Читать книгу Xenophobia, radicalism and hate crime in Europe 2015 - Коллектив авторов, Ю. Д. Земенков, Koostaja: Ajakiri New Scientist - Страница 4

Legislative changes in Europe this year were predominantly aimed at solving the following issues: a) rapid illegal immigration; b) integration of legal immigrants; c) social radicalisation; d) terrorism. This was done by introducing tougher migration and anti-racism legislation, and combating various forms of hate crime. The European Union also continued to liberalise LGBT relations. However, countering terrorism has been the main objective of European legislators in recent years.

France, which has the highest number of radical Islamist groups in the European Union and has suffered most from extremism in the region, had adopted a Security and Counter Terrorism Act in December 2012. The law provided for much tougher punishment for people complicit in terrorist activities.[7] On November 4, 2014, France adopted another counter-terrorism law that allowed its authorities to confiscate passports and prohibit exit for people who are leaving for Syria and Iraq with the intention to join radical Islamist organisations. The law also allowed for extra-judicial blocking of Islamist websites.[8]

In 2015, France furthered its anti-extremism legislation by adopting a surveillance act (July 24, 2015), which among other things allowed the security services to plant so-called “black boxes” at internet service providers in order to “monitor traffic and suspicious behavioural patterns through the real-time analysis of metadata.”[9]

Note that the French were particularly critical of the United States Counter Terrorism Act, adopted following the 9/11 attacks and containing similar provisions. Thus, following the adoption of the French counterpart of the Act, President François Hollande sent the bill for the approval of the Constitutional Council, which found it corresponded to the French Constitution.[10] This was an unprecedented step since the Council’s establishment in 1958.

It is fair to say that French and American anti-extremism legislation formed the model for counter terrorism legislation in many countries around the world.

In 2015, Germany[11] and the United Kingdom[12] adopted new counter terrorism acts. Italy and the Netherlands also tightened their counter terrorism legislation during the monitored period.[13] In 2016, Russia is to follow their example.[14] In 2015, Russia had increased fines for the production of media containing the justification of, or public calls for, terrorist or extremist activities[15].

Analysing modern European counter terrorism legislation reveals several of its key elements:

1. Possibility of temporary border control or closure.

2. Introduction of pre-trial ban on travel and confiscation of travel documents, based on security intelligence.

3. Legalisation of internment, deprivation of citizenship, and deportation of persons complicit in terrorist activity (amendments to the Citizenship Act of the Netherlands allows for the annulment of citizenship in the interest of national security).

4. Increased online surveillance.

5. Tougher measures to combat the funding of terrorist activities.

6. Closer monitoring of suspicious activity or behaviour through cooperation with ISPs, transport, medical and other services.

7. Bans on social welfare for so-called “Jihadi tourists.”

Another group of legislative changes in Europe in 2015 focused migration flows.

In July 2015, Germany tightened its Refugee Act, introducing criminal liability for providing false information when seeking asylum. Illegal migrants can not only be arrested, but also have their passports taken away until further notice. Federal Minister of the Interior Thomas de Maizière (Christian Democratic Union) said that strict treatment of new migrants is necessary to ensure that the public agrees with immigration and entry of people who are really in need of Germany’s protection.[16]

In July and August, Hungary amended its border regulations and introduced criminal responsibility for illegally entering the country.[17] It also recognised Servia as a “safe third party”, which allowed for a quick return of transit refugees to that country. The law introduced army presence at the border and allowed the use of non-lethal measures against migrants and refugees, including rubber bullets and tear gas.

Russia is taking measures to streamline the immigration process. As of May 2015, Russian authorities rejected entry for 1.35 million foreign nationals who violated the regulations of stay. Registration of foreign nationals has been somewhat improved. Previously, many migrant workers were registering in so-called “rubber flats” – addresses that have no relation to their actual place of residence. Such flats often officially housed hundreds of migrants, who actually lived in other places, or did not have housing at all. Since the adoption of a corresponding law, the number of rubber flats was reduced from 10,090 to 1,160.[18]

On September 17, 2015, British Parliament introduced a new Immigration Bill, which was the result of a Conservative policy aimed at attracting Eurosceptics and those concerned with the increased flows of refugees.[19] This policy culminated in summer 2016, when following a national referendum Britain voted to leave the European Union. The Immigration Act was criticised by the British public, as it was aimed at reducing the number of immigrants and people seeking asylum by reducing social welfare and tightening the control over the housing and labour market.[20]

