Social Prerequisites for the Effective Fight Against Bias-Motivated Crimes Through Criminal Law and Minority Rights Protection (SPECTRA) – HAS-ELTE Momentum Research Group
The research group is supported by the Hungarian Academy of Sciences (HAS) and is hosted by the Criminology Department of ELTE Faculty of Law. It is managed and operated under the coordination of the research group leader Petra Bárd, associate professor at the Criminology Department. Seven practitioners and researchers fro various disciplines join the team: Ildikó Barna associate professor at ELTE, Deparment for Social Research Methodology; Tamás Dombos board member of Háttér Society; Borbála Fellegi and Gábor Héra executive director and researcher at Foresee Research Group; Eszter Kirs associate professor at the Institute of International Studies, Corvinus University of Budapest; Veronika Szontagh assistant lecturer, and ErikUszkiewicz, PhD candidate at ELTE Faculty of Law.
Hate crimes, where someone is targeted due to the perpetrator’s bias, are hitting particularly hard on victims. They are typically attacked in their identity or for an unchangeable, innate characteristic. Victims are not seen as individual human beings, they are interchangeable by any other member of the group detested by the criminal. They also affect the victim’s wider community, which typically is an unpopular minority in the given country. Society will also be shaken, social tensions may rise high after hate crime attacks. The first research question is what social responses can be given to this phenomenon, and our hypothesis is that criminal law is only one, and perhaps not even the most important one of the tools available. The second research question addresses anomalies within the criminal justice system: why are hate crimes mostly invisible to state authorities in most Member States of the European Union. Against this background an all-encompassing comparative analysis of the 28 Member States’ hate crime laws and empirical research in some selected jurisdictions will highlight the problem areas and contribute to the summary on good practices. A large-scale empirical research in Hungary will be conducted and problems in the jurisprudence will be discussed in light of international good practices. Finally, in the frame of the research, the prerequisites of victims’ rights and the chances of restorative justice techniques will be explored when resolving tensions potentially leading to bias motivated crimes.
In 2009, the Hungarian Academy of Sciences established its so-called Lendület (in English: Momentum) excellence program targeting young researchers. The aim of the program is to dynamically renew research conducted at academic institutions and universities by attracting and retaining in the country internationally renowned researchers and outstanding young scholars. Lendület is aimed at promoting excellence and mobility: it provides resources for research groups exploring new research topics at academic institutions. This is the first time that the Faculty of Law of Eötvös Loránd University (ELTE) may host a Lendület research group. Anna Rácz interviews Associate Professor Petra Bárd from the Department of Criminology, head of the research team exploring the social prerequisites for the effective fight against hate crimes through criminal law means and minority rights protection.
This is the first time for a Lendület research group specialized in the field of social sciences to be set up at the Faculty. What do you think will be the advantages of the fact that this time the university can make space for the work?
I take it as a great honour that I could form the first Lendület research group with the support of the Hungarian Academy of Sciences (HAS) at the ELTE Faculty of Law. In the framework of the research, experts with different scientific backgrounds are going to analyse the legal and sociological nature of hate crimes, the possible legal steps against them, as well as the social conditions of effective state measures, victim support and crime prevention strategies.
According to the definition of hate crime in the academic literature, this expression refers to a criminal act that is committed out of hatred for the group of the victim based on prejudice. In addition to the direct victim, the criminal act can also have an intimidating effect on the community concerned and that is why these acts are often referred to as “message crimes.” Moreover, hate crimes can escalate existing social tensions and generate further ones. It becomes clear from the definition that hate crime is a multi-layered social problem that requires an interdisciplinary approach. Criminology is the autonomous, empirical social science which aggregates the complex knowledge basis, which is necessary for the better understanding of criminality, the analysis of crime control and the understanding of the process of becoming a perpetrator or a victim. It is therefore a huge privilege that we can conduct the research at the Department of Criminology of the ELTE Faculty of Law, which was the first independent criminology department in Hungary, the alma mater of national criminology, and a professional meeting point for international cooperation.
