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IRIS 2002-4:4/4

European Commission

Proposal for Council Framework Decision against Racism and Xenophobia

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Tarlach McGonagle

Institute for Information Law (IViR), University of Amsterdam

A Proposal for a Council Framework Decision on combating racism and xenophobia was presented by the European Commission at the end of November 2001 and is currently under consideration by the European Parliament. The purpose of the Framework Decision will be, according to its draft first article, to lay down "provisions for approximation of laws and regulations of the Member States and for closer co-operation between judicial and other authorities of the Member States regarding offences involving racism and xenophobia." It goes on to define the terms "racism" and "xenophobia" in draft Article 3: "the belief in race, colour, descent, religion or belief, national or ethnic origin as a factor determining aversion to individuals or groups". The key article of the Framework Decision, however, will be Article 4 - Offences concerning racism and xenophobia. In its draft form, it reads: "Member States shall ensure that the following intentional conduct committed by any means is punishable as a criminal offence: (a) public incitement to violence or hatred for a racist or xenophobic purpose or to any other racist or xenophobic behaviour which may cause substantial damage to individuals or groups concerned; (b) public insults or threats towards individuals or groups for a racist or xenophobic purpose; (c) public condoning for a racist or xenophobic purpose of crimes of genocide, crimes against humanity and war crimes as defined in Articles 6, 7 and 8 of the Statute of the International Criminal Court; (d) public denial or trivialisation of the crimes defined in Article 6 of the Charter of the International Military Tribunal appended to the London Agreement of 8 April 1945 in a manner liable to disturb the public peace; (e) public dissemination or distribution of tracts, pictures or other material containing expressions of racism and xenophobia; (f) directing, supporting of or participating in the activities of a racist or xenophobic group, with the intention of contributing to the organisation's criminal activities."

Draft Article 5 enjoins Member States to ensure that "instigating, aiding, abetting or attempting to commit an offence referred to in Article 4 is punishable." Also of note is that draft Article 7 provides for aggravated sentencing when the perpetrator is acting in the exercise of a professional activity and the victim is dependent on that activity. Draft Article 8, then, stipulates that racist and xenophobic motivation may be regarded as an aggravating circumstance for the determination of penalties for offences.

When adopted, this Proposal is likely to become a mainstay of future anti-racism action emanating from the EU. Of particular importance for the media is the draft preambular assurance that "[T]his Framework Decision respects the fundamental rights and observes the principles recognised in particular by the European Convention on Human Rights, in particular Articles 10 and 11 thereof, and by the Charter of Fundamental Rights of the European Union, and notably Chapters II and VI thereof" (see IRIS 2000-9:4).

Proposal for a Council Framework Decision on combating racism and xenophobia (presented by the Commission), COM (2001) 664 final, Brussels, 28 November 2001 EN