41
The European Commission against Racism and Intolerance (ECRI):
Recalling the declaration adopted by the heads of state and government of the
member states of the Council of Europe at their first summit held in Vienna on 8
and 9 October 1993;
Recalling that the plan of action on combating racism, xenophobia, antisemitism
and intolerance set out as part of this declaration invited the Committee of Minis-
ters to establish the European Commission against Racism and Intolerance with
a mandate, inter alia, to formulate general policy recommendations to member
states;
Recalling also the Final Declaration and Action Plan adopted by the heads of
state and government of the member states of the Council of Europe at their sec-
ond summit held in Strasbourg on 10-11 October 1997;
Recalling that Article 1 of the Universal Declaration of Human Rights proclaims
that all human beings are born free and equal in dignity and rights;
Having regard to the International Convention on the Elimination of All Forms of
Racial Discrimination;
Having regard to Convention No. 111 of the International Labour Organization
concerning Discrimination (Employment and Occupation);
Having regard to Article 14 of the European Convention on Human Rights;
Having regard to Protocol No. 12 to the European Convention on Human Rights,
which contains a general clause prohibiting discrimination;
Having regard to the case law of the European Court of Human Rights;
Taking into account the Charter of Fundamental Rights of the European Union;
Taking into account Directive 2000/43/EC of the Council of the European Union
implementing the principle of equal treatment between persons irrespective of
41. Published for the ECRI by the Council of Europe, Strasbourg, 2003.
ECRI General Policy Recommendation No. 7
on National legislation to combat racism
and racial discrimination
(adopted on 13 December 2002)
41
Blasphemy, insult and hatred
38
racial or ethnic origin, and Directive 2000/78/EC of the Council of the Euro-
pean Union establishing a general framework for equal treatment in employ-
ment and occupation;
Having regard to the Convention on the Prevention and Punishment of the Crime
of Genocide;
Recalling the ECRI’s General Policy Recommendation No. 1 on combating
racism, xenophobia, antisemitism and intolerance, and the ECRI’s General
Policy Recommendation No. 2 on specialised bodies to combat racism, xeno-
phobia, antisemitism and intolerance at national level;
Stressing that, in its country-by-country reports, the ECRI regularly recommends
to member states the adoption of effective legal measures aimed at combating
racism and racial discrimination;
Recalling that, in the political declaration adopted on 13 October 2000 at the
concluding session of the European Conference against Racism, the governments
of member states of the Council of Europe committed themselves to adopting
and implementing, wherever necessary, national legislation and administra-
tive measures that expressly and specifically counter racism and prohibit racial
discrimination in all spheres of public life;
Recalling also the declaration and the programme of action adopted by the World
Conference against Racism, Racial Discrimination, Xenophobia and Related Intol-
erance held in Durban, South Africa, from 31 August to 8 September 2001;
Aware that laws alone are not sufficient to eradicate racism and racial discrim-
ination, but convinced that laws are essential in combating racism and racial
discrimination;
Stressing the vital importance of appropriate legal measures in combating
racism and racial discrimination effectively and in a way which both acts as a
deterrent and, as far as possible, is perceived by the victim as satisfactory;
Convinced that the action of the state legislator against racism and racial dis-
crimination also plays an educative function in society, transmitting the powerful
message that no attempts to legitimise racism and racial discrimination will be
tolerated in a society ruled by law;
Seeking, alongside the other efforts under way at international and European
level, to assist member states in their fight against racism and racial discrim-
ination, by setting out in a succinct and precise manner the key elements to be
included in appropriate national legislation;
Recommends to the governments of member states:
a. to enact legislation against racism and racial discrimination, if such
legislation does not already exist or is incomplete;
Council of Europe texts on respect for others' culture and beliefs
39
b. to ensure that the key components set out below are included in such
legislation.