The presence of the Lendület research group at the university brings further advantages in addition to the direct value of the research. Some of the researchers work as lecturers of the Faculty and we can rely on their enhanced participation in the education. It is an important opportunity for colleagues who do not work as full-time lecturers, since it can help them to develop their career. Meanwhile it is also beneficial for the Faculty that it can count on the expertise of the members of the Lendület research group, with special regard to the fact that the Department of Criminology is responsible for the master and doctoral programs in criminology beside the graduate program in legal studies. The research contributes to the cooperation between Hungarian universities and to the international reputation of the Faculty. Our constant presence at the international academic scene ensures the visibility of the project results and the successes of the Faculty in general. Since our results encompass among others law enforcement good practices and can shed light on possible anomalies, the Lendület research group can further strengthen the bridge between researchers and practitioners.
In which of the three possible categories did the research group submit its application?
According to the call, Lendület II is the category for individuals between 38 and 45 years of age with “successful, independent research activities.” Due to my age and career development I applied for this category. I defended my PhD dissertation ten years ago, and took part in many international research projects, furthermore I led some of them during the last three years. Concerning the age requirement I would like to highlight that in accordance with the international trend, the HAS fights against the glass-ceiling effect, and takes into consideration the gap in the carrier path after scholars give birth – a phenomenon primarily effecting women. Therefore, the age limit is raised by two years per child in every application category.
How did you select the topic, and why exactly did you chose hate crimes?
I have always dealt with frontier problems between different branches of law, especially with those that concern the field of criminal law, European criminal law and constitutional law. The topic of hate crimes also falls within this category which raises issues of criminology, criminal law and minority protection.
My interest in this topic has some history. I think I am lucky, because in parallel with my university career I had the chance to work for 12 years at the National Institute of Criminology (NIC). NIC is the scientific and research institute of the Prosecution Office. During the formation of the annual research plan, researchers can recommend topics in addition to those defined by the Prosecution Office, thus I suggested hate crimes. My colleagues at NIC already analysed this topic some years ago, but since there were no up-to-date results at the time, so I could start researching. Under the management of Directors György Virág, then György Vókó I had the liberty to work; and I got all the support from the General Prosecutor’s Office and the County Prosecutors’ Offices for researching case files. The cooperation with colleagues from the practical field is always useful, but in an empirical research study it is invaluable. I defined the research question for the first time in 2014 in the publication that was compiled as a birthday laudation for Katalin Gönczöl Professor Emerita and then I published parts of my research results in the Hungarian academic journals Belügyi Szemle and Kriminológiai Közlemények. Preliminary results from the NIC research made the basis of the Lendület application. I have always felt that in order to truly understand the topic, social scientific background is needed. It may sound self-critical from a legal professional, but I had to admit that criminal justice in hate crime cases plays only one and not necessarily the most important role from the many reactions that a state can apply. Participating experts in the Lendület research group reflect this interdisciplinary nature of the topic.
Who are the participating experts in the research group? Would you tell us some more about them? How many members are involved?
There are eight experts in the project, which means that I as head of research invited seven colleagues. Ildikó Barna is Associate Professor of sociology at ELTE Faculty of Social Sciences where she also serves as a Head of Department of Social Research Methodology. She received a PhD in sociology from ELTE in 2009. Her fields of research include antisemitism, hate crimes, hate speech, far right, xenophobia, history of the Holocaust and quantitative research on archive sources. She takes part in many international researches, in 2017-2020 she was awarded the János Bolyai research fellowship at HAS. During the present research, she will be of great help in defining and finetuning methodology as well as understanding social tensions and prejudice resulting from hate crimes in extreme cases.
Tamás Dombos is an economist, sociologist, anthropologist, he has been a training expert at the Faculty of Law Enforcement at National University of Public Service since 2017. He has been working for Háttér Society for more than ten years, where he has gained experience in researching and lobbying for legal and social equality of sexual and gender minorities (LGBTQI people), including cases related to victims of homophobic and transphobic hate crimes. He is going to research first of all the difficulties and possibilities of victim protection in the Lendület research group.
