What are the hate crimes and what the Moldovan law says

Hate crimes are criminal offences committed with a biased motive. This means that any crime against one’s life, bodily integrity or property will be a hate or bias-motivated crime when the person has or is presumed to have a characteristic that is a prohibited ground of discrimination, such as nationality, ethnicity, language, religion, sexual orientation or similar ground. The legislation aiming to address hate crimes as separate crimi- nal offences refers to these grounds as “protected characteristics”. The difference between hate crimes and discriminatory behaviour lies entirely upon whether the behaviour of the perpetrator is or not criminal in nature, and whether the action falls under the Criminal Law provisions. A general discriminatory behaviour will always fall, in most jurisdictions under civil law, in others under both civil and administrative laws, but hate crimes may only be covered by criminal law and procedure. Many legal experts suggest that there is an- other distinction to be drawn, the one between hate crimes and hate speech. Generally speaking, freedom of speech provides that hate speech is not criminal in its nature until it has a prohibited content, such as incite- ment to violence or similar acts that constitute criminal offences. Therefore, depending on the content and consequences that have resulted, hate speech may either fall under criminal law, in particular where there are other criminal offences committed against the person or the group motivated by a protected characteristic, and treated as hate crime or dealt within civil procedure for overstepping the limits of freedom of expression. Hate speech will only qualify as hate crimes where the perpetrator has incited to violence and similar acts and acted upon this incitement to commit criminal offences.

International human rights law requires that States secure protection from all forms of hate crimes in their domestic jurisdictions. These provisions can be found in general international treaties and conventions that have provisions prohibiting discrimination, such as ICCPR and CERD. The latter treaty even requires that “all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin” shall be considered offences punishable by law. The UN Office of the High Commissioner for Human Rights went even further in its General Recommendation No. 30 on the CERD by recommending the introduc- tion in criminal law of a provision stating that “committing an offence with racist motivation or aim constitutes an aggravating circumstance allowing for a more severe punishment”. The International Criminal Tribunal for the Former Yugoslavia also followed this approach in its judgment in the Kunarac et al. case, where it consid- ered ethnic and gender discrimination of the victims as aggravating circumstances when deliberating on the sentence for the main accused.

The ECRI has also called upon Member States to ensure that national laws, including criminal laws, “specifi- cally counter racism, xenophobia, anti- Semitism and intolerance, inter alia by providing [...] that racist and xenophobic acts are stringently punished through methods such as defining common offences but with a rac- ist or xenophobic nature as specific offences [and] enabling the racist or xenophobic motives of the offender to be specifically taken into account”. Additionally, ECRI has recommended that Member States criminalize different forms of hate speech and that for all crimes that do not involve hate speech, the creation of racist groups or genocide, racist motivation should constitute an aggravating circumstance.

The ECtHR has interpreted Articles 2 and 3 of the ECHR to place on Member States the duty to investigate allegations of discriminatory motives. The obligation to investigate suspicious deaths must be discharged without discrimination, as required by Article 14 of the ECHR. Compliance with the State’s positive obligations under Articles 2 and 3 of the ECHR require that the domestic legal system must demonstrate its capacity to enforce criminal law against those who unlawfully took the life of another, irrespective of the victim’s racial or ethnic origin. This also requires that in instances where suspicion exists that racial attitudes may have induced a violent act, the official investigation must be pursued with vigour and impartiality with regard to the need to reassert continuously society’s condemnation of racism and ethnic hatred and to maintain the confidence of minorities in the ability of the authorities to protect them from the threat of racist violence. When investigat- ing violent incidents and, in particular, deaths at the hands of State agents, State authorities thus must take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events. In particular, any evidence of racist verbal abuse by law enforcement agents during an operation involving the use of force against persons from an ethnic or other minority is highly rel- evant and must be investigated with care to uncover any possible racist motives.

