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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 40 41 42 + 112 +
