• What is the dialogue "Have they caught them yet? " about?

The basics issue discussed by the characters in the dialogue are the possibility of punishing hate violence, and possible defences against it. Two approaches are contrasted here – the official route and self-defence, as advocated by Daniel. In the following text we will focus on the way in which signs of hate violence are tackled under legislation, the main obstacles to the clarification of hate crimes, and the possibilities of defence and protection of hate crime victims.

• What is...?

Criminal act - illegal act whose signs are precisely described in the Penal Code, which also stipulates the punishment that can be imposed. Criminal acts are divided into crimes and offences. Offences are criminal acts committed due to negligence and deliberate criminal acts with an upper sentence limit of give years. Crimes are all criminal acts that are not offences.

Merits - a set of signs that define the individual types of criminal acts, i.e. detailed conduct of the perpetrator.

Victim and aggrieved person - the term “victim” has not been used in the Czech legislation so far; it is expected to be used in the upcoming Act on Victims. As stipulated in this Act, a victim should be each “natural person who suffers harm, including physical or mental damage, emotional harm or material harm directly caused by conduct or negligence that violates criminal laws”. Based on the valid legislation, an aggrieved person is everyone who, due to a criminal act, suffers any material or immaterial harm. On these grounds, the aggrieved person is granted certain rights in the criminal proceedings (to look into the file, ask the evidence to be complemented, participate in the main proceedings, and request indemnification in the so-called adhesion proceedings).

• Topic

If hate violence meets the merits envisaged in the Penal Code and achieves a level of harm relevant from a criminal point of view, it is a hate crime. The essence of punishment for hate crimes is an increase of the criminal sanction depending on the perpetrator’s motivation.

Even though the terms “hate violence” and “hate crime” are not defined by any international, European or EU legal instrument, the protection of persons attacked on the grounds of race, nationality, ethnicity, religion, sexual orientation, health and age is specified in many of them. In this respect, crucial importance is given to the Convention on the Elimination of All Forms of Racial Discrimination, which binds the member states (including the Czech Republic) to criminalize instigation to racial discrimination and to violent criminal acts motivated by hate to any race or ethnic group. The Convention therefore does not guarantee protection to all groups vulnerable to hate violence, but only to those groups defined by race, ethnicity or complexion. A similar obligation for the Czech Republic is specified in the General Decision of the Council on the fight against certain forms and signs of racism and xenophobia using criminal law instruments. International, European and EU obligations are implemented at the national level by means of criminal laws – specifically the new Penal Code in effect from 1 January 2010.

Protection against hate violence is tackled by the Penal Code at three levels

• as a general aggravating circumstance
• as a circumstance that requires the use of a higher sentence – qualified merits
• as part of the basic merits of some criminal acts

A general aggravating circumstance is a circumstance that the court looks at in its decision on the length of the sentence. In addition to other circumstances, it can take into account the fact that an attack was caused by national, racial, ethnic, religious, class-related or any other similar hate. The court can then, for example, impose a sentence at the upper limit of possible sentences.

Some criminal acts (e.g. murder) have, in addition to the basic merits and the corresponding sentence (ten to eighteen years in cases of murder), also a qualified form for which a convicted person will be given a higher sentence (qualified murder – fifteen to twenty years). Some qualified merits include national, ethnic, racial and religious or class-related hate. The Czech Penal Code does not recognise a homophobic motive or a motive of hate against handicapped persons. If the perpetrator’s motive turns out to be one of those mentioned in the list above, the court is obliged to assess a penalty of a higher sentence.

The motive of hate is also part of the merits for some criminal acts. In practice, it means that unless a racial or similar motive is established, the accused cannot be found guilty of a criminal activity whose merits contain the hate motive. (Of course, he can be found guilty of another criminal act.)

Examples

General aggravating circumstance (Section 42 of the Penal Code)
As aggravating circumstances, the court shall particularly take into account that the perpetrator
a) ......
b) committed the criminal act out of greed, revenge, national, racial, ethnic, religious, class-related or any similar hate or due to any other condemnable motive,
c) ......

Qualified merits
Section 140 Murder
(1) Whoever kills someone intentionally shall be sentenced to ten to eighteen years of imprisonment.
(2) Whoever kills someone intentionally with premeditation shall be sentenced to twelve to twenty years of imprisonment.
(3) A perpetrator shall be sentenced to fifteen to twenty years or to an extra sentence if the criminal act specified in (1) or (2) is committed
a) on two or more persons,
b) on a pregnant woman,
c) on a child aged under fifteen,
d) on an official during or due to execution of his/her authorities,
e) on a witness, court expert or interpreter in connection with the execution of their duties,,
f) on a medical officer when performing his/her health-care, life-rescuing or health-protection occupation or any other medical officer who performed his/her similar duties to protect life, health or property arising from his/her occupation, profession, position or function delegated under the law,
g) on someone else for his/her actual or assumed race, ethnicity, nationality, political belief, religion or atheism,
h) repeatedly,
i) in a particularly brutal or agonizing way, or
j) with the intention to obtain property for himself/herself or for anyone else or in an effort to conceal or facilitate another criminal act or for any other condemnable motive.
(4) Premeditation is punishable.

