Leaked draft: EU wants to make "hate crime" an EU-wide felony

A leaked draft of the list of plans by the European Commission shows that the Commission wants to follow a new approach to introduce "hate crime" as a felony in the entire EU. There have been several attempts since 2021.

Already during her first term as Commission president, Ursula von der Leyen wanted to declare "hate crime" a EU felony.

The magazine Euractiv recently published a draft of the list of all initiatives that the European Commission wants to implement this year. On Tuesday, February 11th, the final list is to be presented by Ursula von der Leyen to the members of the European Parliament. The European Commission president wants to tackle another initiative so that "hate speech" is recognized as a felony in all of the European Union.

Already in 2021, during her first term as Commission president, the Commission presented a corresponding legal initiative. The parliament agreed to the initiative, but there was no agreement in the Council of the European Union. Because "hate crime" can only be introduced as a EU-wide felony if all member states agree. In November 2023, members of the European Parliament demanded again that the initiative shall be followed on.

Crimes need to meet certain requirements in order to be considered "EU crimes". These requirements are stipulated in Article 83 Paragraph 1 on the work of the European Union. The crimes must be cross-border, the acts must be categorized as "particularly severe crime", and there must not be an alternative to the expansion of EU crime status to get the crime under control. So far, among EU felonies are human trafficking, terrorism, and money laundering. "Hate speech" allegedly is cross-border not only because of the Internet, but also because media such as newspapers are able to distribute content far and wide.

So far, at the level of the European Union, discrimination on the basis of skin color, religion, or s*x is punishable. The European Commission argues that the introduction of a felony "hate crime" is necessary because hate not only harms the individual victim, but "also society at large", as the legal initiative from 2021 says. "Hate undermines the very foundations of our society. It weakens mutual understanding and respect for diversity on which pluralistic and democratic societies are built", it continues.

When "hate crime" is fundamentally recognized as a felony in the European Union, then, in a second step, the Commission together with the Parliament and the Council of the European Union, in the scope of the regular legislative procedure, can set concrete characteristics of the felony "hate crime". Also, the three institutions can then decree minimum regulations that are then valid in all member states.

Currently, in EU law, there is no definition of hate speech and hate crime. On the definition of the term "hate speech", the Commission refers to a recommendation by the European Council from 1997, in which it states that hate speech is the incitement of hate because of certain protected characteristics like religion or s*x. The term "hate crime" is being defined in a recommendation by the European Commission in 2015 as "advocacy, promotion or incitement, in any form, of the denigration, hatred or vilification of a person or group of persons." A "negative stereotyping" is also seen as "hate crime". In that, it is about characteristics like an alleged social gender identity, age, origin, s*x, or religion.

Based on these two documents, the Commission speaks of "hate crime" being any crime with a motive based on prejudices. Specifically, the initiative from 2021 says: "For both hate speech and hate crime, it is the bias motivation that triggers the perpetrator's action." Furthermore: "These are 'identity' or 'message' acts, as the messages conveyed - notably that the targeted victims do not belong to that society - are addressed not only to the victim, but also to their community or group."

Accordingly, the motivation of the perpetrator is crucial for the felony. In addition, the text says that "hate crime" and hate speech "undermine the foundations of the EU". The European Court of Human Rights (ECtHR) decided in 2006 that it could be necessary for "democratic societies to sanction or even prevent all forms of expression which spread, incite, promote or justify hatred based on intolerance".

The right to freedom of speech does not protect against law enforcement reactions to hate speech, the ECtHR says. The legal initiative from 2021 also refers to the concept of a "ladder of harm" or "pyramid of hate", according to which hate not only leads to discrimination or insults, but also "bias motivated violence" like r*pe, murder, or genocide. As an example, they refer to a study according to which hate-filled tweets lead to an increase of hate crime in a city.

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