The ECtHR has ruled on several vibrant and emblematic cases where state actions were influenced by racial discrimination. In the case of Nachova and Others v. Bulgaria, it was accepted that the killing of two military conscripts of Roma origin after they had escaped had called for a proper investigation into the allegation that the shootings had been racially motivated. While the Court ultimately considered that it had not been shown that racist attitudes had actually played a part in the shootings, the failure of the authorities to inves- tigate the allegations of racist verbal abuse with a view to uncovering any possible racist motives in the use of force against members of an ethnic or other minority had been “highly relevant to the question whether or not unlawful, hatred-induced violence has taken place”. In such circumstances, “the authorities must use all available means to combat racism and racist violence, thereby reinforcing democracy’s vision of a society in which diversity is not perceived as a threat but as a source of its enrichment”. In Ognyanova and Choban v Bulgaria a Roma suspect fell from a third-floor window of a police station while he had been handcuffed. Numerous injuries were also found on his body. The resultant investigation concluded that the suspect had voluntarily jumped out of the window, a finding the Court considered improbable. However, there were no concrete indications in the case file that racist attitudes had played a part in the events, even although there was voluminous documentation on the existence of hostile and prejudicial attitudes on the part of police of- ficers to Roma, there was no indication that this had played any part in the events in the particular case, nor had the applicants pointed to such. In the case of Angelova and Iliev v. Bulgaria the European Court of Human Rights had specifically mentioned the separate criminalization of racially motivated murders or serious bodily injuries and explicit penalty-enhancing provisions relating to such offences as one of the means to “attain the desired result of punishing perpetrators who have racist motives”.

In 2008, the European Union passed a Framework Decision on combating certain forms and expressions of racism and xenophobia by means of criminal law, in an attempt to even out the criminal legislation in all EU member states in the above field. Article 4 of the Framework Decision states that “Member States shall take the necessary measures to ensure that racist and xenophobic motivation is considered an aggravating circum- stance [for criminal offences other than hate speech], or alternatively that such motivation may be taken into consideration by the courts in the determination of the penalties”.

Moldovan Criminal Code has numerous provisions that address hate or bias-motivated crimes. However wel- come this approach may be it is, unfortunately, not always used properly in practice due to lack of clarity of these provisions or lack of knowledge or will to consider the bias motive for proper qualification of the offence where there is evidence to indicate upon one. Article 176 of the Criminal Code118, entitled “Infringement of the right to equality of citizens”, criminalizes any infringement of the rights and freedoms of citizens, guaran- teed by the Moldovan Constitution and other laws, based on gender, race, colour, language, religion, politi- cal opinions or any other opinions, ethnic or social origin, affiliation to a national minority, property or any other situation if it causes considerable damages and was committed by a public official. One step back is the condition to have Moldovan citizenship to claim victim status under Article 176, although under international human rights law Moldova is bound to ensure protection to rights and freedoms of all people on its territory. It also has a very general term “infringement” which although may mean any of the specific actions such as distinction, exclusion, restriction or preference, these are not expressly indicated in the provision. The perpe- trator of this crime may only be a public official if his/her actions simultaneously constitute an infringement of the right or freedom and caused considerable damages to the victim. Article 176 foresees considerable pecuniary fines, community work, imprisonment and/or dismissal.

This provision raises serious issues, one of which is whether Article 176, in its current formulation, is a criminal offence in nature. As indicated above, a clear distinction should be kept between hate crimes and more gen- eral anti-discrimination provisions. There are several aspects included in the text of Article 176 that indicates upon its civil rather than criminal nature. For instance, it lists a number of prohibited characteristics and has a usual open – ending formulation “or any similar situation” which can be found only in general anti-discrimi- nation laws. This open-ended formulation is too unclear to enable those applying the law to understand what other characteristics may be covered here. An authoritative interpretation of the term “any similar situation” to cover other characteristics, which are not expressly listed in the text of Article 176, can provide only the court. However, since the prosecutor is the one that has the burden to prove beyond reasonable doubt that this particular public official had infringed one’s right or freedom, he/she may face an impossible task to gather the necessary evidence to meet the threshold of the burden of proof in a criminal case. Additionally, the prosecutor shall also prove that the infringement has caused considerable damage, which in the case of rights and freedoms infringement in the criminal law, means that the prosecutor needs to show the extent of the infringement caused to the person. A very unclear condition, as is the term itself. Also, the mere mention of “rights and freedoms protected by the Constitution and other laws”, without having specified which rights exactly are being referred to, is also too vague.