Key elements of national legislation against racism
and racial discrimination
I. Definitions
1. For the purposes of this recommendation, the following definitions shall apply:
a. “racism” shall mean the belief that a ground such as race,
42
colour, lan-
guage, religion, nationality or national or ethnic origin justifies contempt for
a person or a group of persons, or the notion of superiority of a person or
a group of persons.
b. “direct racial discrimination” shall mean any differential treatment
based on a ground such as race, colour, language, religion, nationality or
national or ethnic origin, which has no objective and reasonable justifica-
tion. Differential treatment has no objective and reasonable justification if it
does not pursue a legitimate aim or if there is not a reasonable relationship
of proportionality between the means employed and the aim sought to be
realised.
c. “indirect racial discrimination” shall mean cases where an apparently
neutral factor such as a provision, criterion or practice cannot be as easily
complied with by, or disadvantages, persons belonging to a group desig-
nated by a ground such as race, colour, language, religion, nationality or
national or ethnic origin, unless this factor has an objective and reasonable
justification. This latter would be the case if it pursues a legitimate aim and
if there is a reasonable relationship of proportionality between the means
employed and the aim sought to be realised.
II. Constitutional law
2. The constitution should enshrine the principle of equal treatment, the commit-
ment of the state to promote equality as well as the right of individuals to be free
from discrimination on grounds such as race, colour, language, religion, nation-
ality or national or ethnic origin. The constitution may provide that exceptions to
the principle of equal treatment may be established by law, provided that they
do not constitute discrimination.
3. The constitution should provide that the exercise of freedom of expression,
assembly and association may be restricted with a view to combating racism.
Any such restrictions should be in conformity with the European Convention on
Human Rights.
42
.
Since all human beings belong to the same species, the ECRI rejects theories based on the exist-
ence of different “races”. In this recommendation the ECRI uses this term to ensure that those per-
sons generally and erroneously perceived as belonging to “another race” are not excluded from the
protection given by legislation.
Blasphemy, insult and hatred
40
III. Civil and administrative law
4. The law should clearly define and prohibit direct and indirect racial
discrimination.
5. The law should provide that the prohibition of racial discrimination does not
prevent the maintenance or adoption of temporary special measures designed
either to prevent or to compensate for disadvantages suffered by persons des-
ignated by the grounds enumerated in paragraph 1.b (henceforth: enumerated
grounds), or to facilitate their full participation in all fields of life. These meas-
ures should not be continued once the intended objectives have been achieved.
6. The law should provide that the following acts, inter alia, are considered as
forms of discrimination: segregation; discrimination by association; announced
intention to discriminate; instructing another to discriminate; inciting another to
discriminate; aiding another to discriminate.
7. The law should provide that the prohibition of discrimination applies to all
public authorities as well as to all natural or legal persons, both in the public
and in the private sectors, in all areas, notably: employment; membership of
professional organisations; education; training; housing; health; social protec-
tion; goods and services intended for the public and public places; exercise of
economic activity; public services.
8. The law should place public authorities under a duty to promote equality and
to prevent discrimination in carrying out their functions.
9. The law should place public authorities under a duty to ensure that those par-
ties to whom they award contracts, loans, grants or other benefits respect and
promote a policy of non-discrimination. In particular, the law should provide
that public authorities should subject the awarding of contracts, loans, grants or
other benefits to the condition that a policy of non-discrimination be respected
and promoted by the other party. The law should provide that the violation of
such condition may result in termination of the contract, grant or other benefits.
10. The law should ensure that easily accessible judicial and/or administrative
proceedings, including conciliation procedures, are available to all victims of dis-
crimination. In urgent cases, fast-track procedures, leading to interim decisions,
should be available to victims of discrimination.
11. The law should provide that, if persons who consider themselves wronged
because of a discriminatory act establish before a court or any other compe-
tent authority facts from which it may be presumed that there has been direct
or indirect discrimination, it shall be for the respondent to prove that there has
been no discrimination.
12. The law should provide for effective, proportionate and dissuasive sanctions
for discrimination cases. Such sanctions should include the payment of compen-
sation for both material and moral damages to the victims.
Council of Europe texts on respect for others' culture and beliefs
41
13. The law should provide the necessary legal tools to review, on an ongoing
basis, conformity with the prohibition of discrimination in all laws, regulations
and administrative provisions at national and local levels. Laws, regulations and
administrative provisions found not to be in conformity with the prohibition of
discrimination should be amended or abrogated.