In 2015, the British government announced a plan to increase youth employment. It was proposed that jobseekers aged 18 to 21 will be sent to work boot camps – doing community service for 30 hours per week, four weeks per year, or face losing their Jobseekers Allowance.[21]

This sparked criticism from the public, including the fact that the bill would have been primarily aimed at national minorities and immigrants, as these groups have the highest levels of youth unemployment. For example, youth unemployment in black communities in the country is more than 50 %.[22]

France had also transformed its immigration legislation in 2015. Applications for asylum have been sped up from the maximum of 24 months to 9 months. At the end of this term, asylum seekers are to be granted asylum or deported from the country. Asylum seekers are now placed in special camps across the whole country (easing the burden on the Paris region), and under threat of losing social assistance and other privileges. In addition, the French parliament started considering a new bill on the rights of foreign nationals.[23]

The third group of legislative changes adopted in 2015 was aimed at streamlined integration of legal immigrants.

In June 2015, Greece adopted a law that automatically granted Greek citizenship to children of foreign nationals born in the country. This bill affects almost 200,000 second-generation immigrants.[24]

A similar bill was adopted in Italy. At the time of writing, it is awaiting the Senate’s approval. The so called ius soli act also provides citizenship to children of foreign nationals, provided they are permanent residents in the country. The law specifically mentions that it is targeted at non-EU citizens.[25] Experts believe that this law means that the new generation of Italians who are almost fully integrated into society (with knowledge of language, traditions, and having received education in Italy) will finally be able to identify themselves as part of the nation.

European governments have been taking measures to encourage immigrants to adapt to new realities. However, these measures often result in outright forced denouncement of their identities. This was most apparent in the Netherlands, which adopted amendments to its integration legislation that affected non-EU citizens seeking residency. The new bill requires people who have been residing in the Netherlands for several years to pass a language exam and demonstrate knowledge of the local labour market. Some human rights observers believe that these exams are of no practical help to immigrants; rather, they demonstrate negative attitudes towards immigrants and facilitate isolationist tendencies. For example, migrants from Maghreb and Africa are asked what they would do “if they saw two men kissing on the street.” Expressing negative views in this case often results in failing the exam.[26] As a result, many refuse to take the exam altogether.

This is a typical example of how European governments try to speed up the integration of legal immigrants, where integration comes in the form of assimilation and loss of traditional identities.

Russia has been seeking to improve the conditions for the employment of migrant workers. Since January 2015, people from countries with a visa-free agreement with Russia can seek employment outside quotas by acquiring a work patent (permit), provided they have indicated “work” as the reason for entry in the country. Thus migrant workers have been divided into two categories, which was supposed to improve the position of migrants from visa-free countries. However, the project turned out to be fraught with bureaucratic problems (see Section 2).

Finally, the fourth legislative trend in 2015 was related to combating radicalisation, racism, xenophobia, and facilitating peaceful religious relations.

On September 25, 2015, Poland introduced amendments to the Law on National, Ethnic Minorities, and Regional Languages (January 6, 2005). The proposed Article 9 of the Law on Supported Languages states that a minority language may be used in communication with municipal authorities to the same extent as the official language. This condition applies to municipalities where a “supported” linguistic minority group constitutes for 20 % of the population or above.[27] President Duda, however, had vetoed the bill citing the “high cost of implementation.” It is to be reviewed in parliament in 2016.[28]

In 2015, the German Criminal Code was amended with Art. 46.2, which instructed the courts to consider racist, xenophobic, or other discriminatory motives as aggravating circumstances in the commission of a crime.[29] This is an important development, since previous German legislation did not cover these factors when dealing with violent crime, stating instead that the courts may take them into consideration during sentencing.

In Greece, a proposed amendment to the Criminal Code (Article 361B) introduced criminal responsibility for refusing goods and services on the basis of race, colour, national or ethnic origins, religion, disability, sexual orientation, and gender identity. The article came into force in July 2016[30], and is predominantly aimed against the neo-Nazi Golden Dawn party, which regularly organised giveaways to “pure” Greeks during Orthodox holidays.[31]

