts Article 39 of the Ukrainian Constitution.

It is worth mentioning the Law “On protecting religious feelings,” adopted by Russia in 2013.[5] The law is characterised by its vague wording, essentially opening up the possibility of prosecuting criticism or disrespectful portrayal of religious organisations in art. For example, the law introduces the concept of “public actions displaying clear disrespect towards a community and committed in order to insult religious feelings” (Article 148.1 of the Criminal Code)[6], but does not further expand on its meaning, which allows for misuse of the law, particularly towards atheists and members of “non-traditional” religions.

However, the most significant problems in European legislation are laws regulating inter-ethnic relations.

There are several countries in Europe that do not recognise the presence of ethnic minorities as such, which deprives them of corresponding rights that may differ from the regular human rights. Ethnicity and self-determination of minorities are excluded from the legal and political vocabulary in countries like France and Greece (excluding Western Thrace). The argument for this practice is that granting “special rights” to certain national minorities would escalate racism and inequality on ethnic grounds. Thus, France and Greece have been reluctant to join the Framework Convention for the Protection of National Minorities and the European Charter for Regional or Minority Languages. Meanwhile, de facto national minorities in France and Greece constitute for at least 10 % of their populations. Their presence is officially unrecognised, and therefore, their rights are not protected.

This problem exists in various shapes and forms in other monitored countries, except Russia, which has more than one hundred different nationalities. However, Russia adopted a completely different nation-state model, which it inherited from the Soviet Union as a state founded on an idea, rather than traditions of the titular nation.

Non-indigenous peoples – particularly immigrants – are affected by this the most. However, there also millions of citizens in Germany, for example, who were born in these countries, but not recognised as national minorities due to not identifying themselves as any of the 4 accepted ethnic groups. These are Turks, former Yugoslavians and people of Asian and African origins, who are excluded from the Framework Convention.

These factors indicate that the rights of most national minorities in Europe are not observed on a legislative level.

1.2. Changes to counter-extremism and minority rights legislation

Legislative changes in Europe this year were predominantly aimed at solving the following issues: a) rapid illegal immigration; b) integration of legal immigrants; c) social radicalisation; d) terrorism. This was done by introducing tougher migration and anti-racism legislation, and combating various forms of hate crime. The European Union also continued to liberalise LGBT relations. However, countering terrorism has been the main objective of European legislators in recent years.

France, which has the highest number of radical Islamist groups in the European Union and has suffered most from extremism in the region, had adopted a Security and Counter Terrorism Act in December 2012. The law provided for much tougher punishment for people complicit in terrorist activities.[7] On November 4, 2014, France adopted another counter-terrorism law that allowed its authorities to confiscate passports and prohibit exit for people who are leaving for Syria and Iraq with the intention to join radical Islamist organisations. The law also allowed for extra-judicial blocking of Islamist websites.[8]

In 2015, France furthered its anti-extremism legislation by adopting a surveillance act (July 24, 2015), which among other things allowed the security services to plant so-called “black boxes” at internet service providers in order to “monitor traffic and suspicious behavioural patterns through the real-time analysis of metadata.”[9]

Note that the French were particularly critical of the United States Counter Terrorism Act, adopted following the 9/11 attacks and containing similar provisions. Thus, following the adoption of the French counterpart of the Act, President François Hollande sent the bill for the approval of the Constitutional Council, which found it corresponded to the French Constitution.[10] This was an unprecedented step since the Council’s establishment in 1958.

It is fair to say that French and American anti-extremism legislation formed the model for counter terrorism legislation in many countries around the world.

In 2015, Germany[11] and the United Kingdom[12] adopted new counter terrorism acts. Italy and the Netherlands also tightened their counter terrorism legislation during the monitored period.[13] In 2016, Russia is to follow their example.[14] In 2015, Russia had increased fines for the production of media containing the justification of, or public calls for, terrorist or extremist activities[15].

Analysing modern European counter terrorism legislation reveals several of its key elements:

1. Possibility of temporary border control or closure.

2. Introduction of pre-trial ban on travel and confiscation of travel documents, based on security intelligence.

3. Legalisation of internment, deprivation of citizenship, and deportation of persons complicit in terrorist activity (amendments to the Citizenship Act of the Netherlands allows for the annulment of citizenship in the interest of national security).

4. Increased online surveillance.

5. Tougher measures to combat the funding of terrorist activities.

6. Closer monitoring of suspicious activity or behaviour through cooperation with ISPs, transport, medical and other services.