14. The law should provide that discriminatory provisions included in individual
or collective contracts or agreements, internal regulations of enterprises, rules
governing profit-making or non-profit-making associations, and rules governing
the independent professions and workers’ and employers’ organisations should
be amended or declared null and void.
15. The law should provide that harassment related to one of the enumerated
grounds is prohibited.
16. The law should provide for an obligation to suppress public financing of
organisations which promote racism. Where a system of public financing of
political parties is in place, such an obligation should include the suppression of
public financing of political parties which promote racism.
17. The law should provide for the possibility of dissolution of organisations
which promote racism.
IV. Criminal law
18. The law should penalise the following acts when committed intentionally:
a. public incitement to violence, hatred or discrimination,
b. public insults and defamation or
c. threats against a person or a grouping of persons on the grounds of their
race, colour, language, religion, nationality, or national or ethnic origin;
d. the public expression, with a racist aim, of an ideology which claims
the superiority of, or which depreciates or denigrates, a grouping of per-
sons on the grounds of their race, colour, language, religion, nationality, or
national or ethnic origin;
e. the public denial, trivialisation, justification or condoning, with a racist
aim, of crimes of genocide, crimes against humanity or war crimes;
f. the public dissemination or public distribution, or the production or stor-
age aimed at public dissemination or public distribution, with a racist aim,
of written, pictorial or other material containing manifestations covered by
paragraphs 18a, b, c, d and e;
g. the creation or the leadership of a group which promotes racism; sup-
port for such a group; and participation in its activities with the intention of
contributing to the offences covered by paragraph 18a, b, c, d, e and f;
h. racial discrimination in the exercise of one’s public office or occupation.
19. The law should penalise genocide.
Blasphemy, insult and hatred
42
20. The law should provide that intentionally instigating, aiding, abetting or
attempting to commit any of the criminal offences covered by paragraphs 18
and 19 is punishable.
21. The law should provide that, for all criminal offences not specified in para-
graphs 18 and 19, racist motivation constitutes an aggravating circumstance.
22. The law should provide that legal persons are held responsible under crim-
inal law for the offences set out in paragraphs 18, 19, 20 and 21.
23. The law should provide for effective, proportionate and dissuasive sanctions
for the offences set out in paragraphs 18, 19, 20 and 21. The law should also
provide for ancillary or alternative sanctions.
V. Common provisions
24. The law should provide for the establishment of an independent specialised
body to combat racism and racial discrimination at national level (henceforth:
national specialised body). The law should include within the competence of
such a body: assistance to victims; investigation powers; the right to initiate, and
participate in, court proceedings; monitoring legislation and advice to legisla-
tive and executive authorities; awareness-raising of issues of racism and racial
discrimination among society and promotion of policies and practices to ensure
equal treatment.
25. The law should provide that organisations such as associations, trade unions
and other legal entities which have, according to the criteria laid down by the
national law, a legitimate interest in combating racism and racial discrimination,
are entitled to bring civil cases, intervene in administrative cases or make crim-
inal complaints, even if a specific victim is not referred to. If a specific victim is
referred to, it should be necessary for that victim’s consent to be obtained.
26. The law should guarantee free legal aid and, where necessary, a court-
appointed lawyer, for victims who wish to go before the courts as applicants or
plaintiffs and who do not have the necessary means to do so. If necessary, an
interpreter should be provided free of charge.
27. The law should provide protection against any retaliatory measures for per-
sons claiming to be victims of racial offences or racial discrimination, persons
reporting such acts or persons providing evidence.
28. The law should provide for one or more independent bodies entrusted with
the investigation of alleged acts of discrimination committed by members of the
police, border control officials, members of the army and prison personnel.
Council of Europe texts on respect for others' culture and beliefs
43
Explanatory memorandum to ECRI General Policy
Recommendation No. 7 on National legislation to combat racism
and racial discrimination
Introduction
1. This general policy recommendation (hereafter: the Recommendation) focuses
on the key elements of national legislation to combat racism and racial discrim-
ination. Although the ECRI is aware that legal means alone are not sufficient to
this end, it believes that national legislation against racism and racial discrimina-
tion is necessary to combat these phenomena effectively.
