Options for efficient law enforcement in cases
of hate crime

2015

- Fact sheet on the legal opinion -

Understanding the term

  • The term hate crime covers criminal offences that are directed against a person or an object simply or primarily because of group characteristics shared by this person or the owner of the object, in particular for reasons of political affiliation, nationality, ethnic origin, on grounds of race, skin colour, religion, world view, origin, sexual orientation, disability, external appearance or social status.
  • Hate crime is characterised both by the motivation of the perpetrator and by the victim's perspective. In criminal law, it is decisive that the act is motivated by reasons that go beyond the personal damage done to the victim, and that this act is linked to specific characteristics pertinent to the victim. It can be assumed that the choice of the victim, who possesses specific characteristics, is meant to elicit a reaction in society.

Protection from hate crime in the Basic Law (German constitution law)

The prosecution of hate crimes can be inferred from the protective duties of the state that are provided for in the Basic Law. These include, above all, the protection of human dignity (Article 1 (1) of the Basic Law), the right to the free development of one's personality (Article 2 (1) of the Basic Law) and combating discrimination (Article 3 (1) of the Basic Law).

Legal provisions against hate crime at Federal and State level

Criminal law offers sufficient basis for prosecuting hate crime. This also includes the legislative initiative to introduce the current Section 46 subsection 2 of the Criminal Code, under which sentencing must explicitly give consideration "in particular to the motives and aims of the offender where they are of a racist or xenophobic nature or where they show contempt for human dignity". There is no need for further action on the part of the legislator. Criminal law and criminal procedure law contain sufficient tools for the prosecution of hate crime. However, it is the States that are responsible for the organisation and management of the police authorities. Within this framework, they are called upon to establish rules for the effective implementation of federal criminal laws by their authorities.

Potential for action in existing administrative practice

Essential factors for success in the fight against hate crime therefore lie at the implementation level and in administrative practice, which is directed towards implementation and enforcement of the statutory provisions. The prosecution of hate crime can be improved by subjecting it to increased observation and by awarding it greater weight when criminal legislation and the Code of Criminal Procedure are applied. For this level of implementation, first and foremost, the internal police classification of a crime as a hate crime is relevant. However, within the existing Criminal Police Reporting Service for Politically-Motivated Crime (Kriminalpolizeilicher Meldedienst über politisch motivierte Kriminalität - KPMD-PMK) a clear and uniform classification of a criminal act as hate crime does not appear to be guaranteed sufficiently. Additional measures, such as the appointment of special police contact persons for homophobic acts of violence, for example, differ widely from one Federal Land to another and are, consequently, not guaranteed in a uniform manner.