7. Bans on social welfare for so-called “Jihadi tourists.”

Another group of legislative changes in Europe in 2015 focused migration flows.

In July 2015, Germany tightened its Refugee Act, introducing criminal liability for providing false information when seeking asylum. Illegal migrants can not only be arrested, but also have their passports taken away until further notice. Federal Minister of the Interior Thomas de Maizière (Christian Democratic Union) said that strict treatment of new migrants is necessary to ensure that the public agrees with immigration and entry of people who are really in need of Germany’s protection.[16]

In July and August, Hungary amended its border regulations and introduced criminal responsibility for illegally entering the country.[17] It also recognised Servia as a “safe third party”, which allowed for a quick return of transit refugees to that country. The law introduced army presence at the border and allowed the use of non-lethal measures against migrants and refugees, including rubber bullets and tear gas.

Russia is taking measures to streamline the immigration process. As of May 2015, Russian authorities rejected entry for 1.35 million foreign nationals who violated the regulations of stay. Registration of foreign nationals has been somewhat improved. Previously, many migrant workers were registering in so-called “rubber flats” – addresses that have no relation to their actual place of residence. Such flats often officially housed hundreds of migrants, who actually lived in other places, or did not have housing at all. Since the adoption of a corresponding law, the number of rubber flats was reduced from 10,090 to 1,160.[18]

On September 17, 2015, British Parliament introduced a new Immigration Bill, which was the result of a Conservative policy aimed at attracting Eurosceptics and those concerned with the increased flows of refugees.[19] This policy culminated in summer 2016, when following a national referendum Britain voted to leave the European Union. The Immigration Act was criticised by the British public, as it was aimed at reducing the number of immigrants and people seeking asylum by reducing social welfare and tightening the control over the housing and labour market.[20]

In 2015, the British government announced a plan to increase youth employment. It was proposed that jobseekers aged 18 to 21 will be sent to work boot camps – doing community service for 30 hours per week, four weeks per year, or face losing their Jobseekers Allowance.[21]

This sparked criticism from the public, including the fact that the bill would have been primarily aimed at national minorities and immigrants, as these groups have the highest levels of youth unemployment. For example, youth unemployment in black communities in the country is more than 50 %.[22]

France had also transformed its immigration legislation in 2015. Applications for asylum have been sped up from the maximum of 24 months to 9 months. At the end of this term, asylum seekers are to be granted asylum or deported from the country. Asylum seekers are now placed in special camps across the whole country (easing the burden on the Paris region), and under threat of losing social assistance and other privileges. In addition, the French parliament started considering a new bill on the rights of foreign nationals.[23]

The third group of legislative changes adopted in 2015 was aimed at streamlined integration of legal immigrants.

In June 2015, Greece adopted a law that automatically granted Greek citizenship to children of foreign nationals born in the country. This bill affects almost 200,000 second-generation immigrants.[24]

A similar bill was adopted in Italy. At the time of writing, it is awaiting the Senate’s approval. The so called ius soli act also provides citizenship to children of foreign nationals, provided they are permanent residents in the country. The law specifically mentions that it is targeted at non-EU citizens.[25] Experts believe that this law means that the new generation of Italians who are almost fully integrated into society (with knowledge of language, traditions, and having received education in Italy) will finally be able to identify themselves as part of the nation.

European governments have been taking measures to encourage immigrants to adapt to new realities. However, these measures often result in outright forced denouncement of their identities. This was most apparent in the Netherlands, which adopted amendments to its integration legislation that affected non-EU citizens seeking residency. The new bill requires people who have been residing in the Netherlands for several years to pass a language exam and demonstrate knowledge of the local labour market. Some human rights observers believe that these exams are of no practical help to immigrants; rather, they demonstrate negative attitudes towards immigrants and facilitate isolationist tendencies. For example, migrants from Maghreb and Africa are asked what they would do “if they saw two men kissing on the street.” Expressing negative views in this case often results in failing the exam.[26] As a result, many refuse to take the exam altogether.

This is a typical example of how European governments try to speed up the integration of legal immigrants, where integration comes in the form of assimilation and loss of traditional identities.

Russia has been seeking to improve the conditions for the employment of migrant workers. Since January 2015, people from countries with a visa-free agreement with Russia can seek employment outside quotas by acquiring a work patent (permit), provided they have indicated “work” as the reason for entry in the country. Thus migrant workers have been divided into two categories, which was supposed to improve the position of migrants from visa-free countries. However, the project turned out to be fraught with bureaucratic problems (see Section 2).

