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Framework decision on combating racism and xenophobia

The purpose of this framework decision is to ensure that racism and xenophobia are punishable by effective, proportionate and dissuasive criminal penalties in the European Union (EU). Furthermore, it aims to improve and encourage judicial cooperation in this field.

ACT

Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law.

SUMMARY

As a follow-up to Joint Action96/443/JHA, this framework decision provides for the approximation of laws and regulations of the Member States on offences involving racism and xenophobia. Racist and xenophobic behaviour must constitute an offence in all Member States and must be punishable by effective, proportionate and dissuasive penalties of a maximum of at least one to three years of imprisonment.

This framework decision applies to all offences committed:

  • within the territory of the European Union (EU), including through an information system;
  • by a national of a Member State or for the benefit of a legal person established in a Member State. To that end, the framework decision provides criteria on how to determine the liability of a legal person.

Certain forms of conduct as outlined below, which are committed for a racist or xenophobic purpose, are punishable as criminal offences:

  • public incitement to violence or hatred directed against a group of persons or a member of such a group defined on the basis of race, colour, descent, religion or belief, or national or ethnic origin;
  • public dissemination or distribution of tracts, pictures or other material containing expressions of racism and xenophobia;
  • public condoning, denying or grossly trivialising crimes of genocide, crimes against humanity and war crimes as defined in the Statute of the International Criminal Court (Articles 6, 7 and 8) and crimes defined in Article 6 of the Charter of the International Military Tribunal, when the conduct is carried out in a manner likely to incite violence or hatred against such a group or a member of such a group.

Instigating, aiding or abetting in the commission of the above offences is also punishable.

With regard to the offences listed in Article 1, Member States must ensure that they are punishable by:

  • effective, proportionate and dissuasive penalties;
  • terms of imprisonment of a maximum of at least one to three years.

In all cases, racist or xenophobic motivation is considered to be an aggravating circumstance or, alternatively, such motivation may be taken into consideration when determining the penalties to be applied.

With regard to legal persons, the penalties must be effective, proportionate and dissuasive and must consist of criminal or non-criminal fines. In addition, legal persons may be punished by:

  • exclusion from entitlement to public benefits or aid;
  • temporary or permanent disqualification from the practice or commercial activities;
  • being placed under judicial supervision;
  • a judicial winding-up order.

The initiation of investigations or prosecutions of racist and xenophobic offences must not depend on a victim’s report or accusation.

REFERENCES

ActEntry into forceDeadline for transposition in the Member StatesOfficial Journal
Framework Decision 2008/913/JHA

6.12.2008

28.11.2010

OJ L 328 of 6.12.2008

Last updated: 23.03.2009
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