Luxembourg, 19/04/2007 (Agence Europe) - After almost six years of negotiation on a text intended to make racist and xenophobic acts in the EU a criminal offence, member states have finally come to an agreement, said German Justice Minister Brigitte Zypries, speaking in Luxembourg on Thursday on behalf of the German EU Presidency. “We have reaffirmed our values”, said Mr Zypries, obviously very pleased with the success of the talks that she herself had headed. In reality, the EU27 have an agreement “ad referendum”, in so far as the parliaments of Lithuania and Estonia are expected to endorse the text.
Content of the proposal: The aim of the proposal is to reach a minimum amount of harmonisation in provisions on making the diffusion of racist and xenophobic comments a criminal offence. Each state should impose a penalty of three years' imprisonment for “public incitement to violence or hatred against a group of persons or a member of such a group, defined with reference to race, colour, religion, descent, and national or ethnic origin”. The same sanctions will be applied for any public apology, negation or gross flippancy on crimes of genocide, crimes against humanity and war crimes, as defined in the statutes of the International Criminal Court and in the charter of the court in Nuremberg. It will be up to the legal systems to verify on a case-by-case basis whether a given historic
corresponds to the definition. Even if it is not mentioned as such, this covers the Holocaust, as has already been provided for in the often more severe legislation of a number of member states. However, the framework decision will not ban symbols such as the swastika, which is a religious symbol for the large Hindu minority in Great Britain. Racist or xenophobic motivation will constitute aggravating circumstances for the other crimes. Finally the framework decision will require the authorities responsible for bringing criminal charges to proceed with cases for the crimes set out in the text.
Very delicate negotiations: Given that negotiations on the text had already failed twice and in the knowledge that unanimity is always required in this area, Thursday's talks were once again uncertain between the two diametrically opposed camps. Some countries, like France, Germany, Austria and Spain, have put in place, more or less strict and effective, measures to combat racist statements. Others, like the United Kingdom, Ireland, Italy and the Scandinavian countries, are generally wary of this kind of legislation because they believe these measures infringe freedom of expression, as defined in their national laws. The removal of Italy's reservations allowed the German presidency to relaunch negotiations. However, to get those opposed to any attack on freedom of expression to accept the text, there had to be added to the body of the text that behaviour would not be sanctioned unless it could incite violence or hatred towards a group of people. These states will also have the opportunity to punish only behaviour which could disrupt public order, is threatening, offensive or insulting. In other words, a negationist could continue freely to express his/her views in those countries where freedom of expression is inviolable. “To say in the United Kingdom, for example, that the gas chambers never existed would not be liable to punishment,” said a European source. For purely national reasons, Poland wanted included in the text that anyone who challenged Polish responsibility in the Nazi concentration camps could be charged. “This is nonsensical in the context of this framework decision. It's like falsifying historic responsibility and is, therefore, dangerous,” said a diplomatic source. The Polish case was finally settled, since Poland will make a unilateral statement on this matter. A final point remained, however, in order to come to an agreement. Estonia and Lithuania would like Stalinian crimes included in the text, a proposal which was categorically refused by the other member states. To satisfy these two states, however, the others agreed to add a preamble to the text. This states that the framework decision would not prevent member states to include within their law other crimes, which could be pursued with equal vigour as those specifically mentioned in the text. A declaration was also attached to the text in which it was stated that, although the framework decision does not actually cover crimes committed by totalitarian regimes, the Council nonetheless “deplores all of these crimes”. Furthermore, the Council calls on the Commission to state - within the two years following entry into force of the decision - the need for an additional instrument that would this time cover crimes against humanity and war crimes.
When all is said and done, does this decision only have symbolic value? Member states should modify their internal law if it does not already go beyond what is foreseen in the text. Most experts, however, consider that the scope of the text has been considerably reduced compared to the Commission's initial proposal. “The level of harmonisation has been brought down quite a notch”, one diplomat deplored. “At least, it will not be possible to fall below the principles embodied in the text”, he concluded. (bc)