Basic merits
Section 355 Defamation of nation, race, ethnicity or any other group of people
(1) Whoever publicly defames
a) a nation, its language, a race or ethnic group, or
b) a group of people for their actual or assumed race, ethnicity, nationality, political belief, religion or atheism,shall be sentenced to up to two years of imprisonment.
(2) A perpetrator shall be sentenced to up to three years of imprisonment if he/she commits the criminal act specified in (1)
a) at least against two persons, or
b) in the press, film, on the radio or TV, in a publicly accessible computer network or in any other way of a similar efficiency.
Section 356 Instigation of hate against a group of people or derogation from their rights and freedoms
(1) Whoever publicly instigates hate against a nation, race, ethnic group, religion, class or any other group of people or derogation from the rights and freedoms of their members shall be sentenced to up to two years of imprisonment.
(2) The same sentence shall apply to anyone who conspires or colludes to commit the criminal act specified in (1).
(3) A perpetrator shall be sentenced to six months to three years of imprisonment
a) if he/she commits the criminal act specified in (1) in the press, in film, on the radio or TV, in a publicly accessible computer network or in any other way of a similar efficiency, or
b) if he/she participates actively through this act in the activities of a group, organization or association that proclaims discrimination, violence or racial, ethnic, class-related, religious or any other hate.

The Czech Penal Code also stipulates protection against displays of hate in the form of denial of Nazi, Communist or other similar genocide. The regulation is broader than what is common in the European Union. In addition to the traditional protection against the so-called Auschwitz lie, i.e. denial, questioning, approval or justification of the Holocaust, which started emerging quite soon after the end of the war and currently is growing in strength because the last eye-witnesses are dying out, it also stipulates protection against any similar conduct in connection with the genocide caused by the Communist regime, or any genocide at all (including for example the genocide of the Armenians or the genocide in Rwanda).

The Penal Code also stipulates penalties for establishing, supporting and promoting movements to suppress human rights and freedoms. Even though these merits are mostly used to prosecute the leading representatives and activists of neo-Nazi groups at present, the merits are not only aimed against extreme right-wing groups. In principle, any movement focusing on suppressing the rights and freedoms of others or promulgating racial, ethnic, national, religious or class-related hate or hate against any other group of people is a movement falling within the scope of this provision of the Penal Code.

Section 403 Establishment, support and promotion of movements to suppress human rights and freedoms
(1) Whoever establishes, supports or promotes a movement which demonstrably strives to suppress human rights and freedoms or promulgates racial, ethnic, national, religious or class-related hate or hate against any other group of people shall be sentenced to one to five years of imprisonment.
(2) A perpetrator shall be sentenced to three to ten years of imprisonment
a) if he/she commits the crime specified in (1) in the press, film, on the radio or TV, in a publicly accessible computer network or in any other way of a similar efficiency,
b) if he/she commits the crime as a member of an organized group,
c) if he/she commits the crime as a soldier, or
d) if he/she commits the crime under the condition of state jeopardy or state of war.
(3) Premeditation is punishable.

The forms of hate crimes are miscellaneous. In addition to physical assaults motivated by hate, the Penal Code also criminalizes many verbal and even non-verbal manifestations. There is a very tumultuous public and academic debate going on about the so-called hate speeches, i.e. verbal hate incidents. A key question is which verbal manifestations fall within the area of freedom of speech guaranteed by the Constitution and which go beyond. In the context of the Czech legislation, freedom of speech can be limited on condition that this limitation involves measures crucial in a democratic society to protect the rights and freedoms of others, state security, public safety, protection of public health and morality (Article 17 of the Charter of Fundamental Rights and Freedoms). It will always depend on the assessment of the specific verbal manifestation and the evaluation if such a manifestation improperly affected the rights and freedoms of others (especially the right to human dignity) and at the same time if a limitation (prohibition) of this manifestation or even its criminalization is necessary in a democratic society.

Prosecuting hate crimes

Prosecuting hate crimes and the specific court hearings are complicated because, in addition to other signs, it is necessary to fully establish the perpetrator’s motivation, namely his/her intention to commit the criminal act out of hate.

The prosecution of criminal acts falls within the competency of law enforcement authorities, i.e. the police, prosecution authorities and courts. The police are obliged to open criminal proceedings on the basis of their own findings, a legal complaint or other relevant information. The launch of criminal proceedings is not therefore conditional upon the aggrieved person’s legal complaint, and the police are not entitled to require it.