Borbála Fellegi has been the Founder and Managing Director of Foresee Research Group since 2008 where she has been working as a researcher, mediator, facilitator and senior trainer in mediation. As the leader of Foresee and lecturer of ELTE Faculty of Law she manages EU and national research and training projects on restorative mediation procedures and other alternative tools in dispute settlement.
Gábor Héra takes part in the Lendület research group also on behalf of the Foresee Research Group. His fields of expertise include measuring the efficiency of organizations and projects, he also deals with prejudice, discrimination, mediation and other forms of peaceful settlement of conflicts as well as roma integration in Hungary. Hate crime threatens not only the actual victim, but also the community that the attacked person belongs to or that they are perceived to belong to and this generates fear and mistrust in the given community, while also exacerbating social tensions. It may seem obvious that tools of restorative justice can be applied for easing social tensions that generate hate crimes in extreme cases where community plays a major role in finding solutions and aims at restoring deteriorated human relations. Despite all this, this field has relatively little scientific literature and there are even less empirical and practical cases. The two researchers from Foresee can bridge this gap in the frame of the Lendület project.
Eszter Kirsworked as a Lecturer at the University of Miskolc, Department of European and International Law for 15 years and now she is an Associate Professor at the Corvinus University of Budapest, Institute of International Studies. Apart from her academic activities she has been a legal rapporteur at the Hungarian Helsinki Committee since 2013 and contributed to the implementation of several projects concerning criminal law actions against hate crimes. In the framework of the Lendület research group she will be responsible for monitoring international commitments related to hate crimes.
Two PhD candidates of the Faculty will be involved in the research: Veronika Szontagh is a minority policy analyst and criminologist and holds a fellowship in the New National Excellence Program in the academic year of 2017-2018. She has been working as a Research Assistant at HAS Centre for Social Sciences Institute for Legal Studies since the beginning of 2018. She was admitted to the doctoral program after she completed the MA program in criminology at the Department of Criminology with an excellent record, and now she is working on her PhD dissertation about hate crimes and the phenomenon of victim blaming. Erik Uszkiewicz holds a law degree and now works as a Communication and Business Development Manager at an international law firm. His scientific activities are also significant: he regularly takes part in national and international research projects that are related to discrimination, hate crimes, rule of law, democratic culture and volunteering. His PhD research topic is prejudice and discrimination in law enforcement.
Researching hate crimes of course is not without precedent in Hungary. Many important papers – and among them several doctoral dissertations – have been published from the evaluation and analysis of skinhead trials in the early 90s after the regime change, to the investigation and judgment rendered in the case of the serial killing of Roma persons. In 2012 national NGOs founded a Working Group Against Hate Crimes (GYEM) which contributed with invaluable materials to reforms on codification of hate crimes in the new criminal code, to the mapping out difficulties in law enforcement and to a better understanding of previous cases. They organize regular trainings and courses at courts, prosecution offices and with the police in order to make the fight against hate crimes more efficient. We aim at contributing to this important discourse through the results of our research. A consulting body of about 15-20 members from various fields of expertise like legal practitioners, academia and civil society will advise us in this endeavour.
According to the call, one of the goals is to support excellence and mobility at the same time. How will mobility be realized during the research you lead?
We would like to use our results primarily in Hungary, therefore the main focal points of the research are the opportunities available in Hungary in the fight against hate crimes, the Hungarian legislation, the application of the law and the issues of domestic prevention, victim support and reparation. However, it is our unconcealed aim to step out into the stage of international scientific life.
In the application we have foreseen significant comparative legal research. This is unconceivable without international cooperation, without the help of the international colleagues. Obviously we do not carry out this comparative law analysis only for its own sake, for building and maintaining international relations only, or for the intellectual joy of research. As David Nelken, Professor of comparative criminal law noted, beyond the recognition of surprising differences and unexpected similarities, comparatism can contribute to the deeper knowledge and understanding of our legal system. While comparing our legal institutions with those of other systems, the research can serve as a negative self-definition of our legal system and it can help in creating a legislation more efficient than the one which is based solely on national law, excluding any other considerations. From an international perspective it is not only us who can benefit from a comparative legal research, but other countries can also learn from Hungarian good practices and the difficulties arising during the application of law.