2. In the framework of its country-by-country approach, the ECRI regularly
recommends to member states of the Council of Europe the adoption of effec-
tive legal measures aimed at combating racism and racial discrimination. The
Recommendation aims to provide an overview of these measures and to clar-
ify and complement the recommendations formulated in this respect in the
ECRI’s country-by-country reports. The Recommendation also aims to reflect
the general principles contained in the international instruments mentioned in
the Preamble.
3. The ECRI believes that appropriate legislation to combat racism and racial dis-
crimination should include provisions in all branches of the law, that is, constitu-
tional, civil, administrative and criminal law. Only such an integrated approach
will enable member states to address these problems in a manner which is as
exhaustive, effective and satisfactory from the point of view of the victim as
possible. In the field of combating racism and racial discrimination, civil and
administrative law often provides for flexible legal means, which may facilitate
the victims’ recourse to legal action. Criminal law has a symbolic effect which
raises the awareness of society of the seriousness of racism and racial discrim-
ination and has a strong dissuasive effect, provided it is implemented effectively.
The ECRI has taken into account the fact that the possibilities offered by the
different branches of the law are complementary. As regards in particular the
fight against racial discrimination, the ECRI recommends that the member states
of the Council of Europe adopt constitutional, civil and administrative law provi-
sions, and that, in certain cases, they additionally adopt criminal law provisions.
4. The legal measures necessary to combat racism and racial discrimination
at national level are presented in the form of key components which should be
contained in the national legislation of member states. The ECRI stresses that the
measures it recommends are compatible with different legal systems, be they
common law or civil law or mixed. Furthermore, those components that the ECRI
considers to be key to an effective legal framework against racism and racial
discrimination may be adapted to the specific conditions of each country. They
could thus be set out in a single special act or laid out in the different areas of
national legislation (civil law, administrative law and penal law). These key com-
ponents might also be included in broader legislation encompassing the fight
Blasphemy, insult and hatred
44
against racism and racial discrimination. For example, when adopting legal
measures against discrimination, member states might prohibit, alongside racial
discrimination, other forms of discrimination such as those based on gender, sex-
ual orientation, disability, political or other opinion, social origin, property, birth
or other status. Finally, in a number of fields, member states might simply apply
general rules, which it is therefore not necessary to set out in this Recommenda-
tion. This is the position, for example, in civil law, for multiple liability, vicarious
liability, and for the establishment of levels of damages; in criminal law, for the
conditions of liability, and the sentencing structure; and in procedural matters,
for the organisation and jurisdiction of the courts.
5. In any event, these key components represent only a minimum standard; this
means that they are compatible with legal provisions offering a greater level
of protection adopted, or to be adopted, by a member state and that under no
circumstances should they constitute grounds for a reduction in the level of pro-
tection against racism and racial discrimination already afforded by a member
state.
I. Definitions
Paragraph 1 of the Recommendation
6. In the Recommendation, the term “racism” should be understood in a broad
sense, including phenomena such as xenophobia, antisemitism and intolerance.
As regards the grounds set out in the definitions of racism, and direct and indirect
racial discrimination (paragraph 1 of the Recommendation), in addition to those
grounds generally covered by the relevant legal instruments in the field of com-
bating racism and racial discrimination, such as race, colour and national or
ethnic origin, the Recommendation covers language, religion and nationality.
43
The inclusion of these grounds in the definitions of racism and racial discrimina-
tion is based on the ECRI’s mandate, which is to combat racism, antisemitism,
xenophobia and intolerance. The ECRI considers that these concepts, which
vary over time, nowadays cover manifestations targeting persons or groups of
persons, on grounds such as race, colour, religion, language, nationality and
national and ethnic origin. As a result, the expressions “racism” and “racial
discrimination” used in the Recommendation encompass all the phenomena
covered by the ECRI’s mandate. National origin is sometimes interpreted as
including the concept of nationality. However, in order to ensure that this con-
cept is indeed covered, it is expressly included in the list of grounds, in addition
to national origin. The use of the expression “grounds such as” in the definitions
of racism and direct and indirect racial discrimination aims at establishing an
open-ended list of grounds, thereby allowing it to evolve with society. However,
43
.
