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HANS-JÖRG ALBRECHT
Below a threshold of inciting hatred suited to disrupt social peace there should
be no room for criminal law.??
Framework Decision 2008/913/JHA of the European Council of 28 November
2008 on combating certain forms and expressions of racism and xenophobia
by means of criminal law states that “Member States shall take the necessary
measures to ensure that, in respect of offences other than those referred to in
Articles 1 and 2 (incitement to violence etc.), racist and xenophobic motivation is
either regarded as an aggravating circumstance or that such motivation may be
taken into account when the courts determine the level of penalties”. The issue of
sentencing enhancements for hate motives (and the hate crime topic at large) was
driven by hate crime debates and legislation spreading in the US since the early
1980s as well as reports on rapidly increasing numbers of hate crimes affecting
in particular Western European countries after the collapse of the Iron curtain
and at the beginning of the 1990s. Although the German sentencing statute (§46
Criminal Code) requests consideration of motives and motivation (in general)
when imposing punishment, the statute was amended and racist, xenophobic
motives are now explicitly mentioned (see also §33 No. 5 Austrian Criminal Code
or Chapter 6, Section 5 No. 4 Finnish Criminal Code).
It is essentially the use of the offenders’ motive which defines either the (hate)
offence or serves as an aggravating factor enhancing the penalty provided for
the generic crime. Hate crimes are set apart from other crime because they
are perceived to have a special disruptive impact on the entire community (the
victim belongs to) and society at large. This approach has triggered criticism
pointing towards possible infringements of the basic right of “free speech” but
also to serious conflicts with a harm-based theory of criminal punishment and the
particular problem of grading motives with respect to their aggravating nature."
Furthermore, it has been convincingly argued that hate criminal law amounts to
identity politics and that enforcement of such laws will rather raise intergroup
tensions than reduce discrimination and hate.*' Notorious problems are then
associated with attempts of establishing hate motives and computing related hate
crime statistics.”
3° Parliamentary Assembly Council of Europe: Blasphemy, religious insults and hate speech
against persons on grounds of their religion. Recommendation 1805 (2007), No. 15,
“national law should only penalise expressions about religious matters which intentionally
and severely disturb public order and call for public violence”.
George Fletcher, Strafverschärfung bei aus Hass begangenen Verbrechen, zu einem
problematischen Urteil des amerikanischen Supreme Court, Strafverteidiger 14 (1994),
105-106.
James Jacobs — Kimberly Potter, Hate Crimes. Criminal Law and Identity Politics, New
York, NY, OUP, 1998.
Anke Glet, Sozialkonstruktion und strafrechtliche Verfolgung von Hasskriminalität in
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