The police are active especially in the preparatory procedure, i.e. at the stage of prosecution before a legal action is filed by a public prosecutor. They are responsible for procuring adequate evidence, including interrogations of suspects, witnesses and aggrieved persons. The police usually work with several investigation versions, aimed at sufficiently establishing

• if the crime has actually occurred
• if the specific act is a criminal act
• if it has been committed by a specific person

The role of the police is crucial to establishing hate motives. At the beginning of criminal proceedings, it is necessary to focus on procuring sufficient testimonials and other traces and the perpetrator’s verbal manifestations during the attack that could point at his/her motivation, and it is also possible to investigate the relationship between the perpetrator and the aggrieved person or their long-term attitudes. In the preparatory phase, the police can conclude that no crime is suspected. In such a case, the police cast the matter aside or refer it to a public authority for further settlement, or for settlement of a disciplinary offence. Many hate crimes have been settled in this way.

If the police collect enough information needed to establish the criminal act and its perpetrator, they shall submit a suggestion for filing a legal action to a public prosecutor. The public prosecutor shall prepare the legal action and include all known facts and a legal assessment of them, and submit it to court.

In the main proceedings the court discusses the action, hears the defendant, aggrieved persons and witnesses and establishes documentary and other evidence. The defendant as well as the aggrieved person (see below) are entitled to submit evidence and be active in the proceedings. The defendant has the right to a closing speech. The court decides on the guilt and punishment and, in case of complicated cases, adjourns the hearing to consider all circumstances and legal arguments more thoroughly. The verdict is delivered publicly. The prosecutor and the defendant can file an appeal if they are not satisfied with the verdict. If the prosecutor and the defendant do not do so, the verdict becomes legitimate upon expiry of the appeal term, and the defendant becomes a convicted person.

In case of appeal (filed by any or both of the parties to the case), the case is referred to the so-called appellate court. If the criminal case was settled by a district court as a first-instance court (the competencies of the courts are stipulated in the Code of Criminal Procedure; in simple language: regional courts act as first-instance courts in case of criminal acts if the law specifies an imprisonment whose lower limit is at least five years), the appellate court is the regional court. If the first-instance proceedings are conducted by a regional court, the high court shall act as the appellate court.

The appellate court shall discuss the case once again and either return it to the first-instance court for new proceedings, or change or confirm the verdict.

There are also cases when it is possible to submit a special legal remedy against a legitimate verdict; specifically, this applies to extraordinary appeals, renewal of proceedings and complaint due to breach of the law; their requirements and conditions of application are stipulated in the Code of Criminal Procedure.

Execution of the punishment follows the legitimate sentence. If imprisonment is imposed, the convicted person is ordered to serve the sentence in a specific prison.

Options of the attacked person

A person attacked for hate reasons has basically three options to tackle the incident

• self-defence, or private defence
• legal route
• other way to tackle the incident

Private defence

Hate crimes, just like all other criminal acts, are not always solved successfully and their perpetrators punished. In consequence, the communities of the victims often try to take the law or defence into their own hands.

Daniel has arrived at the same conclusion, with boxing. If he is attacked and defends himself, even though he may exercise violence against someone else, it does not have to be necessarily a criminal act; it is definitely appropriate to assess the situation from the point of view of private defence. Private defence is defined as the aversion of a threatening or ongoing attack against interests protected by the Penal Code, i.e. attack against life, health, property, dignity etc. Private defence shall be adequate to the mode of attack. Both conditions shall be met. It is not private defence if the defending person does not avert an attack, for example attacks the attacker from behind or on the run. Likewise, if the defence apparently overruns the threatening or ongoing attack inadequately, it shall not be assessed as private defence. The assessment of adequacy of private defence shall be complex, i.e. taking into account the strength of the attacker and the defender, their subjective state of mind, the circumstances before the attack, the conditions of the attack, the tools used for the attack and, last but not least, the consequences of the attack. The specific evaluation of the case will be always decisive and it is not therefore possible to clearly determine that e.g. averting an attack with a knife using a gun would have to be evaluated as inadequate defence. On the other hand, if a person facing a verbal attack uses a gun for defence, this would be obviously excessive.

Legal route

A victim of a criminal act has principally two legal ways of defence against a hate incident – criminal proceedings or civil proceedings.