The ECRI understands the term “nationality” as defined in Article 2a of the European Convention on
Nationality: “‘nationality’ means the legal bond between a person and a State and does not indicate
the person’s ethnic origin”.
Council of Europe texts on respect for others' culture and beliefs
45
in criminal law, an exhaustive list of grounds could be established in order to
respect the principle of forseeability which governs this branch of the law.
7. Unlike the definition of racial discrimination (paragraphs 1b and c of the
Recommendation), which should be included in the law, the definition of racism
is provided for the purposes of the Recommendation, and member states may
or may not decide to define racism within the law. If they decide to do so, they
may, as regards criminal law, adopt a more precise definition than that set out
in paragraph 1a, in order to respect the fundamental principles of this branch
of the law. For racism to have taken place, it is not necessary that one or more
of the grounds listed should constitute the only factor or the determining factor
leading to contempt or the notion of superiority; it suffices that these grounds are
among the factors leading to contempt or the notion of superiority.
8. The definitions of direct and indirect racial discrimination contained in para-
graph 1.b and c of the Recommendation draw inspiration from those contained
in Directive 2000/43/CE of the Council of the European Union, implementing
the principle of equal treatment between persons irrespective of racial or ethnic
origin, and in Directive 2000/78/CE of the Council of the European Union,
establishing a general framework for equal treatment in employment and occu-
pation as well as on the case law of the European Court of Human Rights. In
accordance with this case law, differential treatment constitutes discrimination
if it has no objective and reasonable justification. This principle applies to dif-
ferential treatment based on any of the grounds enumerated in the definition
of racial discrimination. However, differential treatment based on race, colour
and ethnic origin may have an objective and reasonable justification only in an
extremely limited number of cases. For instance, in employment, where colour
constitutes a genuine and determining occupational requirement by reason of
the nature of the particular occupational activities concerned or of the context in
which they are carried out, differential treatment based on this ground may have
an objective and reasonable justification. More generally, the notion of objec-
tive and reasonable justification should be interpreted as restrictively as possible
with respect to differential treatment based on any of the enumerated grounds.
II. Constitutional law
9. In the Recommendation, the term “constitution” should be understood in a
broad sense, including basic laws and written and unwritten basic rules. In
paragraphs 2 and 3, the Recommendation provides for certain principles that
should be contained in the constitution; such principles are to be implemented
by statutory and regulatory provisions.
Paragraph 2 of the Recommendation
10. In paragraph 2, the Recommendation allows for the possibility of providing
in the law for exceptions to the principle of equal treatment, provided that they
do not constitute discrimination. For this condition to be met, in accordance with
Blasphemy, insult and hatred
46
the definitions of discrimination proposed in paragraph 1b and c of the Recom-
mendation, the exceptions must have an objective and reasonable justification.
This principle applies to all exceptions, including those establishing differential
treatment on the basis of nationality.
Paragraph 3 of the Recommendation
11. According to paragraph 3 of the Recommendation, the constitution should
provide that the exercise of freedom of expression, assembly and association
may be restricted with a view to combating racism. In Articles 10.2 and 11.2,
the European Convention on Human Rights enumerates the aims which may
justify restrictions to these freedoms. Although the fight against racism is not men-
tioned as one of these aims, in its case law the European Court of Human Rights
has considered that it is included. In accordance with the articles of the Con-
vention mentioned above, these restrictions should be prescribed by law and
necessary in a democratic society.
III. Civil and administrative law
Paragraph 4 of the Recommendation
12. The Recommendation provides in paragraph 4 that the law should clearly
define and prohibit direct and indirect racial discrimination. It offers a definition
of direct and indirect racial discrimination in paragraph 1b and c. The meaning
of the expression “differential treatment” is wide and includes any distinction,
exclusion, restriction, preference or omission, be it past, present or potential.
The term “ground” must include grounds which are actual or presumed. For
instance, if a person experiences adverse treatment due to the presumption that
he or she is a Muslim, when in reality this is not the case, this treatment would
still constitute discrimination on the basis of religion.
13. Discriminatory actions are rarely based solely on one or more of the
enumerated grounds, but are rather based on a combination of these grounds
with other factors. For discrimination to occur, it is therefore sufficient that one of
the enumerated grounds constitutes one of the factors leading to the differential
treatment. Use of restrictive expressions such as “difference of treatment solely or
exclusively based on grounds such as …” should therefore be avoided.
