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2 The Legal Framework for Monitoring and Fighting Hate Crimes
National legislation can provide a valuable tool to the criminal justice system by passing laws to prosecute offenders and support victims of hate crimes. However, laws should be viewed as one component among others in a broader struggle to combat manifestations of right-wing extremism, anti-Semitism, racism and homophobia. Whether laws can serve as an important tool in this struggle or as a solution for those targeted is linked to a variety of factors. These factors may include but are not limited to: specific national legal and civic cultures such as the competency and attitudes of public servants to address the complexity of the problem, and the social and political standing of the communities and groups most affected by those crimes.
Especially in the post-Communist countries of central and eastern Europe, extensive legal frameworks and provisions are often already in place to formally protect individuals and minority groups from civil and human rights violations. Nevertheless, these mandates do not, in many regards, correspond with dominant political ideologies and the actual implementation of the laws. Different experiences of NGOs with state and law enforcement agencies also seem to have an influence on how these organizations perceive the relevance of legal frameworks. While organizations in Germany commonly assist victims of hate crimes in taking legal steps against their perpetrators and accompanying them through court proceedings, anti-racist groups in Poland have not traditionally been very active in developing litigation strategies. (1) Furthermore, the provisions against hate crimes in the Polish legislation and their implementation have not been the subject of any systematic assessment or research carried out by independent legal aid associations or academics. (2) Government reports dealing with law enforcement activities and the implementation of provisions for anti-Semitic, racist and xenophobic crimes are usually not publicly available.
In the following chapter we will look at the national legislation in both countries and how it deals with bias-motivated attacks. Each section, separated by country, starts with a brief account of the most important existing constitutional and criminal law provisions, followed by information on the rights of crime victims in court proceedings, available compensation and legal funds, all of which are relevant for NGOs and hate crime victims’ litigation strategies.
1. European Network Against Racism (ENAR) 2006. Responding to Racism in Poland, Brussels, p. 6.
2. One rare example is: Rzepliński, Andrzej 2008. Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation: Poland, Warsaw. The study was prepared for the European Union Agency for Fundamental Rights.
(OPP)
