The international normative framework on hate crime reporting, recording and data collection: progress, gaps and opportunities
As illustrated by the timeline in the previous section, ‘racist and xenophobic’ violence, and the importance of recording and countering the problem was recognised as early as 1965, the adoption of the term ‘hate crime’, which welcomes other core characteristics into specific protections and obligations, was adopted much later by the international community. There has been an incremental development of an increasingly comprehensive – yet mainly non-legally binding – framework of norms, standards, guidelines and activities on hate crime reporting, recording and data collection in Europe and beyond. Gradually, a better awareness of the problem and closer conceptual and practical alignment across the major international organisations and agencies (IGOs) active in the area have led to practical actions and outputs, internationally applicable guidelines and training programmes, and national capacity building. However, progress is uneven and incomplete and the role of civil society organisations in making hate crime visible through recording and data collection is under-recognised. This section highlights the key events in this journey and identifies some remaining gaps to be addressed.
Hate crime recording and reporting: States’ obligations
With its groundbreaking General Policy Recommendation No. 1 (GPR), spelling out what kind of data should be recorded, collected and published on racist crime, the European Commission Against Racism and Intolerance (ECRI) spearheaded a practical approach. GPR No. 4 on the need for victimization surveys quickly followed, and in 2002, ECRI started its first cycle of country visits to monitor states’ progress against these agreed standards.
The Organisation for Security and Cooperation in Europe (OSCE) wasn’t far behind. In 2004, the OSCE passed its first Ministerial Council Decision mentioning hate crime, followed by a series of three MC Decisions committing OSCE Participating States to ‘collect and maintain reliable statistics and information on hate crime’.
In 2005, the OSCE’s Office for Democratic Institutions and Human Rights (ODIHR) started to deliver on its mandate to report on and monitor hate crimes across the region, publishing its first annual report. The landmark Ministerial Council Decision 9/09, brought together commitments to record and gather statistics on hate crime across the criminal justice process, and gave ODIHR a comprehensive mandate for reporting, guiding and capacity-building on hate crime recording and data collection, victim support, legislation, and other areas. The Decision also ‘acknowledged’ that ‘hate crimes’ are ‘criminal offences committed with a bias motive’. This broad, yet boundaried, ‘definition’ was immensely influential in setting the parameters for many CSOs’ and public authorities’ hate crime recording and data collection concepts and methods. For many years, it was the only clear description of the type of incidents that should be recorded as ‘hate crimes’.
Critical judgments from the European Court of Human Rights (ECHR) dove-tailed and complemented ECRI and ODIHR’s work, placing an essential focus on the specific steps to be taken for data and information to actually be recorded, particularly focusing on the obligation to implement an investigative practice that ‘unmasks’ bias motives. Case law developed and placed the same obligation on crimes motivated by racism and xenophobia, homophobia, religion and, to some extent, disability. From the perspective of hate crime recording, ECRI’s GPR Number 11 partly ‘operationalised’ these judgments by recommending a perception-based approach to recording racist incidents to help ensure that the police have their mind on unmasking motive as early as possible. In the context of recording and data collection, adopting this technique has the potential to dramatically increase the quality – and quantity – of official data.
At the EU level, the 2008 Framework Decision (FD) obliged Member States to ensure that their national law could effectively punish crimes with a racist or xenophobic motive, and presented the need to gather evidence indicating the degree of implementation of these national laws. In turn the FD provided a focus for EU institutions to use evidence to both support and hold States accountable for its implementation. This was later made explicit in the European Commission’s report to the European Parliament and the Council on the implementation of the FD in which the Commission reported that it had, ‘asked all Member States to provide it with figures about the incidence and the criminal response to hate speech and hate crime.’