There are practical considerations behind submitting the application in English and the plan to have most of our papers published in English. The title of the research, SPECTRA also stems from an English acronym. (Social Prerequisites for the Effective Fight Against Bias-motivated Crimes through Criminal Law and Minority Rights Protection). Publishing predominantly in English professional journals makes it easier for us to participate in the international criminology discourse. Our aim is of course to contribute to awareness-raising in Hungary, thus publishing in Hungarian is also necessary. Hungarian language materials will be used primarily in education.
The research group faces the great task of analyzing the laws of the 28 Member States regarding bias motivated crimes. What kind of methods, tools are useful when processing so many states’ legislation?
As a first step the Researchers will review the relevant provisions of the Member States’ criminal codes and the legislative techniques behind. Then we will compare and group the various codification techniques along aspects predetermined by the research group.
The technique used for codifying provisions on hate crimes committed against protected social groups is basically a question of legal policy. The separate legal treatment of the bias motivated crimes is legitimate, but it is not the only solution legislators can opt for. In principle, even if a hate crime provision is lacking from the criminal code, the court can still develop a jurisprudence, where hatred as a motive against the victims’ group results in stricter judgments approaching the upper limit of punishment foreseen for the crime. Hatred against groups can even be read into a general qualifying circumstance during the application of law. In the Hungarian case-law an example of this is the so-called base motive as a qualifying circumstance (for example in the case of homicide or physical harm) which incorporates according to the jurisprudence criminal acts motivated by racist hatred. By comparison the message is more powerful if the legislator specifies the racist motive as a qualifying circumstance. This can be applied to any or just certain base crimes selected by the legislator. At last to make the state’s denouncement of the crime even more symbolic, the legislators can codify a sui generis hate crime provision.
Concerning codification techniques, an additional important question is whether the law lists the protected groups exhaustively or whether the list of protected characteristics can be extended. An additional question is whether hate crime provisions offer a protection only to minority groups (whenever I use the word minority, I use it in reference to power, and not in a numerical sense) or in certain cases, to victims belonging to the majority, too. Once these issues have been clarified, we have to find the answer to the question, whether hostility needs to be proven to assess the criminal responsibility or whether it was sufficient for a hate crime provision to be invoked that the victim was selected because he or she belonged to a particular group.
As this schematic and far from exhaustive enumeration of the comparative aspects shows, legal analysis itself is rather challenging and the designation of the criteria for the comparative analysis itself necessitates a thorough preliminary research. But even so, we only unveiled a small segment of the truth. Fact patterns do not exist in a vacuum, and their application in practice largely depends on questions which legal family the given country belongs to; what kind of procedural rules apply; whether the state follows the model of legality or that of opportunity, whether the prosecutor has a legal duty to represent the charges or whether he or she can decide on the basis of available evidence whether it is worth prosecuting the case; whether victims have the right to represent the charges; whether restorative justice is available; and so on. In addition to knowing the legal context it is also important to take into consideration the countries’ social structure and sociological characteristics. The legislator sends a message to society by defining the means these criminal acts – dangerous to the entire society – will be punished by. The social climate can influence the application of the existing laws.
But even if we are able to clarify all these questions, the devil lies in the details, i.e. in the application of the laws in actual cases, whether the relevant criminal provision is used or not, and if it is, than how. In some EU Member States, e.g. in Germany and Great Britain high-quality practice-oriented analyses were made. These countries’ practice – regardless of Brexit – will be definitely reviewed. Data in some other Member States however are insufficient, there is little academic literature or literature is only available in the national language of the given country. As the winner of the Lendület II call, I agreed to apply after the completion of the research carried out under the Lendület program for a European Research Council (ERC) grant in the “Consolidator” or “Advanced” category, or any other comparable international grants. The comparison of the case law will be the subject of such a future international research team.