Finally, the fourth legislative trend in 2015 was related to combating radicalisation, racism, xenophobia, and facilitating peaceful religious relations.

On September 25, 2015, Poland introduced amendments to the Law on National, Ethnic Minorities, and Regional Languages (January 6, 2005). The proposed Article 9 of the Law on Supported Languages states that a minority language may be used in communication with municipal authorities to the same extent as the official language. This condition applies to municipalities where a “supported” linguistic minority group constitutes for 20 % of the population or above.[27] President Duda, however, had vetoed the bill citing the “high cost of implementation.” It is to be reviewed in parliament in 2016.[28]

In 2015, the German Criminal Code was amended with Art. 46.2, which instructed the courts to consider racist, xenophobic, or other discriminatory motives as aggravating circumstances in the commission of a crime.[29] This is an important development, since previous German legislation did not cover these factors when dealing with violent crime, stating instead that the courts may take them into consideration during sentencing.

In Greece, a proposed amendment to the Criminal Code (Article 361B) introduced criminal responsibility for refusing goods and services on the basis of race, colour, national or ethnic origins, religion, disability, sexual orientation, and gender identity. The article came into force in July 2016[30], and is predominantly aimed against the neo-Nazi Golden Dawn party, which regularly organised giveaways to “pure” Greeks during Orthodox holidays.[31]

The decade-long debates surrounding the construction of a cathedral mosque and a mosque at a Muslim cemetery in Athens continued in the Greek parliament throughout 2015. The issue was first raised in 2006 and finally approved by parliament on August 3, 2016.[32] Advocates for the mosque argue that the project has more social than religious connotations, as it is aimed to improve the position of minorities in Greece. Education and Religious Affairs Minister Nikos Filis argued that Greece should avoid mistakes made by other European policymakers that left many migrant communities socially isolated and vulnerable to the threat of extremism. «It is truly the elephant in room: Europe has not accepted that Islam is a reality,» he told parliament. “The existence of makeshift mosques (in Athens) is a disgrace for our country.”[33]

France has taken significant steps in combating xenophobia and hate crime in 2015, introducing the New National Plan of Action to Counter Racism and Anti-Semitism for the period until 2017.[34] The plan was published on April 17, 2015 and contains the following elements: organisation of a public awareness campaign in support of national minorities; physical protection of Jewish and Islamic schools, places of worship, etc.; establishment of a national department to combat hate speech online, and others. However, more importantly, the plan proposes a prompt modification of the French criminal law to introduce racism and anti-Semitism as aggravating circumstances in all violations. On October 8, 2015, President Hollande instructed the Justice Minister to prepare a formal proposal of this bill by the end of the year.[35] The bill is currently being reviewed by parliament. There is also a possibility that sexism will be included, alongside racism as an aggravating circumstance in the commission of a crime.[36]

On November 23, Russian President Vladimir Putin signed a law that prohibited recognising the main Christian, Muslim, Jewish, and Buddhist texts as extremist. The law will apply to the Bible, Koran, Tanakh, and Kangyur.[37] The law became necessary when Yuzhno-Sakhalinsk City Court recognised a Muslim book “Dua to God: its purpose and place in Islam” as extremist, finding that the book promoted the superiority of Islam over other religions. In November, the decision was overruled, and the bill prohibiting the recognition of ancient religious texts as extremist followed shortly afterwards.[38]

In 2015, a whole range of bills aimed at harmonising ethnic and religious relations have been adopted in Ukraine. However, some of them have sparked criticism among human rights activists and minority groups. On August 25, 2015, President Petro Poroshenko signed the Decree № 501/2015 “On the Approval of the National Human Rights Strategy”.[39] The strategy listed several systemic problems in Ukraine related to human rights and freedoms and focused on preventing and combating discrimination, as well as “ensuring the rights of indigenous peoples and national minorities”, aiming to bring Ukraine’s anti-discrimination legislation in line with international standards.

On November 12, 2015, the Ukrainian parliament (Verkhovna Rada) introduced amendments to the Labour Code in order to harmonise anti-discrimination legislation with the European Union.[40] The bill prohibited any form of discrimination in the workplace, including sexual orientation, gender identity, disability and others.[41]

In December 2015, the intergovernmental Ukrainian-German commission was established to deal with affairs relating to German nationals living in Ukraine.[42]