Paragraph 5 of the Recommendation
14. In its paragraph 5, the Recommendation provides for the possibility of
temporary special measures designed either to prevent or compensate for dis-
advantages suffered by persons designated by the enumerated grounds, or to
facilitate their full participation in all fields of life. As an example of temporary
special measures designed to prevent or compensate for disadvantages linked
to the enumerated grounds: a factory owner who has no black employees
among his managerial staff but many black employees on the assembly line
Council of Europe texts on respect for others' culture and beliefs
47
might organise a training course for black workers seeking promotion. As an
example of temporary special measures designed to facilitate the full partici-
pation, in all fields of life, of persons designated by the enumerated grounds:
the police could organise a recruitment campaign designed to encourage
applications particularly from members of certain ethnic groups who are
under-represented within the police.
Paragraph 6 of the Recommendation
15. The Recommendation specifically mentions in paragraph 6 certain acts
which should be considered by law as forms of discrimination. In theory, the
application of the general legal principles and the definition of discrimination
should enable these acts to be covered. However, practice demonstrates that
these acts often tend to be overlooked or excluded from the scope of appli-
cation of the legislation. For reasons of effectiveness, it may therefore be use-
ful for the law to provide expressly that these acts are considered as forms of
discrimination.
16. Among the acts which the Recommendation mentions specifically as forms
of discrimination, the following warrant a brief explanation:
a. Segregation is the act by which a (natural or legal) person separates
other persons on the basis of one of the enumerated grounds without an
objective and reasonable justification, in conformity with the proposed def-
inition of discrimination. As a result, the voluntary act of separating oneself
from other persons on the basis of one of the enumerated grounds does not
constitute segregation.
b. Discrimination by association occurs when a person is discriminated
against on the basis of his or her association or contacts with one or more
persons designated by one of the enumerated grounds. This would be
the case, for example, of the refusal to employ a person because s/he is
married to a person belonging to a certain ethnic group.
c. The announced intention to discriminate should be considered as discrim-
ination, even in the absence of a specific victim. For instance, an employ-
ment advertisement indicating that Roma/Gypsies need not apply should
fall within the scope of the legislation, even if no Roma/Gypsy has actually
applied.
Paragraph 7 of the Recommendation
17. According to paragraph 7 of the Recommendation, the prohibition of
discrimination should apply in all areas. Concerning employment, the prohib-
ition of discrimination should cover access to employment, occupation and
self-employment as well as work conditions, remunerations, promotions and
dismissals.
Blasphemy, insult and hatred
48
18. As concerns membership of professional organisations, the prohibition
of discrimination should cover: membership of an organisation of workers or
employers, or any organisation whose members carry on a particular profes-
sion; involvement in such organisations; and the benefits provided for by such
organisations.
19. Concerning education, the prohibition of discrimination should cover pre
-school, primary, secondary and higher education, both public and private.
Furthermore, access to education should not depend on the immigration status
of the children or their parents.
20. As concerns training, the prohibition of discrimination should cover initial
and on-going vocational training, all types and all levels of vocational guidance,
advanced vocational training and retraining, including the acquisition of practical
work experience.
21. As concerns housing, discrimination should be prohibited in particular
in access to housing, in housing conditions and in the termination of rental
contracts.
22. As concerns health, discrimination should be prohibited in particular in
access to care and treatment, and in the way in which care is dispensed and
patients are treated.
23. Concerning social protection, the prohibition of discrimination should cover
social security, social benefits, social aid (housing benefits, youth benefits, etc.)
and the way in which the beneficiaries of social protection are treated.
24. As concerns goods and services intended for the public and public places,
discrimination should be prohibited, for instance, when buying goods in a shop,
when applying for a loan from a bank and in access to discotheques, cafés or
restaurants. The prohibition of discrimination should not only target those who
make goods and services available to others, but also those who receive goods
and services from others, as would be the case of a company which selects the
providers of a given product or service on the basis of one of the enumerated
grounds.