Simultaneously you will conduct extensive research during which you are going to explore the difficulties encountered in the current Hungarian system of law enforcement, and you will formulate suggestions to the national legislators. What do you think are the most important legislative deficiencies regarding hate crimes?
The research has just begun, so I can only mention some of my hypotheses. First if all, let me stress that the small number of cases appearing in crime statistics – and in Hungary the number of cases the authorities actually become aware of are shockingly small – can never be interpreted as a proof that there are hardly any hate crimes in the given country. Low numbers in crime statistics only evidence the magnitude of latency. This is rather counter-intuitive and politically it is hard to be communicated, but researchers, human rights activists and the victim groups themselves always welcome the increasing numbers.
The low number of cases can be explained by the protected groups’ nearly non-existing power of advocacy, the lack of publicly maintained victim support services; the mistrust directed towards the authorities; the fear of revictimization or secondary victimization; the dread of the deportation; the intimate nature of the sexuality; the vulnerable situation of the people with disabilities; or the fact that even the victim him- or herself does not consider the act to be a criminal offence. From the viewpoint of the justice system, performance indicators can prevent the authorities from bringing charges for hate crimes, in case there are no clear pieces of evidence for the hate motive. Institutional discrimination can also be a significant explanatory factor. In addition to the prejudices of the side of the authorities, the low numbers can also be explained by the nature of criminal law, more specifically by the requirement of criminal procedure that guilt of the person accused has to be proven beyond doubt. Therefore the judges play safe, meaning that they will not acknowledge the existence of the hate motive, without any written or pronounced words, sentences or phrases which may indicate it. This is an easy or lazy type of the application of the law, which can lead to incorrect conclusions. Instead of focusing exclusively on the words, the legal – including judicial – assessment should be contextual When considering the context, judges could also turn to what the academic literature calls, bias indicators, such as the place, the time or the way of perpetration. All this is true vice versa: the pronounced words – even if they seem to be expressing hater – do not prove without doubt that the crime in question was a hate crime. Having regard to the context incorporates also the assessment of sociological aspects, i.e. the examination of existing prejudices, tolerance, or solidarity prevalent in the given society.
What is the time span of the research and in what form do you plan to disseminate your research results?
Lendület supports the research for a five-year-period. We count in academic years so the research started on September 1, 2018 and will end on August 31, 2023. Research results will be summed up in a comprehensive volume and will be also published in leading English and Hungarian language academic journals, furthermore on our own blog (now in preparation), at the blog of HAS Centre for Social Sciences Institute for Legal Studies, as well as at the website of the Foresee Research Group. In addition to academic publications we will take part in the domestic social discourse mostly via publications and we are preparing a teaching guide designed for university education at the faculties of law and social sciences.
Do you plan to organize any conferences or professional events?
At the end of the second academic year we would like to organize a conference at Budapest-based Corvinus University about the obligations and duties states assume under international law with particular regard to the case law of the European Court of Human Rights. At the end of the third academic year we will organize another conference at ELTE, Faculty of Social Sciences, and the conference will focus on the methodology and the sociological context of the research. At the end of the fourth year we will have a discussion on our results at ELTE, Faculty of Law, and in the fifth year the manuscript of the volume published as a result of the research will be discussed at the HAS.
In addition to the events organized by us we will participate at several conferences. I would like to stress the importance of the annual meetings of the European Society of Criminology, where we are going to be present during the entire research period. At the initial phase of the research we are looking forward to the suggestions of our foreign colleagues to specify the research plan, whereas from the second to the fourth year we will present our partial conclusions. In the final year we will introduce our upcoming monograph.
The research results will also be used in education. This is not unprecedented. On the one hand, I have already organized and held trainings for judges and prosecutors on this topic. As a Council of Europe HELP (Human Rights Education for Legal Professionals) focal point I opted for hate crimes as the theme of first course that I co-organized with Zsanett Tóth from the General Prosecutor’s Office. In the light of our research results the respective parts of the training materials on the Hungarian jurisprudence could be updated in 2023. On the other hand, in the criminology master and doctorate programs hate crime is a thoroughly discussed topic, therefore our results will be integrated into the courses offered at the Faculty.