In case of criminal proceedings, the victim takes the role of the aggrieved party, defined as the person who suffers harm to health or property, moral or any other harm. Even though the aggrieved person is a party to the criminal proceedings, his/her rights are no match for the rights of the defendant. First of all, the aggrieved person can file a claim for an indemnity - but only for damage identifiable in money, i.e. damage to health and property. In case of persons who underwent a hate incident, however, psychological and moral harm is typically present, consisting in an interference with the very personality of the attacked person. The aggrieved person can claim an indemnity for psychological harm only if this harm is defined as a mental illness (e.g. post-traumatic stress syndrome), i.e. harm to health. The aggrieved person shall claim an indemnity before the first court hearing. A part of the proceedings on the claim for indemnity for harm caused by a criminal act is called “adhesion proceedings”, governed by the principles of civil proceedings. Among other things, this means that the aggrieved person shall justify and demonstrate his/her claims sufficiently. The aggrieved person is entitled to look in the file, suggest evidence and their performance. In the main proceedings, the aggrieved person can give questions to the defendant, witnesses and experts, subject to the court’s approval. At the end of the main proceedings, before the final speech of the defendant’s attorney and the defendant, the aggrieved person can also deliver his/her final speech, summarizing his/her reasons for the claimed amount of indemnity. He/she can appeal against the verdict, but only with respect to the claim for indemnity, not with respect to issues of guilt and sentence. The aggrieved person can be represented by an attorney if he/she proves that he/she is needy; he/she can be assigned an attorney by the court. The role of the attorney consists in the enforcement of the rights of the aggrieved person, who is usually very traumatized by the criminal proceedings. Among other things, the attorney acts as a barrier against secondary victimization. However, the aggrieved person does not automatically receive the indemnity even if a legitimate verdict is made. Quite often, the convicted person is devoid of property, gets rid of his/her property during the criminal proceedings or is sentenced to a long imprisonment and cannot basically pay the indemnity either in part or in full.

In civil proceedings, the victim of a hate incident can claim an indemnity for material harm as well as for immaterial harm caused by interference with his/her personality rights, including integrity and human dignity. In this situation, the victim acts as the plaintiff. He/she prepares and justifies the legal action, submits and performs the necessary evidence. He/she bears the so-called burden of claim and burden of proof. If the claimed facts are not established in the proceedings, the action will be rejected. It is possible to decide on the plaintiff’s obligation to pay the defendant’s costs of the litigation.

Legal assistance to the victims of hate violence is specifically provided by only one non-government organization In IUSTITIA (www.in-ius.cz) in the Czech Republic. It deals with the provision of legal consultancy and representation of victims, but also with lecturing, education and media activities to the benefit of hate crime victims.

Other ways to deal with an incident

It should be always the person suffering from the hate crime who decides how to deal with the situation. Filing a criminal or civil action is not an option for many people. They can be afraid of the criminal or civil proceedings as such, maybe they do not want to meet the perpetrator again, they may have poor experience with public administration or want to forget about the incident as soon as possible.

Another option of dealing with a hate crime is looking for psychological or psychotherapeutic help. Unfortunately, psychological services for hate crime victims are not too common in the Czech Republic yet. However, many psychotherapists are able to work with traumas in general.

The feeling of support and solidarity of the social group of the person who suffered from a hate crime makes the lives of these victims better after the incident. It always is necessary to realize that everyone experiences different situations differently, reactions differ, just like the time of recovery. The victim of any crime, and the more so of a hate crime, should be respected and naturally involved back in everyday life.

• Stories and examples

In April 2009 a group of four neo-Nazis together burnt a house occupied by a Romani family using frangible grenades. The youngest of four children, Natálie, was burnt at 80% of her body surface. She survived the attack with permanent consequences. The attackers were caught in August 2009; the attack was described as racially motivated almost immediately. The phase of establishment of the criminal act took over a year. The defendants came before court in May 2010. Some of them did not even conceal their positive attitude to the neo-Nazi movement and did not regret the attack. Other manifestations of solidarity with the aggrieved family were evaluated as purpose-driven by the court. The attorneys of the aggrieved parents, grandparents and especially children, namely Natálie, played a major role in the case. The verdict was declared in October 2010 and is not yet final, pending appeal; it sentenced the defendants to 22 and 20 years of imprisonment, respectively. An indemnity for Natálie’s harm was assessed at an amount exceeding CZK 9 million. So far this is the highest amount specified by a court in case of a hate crime. Taking into account the length of imprisonment and their social situation, the aggrieved girl’s claim is not likely to be fully compensated, ever.

Unfortunately, there have been dozens of hate murders and incidents; these incidents and the approach of public administration is evaluated by In IUSTITIA.

Last update 15 November 2010

• Sources

Bibliography:

Penal Code (Act No. 40/2009 Coll., as amended).

Code of Criminal Procedure (Act No. 141/1961 Coll., as amended).

Offences Act (Act No. 200/1990 Coll., as amended).

International Convention on the Elimination of All Forms of Racial Discrimination (Act No. 95/1974 Coll.).

General Convention on the Protection of National Minorities (Act No. 96/1998 Coll.)

Czech penal law system