All of the above indicates that the wording of Article 176 and the provision itself, fail to meet general inter- national standards of legal certainty and foresee ability of criminal laws. It is this author’s opinion that Article 176 by its nature is a general anti-discrimination provision, not a criminal offence, and as such should be removed from the Criminal Code. The extensive list of the characteristics mentioned in Article 176, without the open- ending formulation “or any similar situation” would be better placed in Article 77 point d) entitled ”Aggravating circumstances” in the Criminal Law.119

This provision already indicates that criminal offences motivated by social, national, racial or religious hatred constitute an aggravating circumstance and once proved in court allows the judge in accordance with Article 78 para (3)120 to apply a maximum punishment provided for that particular criminal offence. There are other provisions that prescribe increased punishments in cases where certain crimes (deliberate murder (Article 145), intentional severe bodily injury or damage to health (Article 151), intentional less severe bodily injury or damage to health (Article 152), deliberate destruction or damaging of goods (Article 197), or profanation of graves (Article 222) were committed with social, racial, national or religious hatred. These specific provisions constitute lex speciales, which do not need a further reference to Article 77. The wording of Article 77 also indicates that Criminal Law puts an obligation on the prosecutor and the court to consider any evidence that indicate beyond reasonable doubt that there was a bias motive, besides others, in committing the crime. As it stands today, Article 77 point d) covers only four characteristics: social status, nationality, race and religion. However none of these four characteristics are backed up with definitions to clarify their meaning. For in- stance, it is unclear whether the term “social status” refers to one’s income stability (poor, rich), social origin, social behaviour, or a set of criteria that gives the person a particular status in the society. Lack of clarity made it a redundant provision in practice. Article 77 point d) of the Criminal Code would benefit to have a more ex- tensive list of protected characteristics that can be components of criminal offences to constitute hate crimes, such as gender, age, disability, sexual orientation, ethnicity, political opinion and affiliation. Although not yet perfect, it should be noted that the fact that Moldovan Criminal Law addresses hate crimes as aggravated criminal offences clearly demonstrates the State’s awareness of the special nature of such crimes and the need to treat them differently from others.

Article 346 of the Criminal Code prohibits “deliberate actions, public instigation, including through mass-me- dia, written or electronic, targeted to provoke national, racial or religious enmity or discord, to humiliate the national honour and dignity, as well as the direct or indirect limitation of the rights or establishing of direct or indirect advantages for citizens depending on their national, racial or religious affiliation.” Yet again the word- ing of Article 346 contains unclear terminology, e.g. “humiliation of national honour and dignity”, “direct or in- direct limitation of rights” or “direct or indirect advantages for citizens”. Article 346 criminalizes hate speech; a practice, which exists in numerous Council of Europe States. It aims to limit a person’s freedom of speech where this freedom is abused to interfere with the basic rights of others. Both Article 19 of the ICCPR and Article 10 of the ECHR stress the importance of freedom of opinion, respectively, expression, and both provisions list specific exceptional situations where this right may be curtailed. According to the case law of the ECtHR, the notion of freedom of expression is also applicable to information or ideas that “offend, shock or disturb”.

The exceptions listed in Article 10, par. 2 of the ECHR must be narrowly interpreted and the necessity for restrictions must be convincingly established. It has been the ECtHR’s constant jurisprudence to indicate that journalists may not be held responsible for the content of information and statements given by others but through media sources. Due to the important function that mass media fulfils in a democratic society, it has a relatively wide margin of appreciation, providing that it reports about the matters of public interest in good faith. Although the press must not overstep certain bounds, journalistic freedom also covers “possible re- course to a degree of exaggeration, or even provocation. The term “public instigations which [...] humiliate the national honour and dignity” may well prove difficult to distinguish between permissible information or ideas that shock, disturb, even provoke public expression and public instigations that insult or humiliate persons or groups of persons.

Both Article 176 and Article 346 are not a hate crime provisions. However out of these two, Article 346 has a more practical application as it criminalizes certain forms of expressions aimed at stirring up hatred while the action at its basis, namely the act of expressing oneself, is not criminal in nature. As mentioned earlier, it is important to distinguish between hate crimes and hate speech.

2012-09-07