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European Union: Legislation on Racism and Xenophobia

(Dec. 16, 2008) On November 28, 2008, after lengthy negotiations, the Council of the European Union Framework Decision on Combating Certain Forms and Expressions of Racism and Xenophobia by Means of Criminal Law was finally adopted. The Decision obliges the EU Member States to criminalize the following intentional conduct:

· Public incitement to violence or hatred directed against a group of persons or a member of a group defined by reference to race, religion, color, descent, or national or ethnic origin;

· Commission of acts cited above through public dissemination or distribution of tracts, pictures, or other material;

· Publicly condoning, denying, or trivializing crimes of genocide, crimes against humanity, and war crimes when the conduct is carried out in a manner likely to incite to violence or hatred against groups as defined above; and

· Publicly condoning, denying, or trivializing the crimes contained in article 6 of the Statute of the International Military Tribunal, i.e., crimes against peace and humanity and war crimes.

The Decision allows the EU members to opt to punish conduct that is carried out in a manner likely to disturb the peace or conduct that is abusive, threatening, or insulting.

Member States are required to take the following measures:

a) to establish jurisdiction based on nationality and territoriality principles. Thus, a Member State must also criminalize such conduct committed through an information system if the offender is physically present in its territory, irrespective of whether the conduct involves material hosted in an information system in its territory; if the conduct does involve such material, it must be criminalized irrespective of whether the offender was present in the State concerned.

b) to criminalize the above-named conduct of individuals or legal persons by effective, proportionate, and dissuasive penalties. The maximum punishment allowed is between one and three years of imprisonment. Sanctions for legal persons may include exclusion from entitlement to public benefits or financial assistance or temporary or permanent disqualification from engaging in commercial activities.

c) to ensure that when other crimes are committed, racist or xenophobic elements of the crime are aggravating circumstances under domestic criminal law.

d) to ensure that investigation of the above-mentioned crimes does not depend on the filing of a report or an accusation made by a victim.

e) to implement the provisions of the Decision by November 28, 2010.

(Council Framework Decision 2008/913/JHA, 2008 OJ (L328/55), Dec. 6, 2008, available at