The decade-long debates surrounding the construction of a cathedral mosque and a mosque at a Muslim cemetery in Athens continued in the Greek parliament throughout 2015. The issue was first raised in 2006 and finally approved by parliament on August 3, 2016.[32] Advocates for the mosque argue that the project has more social than religious connotations, as it is aimed to improve the position of minorities in Greece. Education and Religious Affairs Minister Nikos Filis argued that Greece should avoid mistakes made by other European policymakers that left many migrant communities socially isolated and vulnerable to the threat of extremism. «It is truly the elephant in room: Europe has not accepted that Islam is a reality,» he told parliament. “The existence of makeshift mosques (in Athens) is a disgrace for our country.”[33]

France has taken significant steps in combating xenophobia and hate crime in 2015, introducing the New National Plan of Action to Counter Racism and Anti-Semitism for the period until 2017.[34] The plan was published on April 17, 2015 and contains the following elements: organisation of a public awareness campaign in support of national minorities; physical protection of Jewish and Islamic schools, places of worship, etc.; establishment of a national department to combat hate speech online, and others. However, more importantly, the plan proposes a prompt modification of the French criminal law to introduce racism and anti-Semitism as aggravating circumstances in all violations. On October 8, 2015, President Hollande instructed the Justice Minister to prepare a formal proposal of this bill by the end of the year.[35] The bill is currently being reviewed by parliament. There is also a possibility that sexism will be included, alongside racism as an aggravating circumstance in the commission of a crime.[36]

On November 23, Russian President Vladimir Putin signed a law that prohibited recognising the main Christian, Muslim, Jewish, and Buddhist texts as extremist. The law will apply to the Bible, Koran, Tanakh, and Kangyur.[37] The law became necessary when Yuzhno-Sakhalinsk City Court recognised a Muslim book “Dua to God: its purpose and place in Islam” as extremist, finding that the book promoted the superiority of Islam over other religions. In November, the decision was overruled, and the bill prohibiting the recognition of ancient religious texts as extremist followed shortly afterwards.[38]

In 2015, a whole range of bills aimed at harmonising ethnic and religious relations have been adopted in Ukraine. However, some of them have sparked criticism among human rights activists and minority groups. On August 25, 2015, President Petro Poroshenko signed the Decree № 501/2015 “On the Approval of the National Human Rights Strategy”.[39] The strategy listed several systemic problems in Ukraine related to human rights and freedoms and focused on preventing and combating discrimination, as well as “ensuring the rights of indigenous peoples and national minorities”, aiming to bring Ukraine’s anti-discrimination legislation in line with international standards.

On November 12, 2015, the Ukrainian parliament (Verkhovna Rada) introduced amendments to the Labour Code in order to harmonise anti-discrimination legislation with the European Union.[40] The bill prohibited any form of discrimination in the workplace, including sexual orientation, gender identity, disability and others.[41]

In December 2015, the intergovernmental Ukrainian-German commission was established to deal with affairs relating to German nationals living in Ukraine.[42]

However, on November 23, 2015, the Ukrainian Cabinet of Ministers adopted a Decree № 1393-p which approved the Action Plan on the Implementation of the National Human Rights Strategy for the period up to 2020.[43] Among other important provisions, the Action Plan proposes to remove a paragraph from Article 161 of the Criminal Code, which provides criminal responsibility for discrimination. Instead, it proposes administrative and civic responsibility in the form of fines for damages.[44] This measure is indicative of the shortcomings in the country’s policy towards prevention and counteraction of ethnic discrimination. It is worth noting that in May 2015, the Ukrainian Cabinet adopted a Decree № 333, which dissolved the National Expert Commission on the Public Morality Affairs.[45] The Commission was the last remaining body that had the right to monitor media and public events to identify incitement to hate crime, in accordance with the law “On the Protection of Public Morality” (20/11/2013).[46] In other words, the aforementioned commission was equipped to provide legal assessment of a public action, which had to be considered by court during trials. This included incitement to ethnic and religious hostilities, blasphemy, and desecration of places of national and religious importance. Since its dissolution, Ukraine does not have a state body capable of assessing actions in this field.

On May 14, 2015, the government of Ukraine reduced state funding for cultural publications in minority languages.

The law “On Local Elections” (14/07/2015) has deprived the Internally Displaced Persons (IDPs) from the Donetsk, Luhansk, and Crimea regions of the right to vote in elections of the regions they are registered in. There are certain exceptions in special constituencies. Some publications, citing the Central Election Commission of Ukraine, reported that IDPs will be able to participate in local elections in their regions only after the conclusion of the armed conflict.[47] Critics noted that the law is in conflict with the law “On the Provision of Rights and Freedoms of Internally Displaced Persons”, according to which IDPs can participate in local elections by changing the constituency they vote in.