25. Concerning the exercise of economic activity, this field covers competition
law, relations between enterprises and relations between enterprises and the
state.
26. The field of public services includes the activities of the police and other law
enforcement officials, border control officials, the army and prison personnel.
Paragraph 8 of the Recommendation
27. According to paragraph 8 of the Recommendation, the law should place
public authorities under a duty to promote equality and to prevent discrimination
in carrying out their functions. The obligations incumbent on such authorities
Council of Europe texts on respect for others' culture and beliefs
49
should be spelled out as clearly as possible in the law. To this end, public author-
ities could be placed under the obligation to create and implement “equality
programmes” drawn up with the assistance of the national specialised body
referred to in paragraph 24 of the Recommendation. The law should provide
for the regular assessment of the equality programmes, the monitoring of their
effects, as well as for effective implementation mechanisms and the possibility
for legal enforcement of these programmes, notably through the national spe-
cialised body. An equality programme could, for example, include the nomin-
ation of a contact person for dealing with issues of racial discrimination and
harassment or the organisation of staff training courses on discrimination. As
regards the obligation to promote equality and prevent discrimination, the Rec-
ommendation covers only public authorities; however, it would be desirable
were the private sector also placed under a similar obligation.
Paragraph 10 of the Recommendation
28. According to paragraph 10 of the Recommendation, in urgent cases, fast-
track procedures, leading to interim decisions, should be available to victims
of discrimination. These procedures are important in those situations where
the immediate consequences of the alleged discriminatory act are particularly
serious or even irreparable. Thus, for example, the victims of a discriminatory
eviction from a flat should be able to suspend this measure through an interim
judicial decision, pending the final judgment of the case.
Paragraph 11 of the Recommendation
29. Given the difficulties complainants face in collecting the necessary evidence
in discrimination cases, the law should facilitate proof of discrimination. For this
reason, according to paragraph 11 of the Recommendation, the law should
provide for a shared burden of proof in such cases. A shared burden of proof
means that the complainant should establish facts allowing for the presumption
of discrimination, whereupon the onus shifts to the respondent to prove that
discrimination did not take place. Thus, in case of alleged direct racial discrim-
ination, the respondent must prove that the differential treatment has an objec-
tive and reasonable justification. For example, if access to a swimming pool is
denied to Roma/Gypsy children, it would be sufficient for the complainant to
prove that access was denied to these children and granted to non-Roma/Gypsy
children. It should then be for the respondent to prove that this denial to grant
access was based on an objective and reasonable justification, such as the
fact that the children in question did not have bathing hats, as required to gain
access to the swimming pool. The same principle should apply to alleged cases
of indirect racial discrimination.
30. As concerns the power to obtain the necessary evidence and information,
courts should enjoy all adequate powers in this respect. Such powers should be
Blasphemy, insult and hatred
50
also given to any specialised body competent to adjudicate on an individual
complaint of discrimination (see paragraph 55, below).
Paragraph 12 of the Recommendation
31. Paragraph 12 of the Recommendation states that the law should provide for
effective, proportionate and dissuasive sanctions for discrimination cases. Apart
from the payment of compensation for material and moral damages, sanctions
should include measures such as the restitution of rights which have been lost.
For instance, the law should enable the court to order re-admittance into a firm
or flat, provided that the rights of third parties are respected. In the case of dis-
criminatory refusal to recruit a person, the law should provide that, according
to the circumstances, the court could order the employer to offer employment to
the discriminated person.
32. In the case of discrimination by a private school, the law should provide
for the possibility of withdrawing the accreditation awarded to the school or
the non-recognition of the diplomas issued. In the case of discrimination by an
establishment open to the public, the law should provide for the possibility of
withdrawing a licence and of closing the establishment. For example, in the case
of discrimination by a discotheque, it should be possible to withdraw the licence
to sell alcohol.
33. Non-monetary forms of reparation, such as the publication of all or part of a
court decision, may be important in rendering justice in cases of discrimination.
34. The law should provide for the possibility of imposing a programme of
positive measures on the discriminator. This is an important type of remedy in
promoting long-term change in an organisation. For instance, the discriminator
could be obliged to organise for its staff specific training programmes aimed
at countering racism and racial discrimination. The national specialised body
should participate in the development and supervision of such programmes.