Shortly thereafter, the Ukrainian Cabinet adopted the Decree № 736 (24/09/2015) relating to the “questions regarding the Republic of Crimea and the city of Sevastopol”.[48] The Decree specified the steps to ensure the rights and freedoms in a territory no longer under Kiev’s control. It also stressed the need to create conditions for the “free development of the Crimean Tatar language, languages of other indigenous peoples and ethnic minorities residing on the temporarily occupied territory of Ukraine”, as well as to “facilitate the satisfaction of cultural and educational needs, development of ethnic identity” of national minorities in the region. Interestingly, such measures have not been brought up until after the annexation of Crimea by Russia in 2014.

Lack of a cohesive anti-discrimination legislation remains a problem for Russia. “Discrimination” as a term is only contained in the Russian Criminal Code and is poorly defined as the violation of citizens’ rights, freedoms, and legal interests. However, according to international law, violation of rights and freedoms can be one of the goals or consequences of discrimination, but not its form. In addition, Russian legislation does not specify what constitutes as a “violation of rights”, does not identify forms of discrimination, differences between direct and indirect discrimination, victimisation, and does not prohibit discrimination by officials, or discrimination based on nationality. A whole range of important legislative documents did not contain the prohibition of discrimination at all. Normative acts that prevent informal discrimination in employment, housing, education, healthcare, etc. are virtually non-existent.

To summarise, we have observed the following legislative trends relating to combating hate crime across Europe in 2015:

• Tougher counter terrorism legislation, sometimes to the point of violation of civil rights.

• Tougher criminal legislation with the aim to protect minority rights and establish hate motives as an aggravating circumstance in the commission of a crime.

• Tougher immigration legislation with the aim to reduce illegal immigration.

• Easing of the naturalisation process for legal immigrants, under certain conditions – their knowledge of state language, respect for local traditions, and familiarity with the labour market.

• Tougher anti-racism and anti-discrimination legislation.

These factors certainly demonstrate a shifting situation, comparing to previous years, when hate crime and related offenses were handled solely through police measures and occasional declarations. In this regard, the situation in Ukraine is particularly alarming, after the country removed criminal responsibility for discrimination and dissolved the last body responsible for assessing the public sphere and identifying incitements to violence. Ukraine’s treatment of IDPs in terms of the right to vote in local elections is also concerning. Another worrying fact was the Polish President’s veto on the Law on National, Ethnic Minorities, and Regional Languages, which would have introduced the term “supported languages” to the legal vocabulary of the country. Anti-discrimination legislation in Russia leaves a lot to be desired and has a negative impact on a whole range of vulnerable groups.

Certain legislative measures taken in 2015 have worried human rights observers, who regard them as a direct threat to civil rights. The new British Immigration Act has been widely criticised as discriminatory, along with the proposed measures to deal with unemployment among young adults, 50 % of whom are national minorities. Counter terrorism laws in several countries have been criticised for excessive surveillance and encroaching on the private life of citizens. Amendments to the Integration Act in the Netherlands have introduced compulsory exams for immigrants that can be regarded as insulting to religious feelings and secular traditions of some countries.

Several legislative measures in 2015 have been aimed at liberalising LGBT relations as part of the general EU policy protecting LGBT rights. On December 22, 2015, Greece finally recognised civil partnerships among same-sex couples. The new law, supported by the SYRIZA party, allows same-sex couples to enjoy some of the same rights as traditional married couples, such as medical proxy and the right to inheritance. On the other hand, transgender people are still excluded from these rights. Greece had also abolished the obsolete provision that prohibited “unnatural indecency” in public (Art. 347 of the Criminal Code). On the same day, Greek parliament started working on a law that would recognise gender self-identification.

The Netherlands, where same-sex marriage has been legal for several years, adopted two new legislative acts in 2015, which provided certain rights to the transgender people and provided the right to adoption for lesbian couples.[49]

Meanwhile, Poland rejected a bill on civil partnerships (May 26, 2015). 215 out of 385 members of parliament have voted against the proposition, 146 voted in favour and 24 abstained from voting.[50]

LGBT rights is still an issue in countries like Northern Ireland, Hungary, Germany, Italy, Russia, and Ukraine. Therefore, it can be concluded that countries with more widespread Christian traditions are more socially conservative and are not yet prepared to accept new western trends.