Paragraph 15 of the Recommendation
35. According to paragraph 15 of the Recommendation the law should provide
that harassment related to one of the enumerated grounds is prohibited. Harass-
ment consists in conduct related to one of the enumerated grounds which has the
purpose or the effect of violating the dignity of a person and of creating an intim-
idating, hostile, degrading, humiliating or offensive environment. As far as pos-
sible, protection against harassment related to one of the enumerated grounds
should not only target the conduct of the author of the harassment but also that
of other persons. For instance, it should be possible for the employer to be held
responsible, where applicable, for harassment by colleagues, other employees
or third parties (such as clients and suppliers).
Council of Europe texts on respect for others' culture and beliefs
51
Paragraph 16 of the Recommendation
36. Paragraph 16 of the Recommendation states that the law should provide
for the obligation to suppress public financing of political parties which promote
racism. For example, public financing for electoral campaigns should be refused
to such political parties.
Paragraph 17 of the Recommendation
37. Paragraph 17 of the Recommendation states that the law should provide
for the possibility of the dissolution of organisations which promote racism. In
all cases, the dissolution of such organisations may result only from a court
decision. The issue of the dissolution of these organisations is also dealt with
under Section IV on criminal law (see paragraphs 43 and 49, below).
IV. Criminal law
Paragraph 18 of the Recommendation
38. The Recommendation limits the scope of certain criminal offences set out in
paragraph 18 to the condition that they are committed in “public”. Current prac-
tice shows that, in certain cases, racist conduct escapes prosecution because it is
not considered as being of a public nature. Consequently, member states should
ensure that it should not be too difficult to meet the condition of being committed
in “public”. Thus, for instance, this condition should be met in cases of words
pronounced during meetings of neo-Nazi organisations or words exchanged in
a discussion forum on the Internet.
39. Some of the offences set out in paragraph 18 of the Recommendation con-
cern conduct aimed at a “grouping of persons”. Current practice shows that
legal provisions aimed at punishing racist conduct frequently do not cover such
conduct unless it is directed against a specific person or group of persons. As a
result, expressions aimed at larger groupings of persons, as in the case of refer-
ences to asylum seekers or foreigners in general, are often not covered by these
provisions. For this reason, paragraph 18a, b, c and d of the Recommendation
does not speak of “group” but of a “grouping” of persons.
40. The term “defamation” contained in paragraph 18b should be understood
in a broad sense, notably including slander and libel.
41. Paragraph 18e of the Recommendation refers to the crimes of genocide,
crimes against humanity and war crimes. The crime of genocide should be
understood as defined in Article II of the Convention for the Prevention and Pun-
ishment of the Crime of Genocide and Article 6 of the Statute of the International
Criminal Court (see paragraph 45, below). Crimes against humanity and war
crimes should be understood as defined in Articles 7 and 8 of the Statute of the
International Criminal Court.
Blasphemy, insult and hatred
52
42. Paragraph 18f of the Recommendation refers to the dissemination, distribu-
tion, production or storage of written, pictorial or other material containing racist
manifestations. These notions include the dissemination of this material through
the Internet. Such material includes musical supports such as records, tapes and
compact discs, computer accessories (e.g. floppy discs, software), video tapes,
DVDs and games.
43. Paragraph 18g of the Recommendation provides for the criminalisation of
certain acts related to groups which promote racism. The concept of a group
includes in particular de facto groups, organisations, associations and political
parties. The Recommendation provides that the creation of a group which pro-
motes racism should be prohibited. This prohibition also includes maintaining or
reconstituting a group which has been prohibited. The issue of the dissolution of
a group which promotes racism is also dealt with under Section III on civil and
administrative law (see paragraph 37, above) and below (see paragraph 49).
Moreover, the notion of “support” includes acts such as providing financing
to the group, providing for other material needs, and producing or obtaining
documents.
44. In its paragraph 18h the Recommendation states that the law should penal-
ise racial discrimination in the exercise of one’s public office or occupation. On
this point, the definitions contained in paragraphs 1b, 1c and 5 of the Recom-
mendation apply Dostları ilə paylaş: |