States have also agreed to regularly report specific information to various IGOs. National Points of Contact on Hate Crime are responsible for sharing information and data according to the OSCE-ODIHR definition through completing ODIHR’s online questionnaire, which is not in the public domain. Data is published annually on the OSCE-ODIHR Hate Crime Reporting Website. Under the Victim’s Directive, EU Member States are obliged to submit detailed available data to the European Commission ‘related to the application of national procedures on victims of crime’, including hate crime. FRA regularly requests information on States’ hate crime recording and data collection methodologies. Its most recent report presents a detailed comparative overview of States’ approaches. ECRI country visits rely on gathering and reviewing national data on hate crime in partnership with national authorities; although the precise methodology is not in the public domain. States must regularly report to the Committee on the Elimination of Racial Discrimination on its progress in implementing iCERD. This can include data and information on hate crime. The Universal Periodic Review (UPR), under the auspices of the UN Human Rights Council, allows states to provide information on what actions they have taken to fulfil their human rights obligations, including on understanding and addressing racist violence. States are responsible for implementing UPR recommendations included in their final outcome report.
In the meantime, successive reports by the OSCE, the EU Fundamental Rights Agency, ECRI, Concluding Observations of the Committee on the Elimination of Racial Discrimination, Universal Periodic Review Recommendations and the Human Rights Council’s Concluding Observations all identify the same perennial problem: data and information on the prevalence of hate crime and on criminal justice responses, including the number of investigations, prosecutions and sentences, are inadequate. There are several well-evidenced and key reasons for this, including significant differences in how ‘hate crime’ is conceptualised, legislated against and measured; under-reporting by victims and witnesses; and under-recording by the police., This stubborn trend is likely to be a key driver in the recent and very focused efforts by IGOs to develop guidelines, tools and in-country activities that help answer the common, practical questions posed by those tasked to improve reporting, recording and data collection at the national level:
- How should hate crime be defined and conceptualized for monitoring purposes?
- How can and should data and statistics be captured?
- How can police and prosecutors improve their ability to recognise and record hate crime?
- What technical and policy structures facilitate the achievement of these aims? to be put in place across the system?
From 2009, IGOs started to seriously focus on developing and disseminating knowledge as well as practical, capacity-building tools and activities with the aim of supporting the implementation of the hate crime concept and responses at the national level. This included guides on developing legal frameworks and on setting up hate crime monitoring and data collection systems. Ongoing annual, regional and national hate crime reporting, described above, was complemented by technical reports that get into the detail of exactly how Member States discharge their duty to record the nature and prevalence of hate crime and monitor responses to it. In-country capacity-building programmes and the development of a major network in the High Level Group on Racism and Xenophobia support an emerging ‘community of practice’ across practitioners and policy makers. A significant funding programme by the European Commission has led to inter-disciplinary partnerships with a strong focus on improving reporting, recording and data collection such as ODIHR’s recent project, Building a Comprehensive Criminal Justice Response to Hate Crime and The Facing All the Facts! Project.
Over time, differences within the international normative framework contributed to challenges in reporting, recording and monitoring at the national level. For example, while OSCE/ODIHR’s definition of hate crime provides a clear basis for including – and excluding – those incidents that should be recorded, monitored and responded to within the ‘hate crime framework’, there are inconsistencies within the international normative framework on how hate crime should be conceptualised and defined. There are particular difficulties in the area of incitement to hatred offences and discrimination, which many European countries criminalise and conceptualise as part of their ‘hate crime’ framework, although it falls outside of the OSCE/ODIHR ‘definition’. In a key and welcome development, clarity was provided by a paper issued under the auspices of the High Level Group on Racism and Xenophobia, on the anniversary of the 2008 Framework Decision, explicitly defining and separating the concepts of hate crime and hate speech.
There are related challenges in how IGOs request data and information from state authorities. For example, while ODIHR excludes information from its reporting that falls outside its definition, FRA reports on all information that is provided to them by public authorities. There are two problems with this approach. First, it is difficult to achieve the shared aim of internationally comparable data if IGOs’ own methods are not comparable. Second, these methodological differences at the international level are confusing for national authorities tasked with the burden of reporting to several different bodies in addition to meeting their national obligations to identify, record, collect and respond to incidents their own law recognises and the general public and affected communities should be informed about through published data.
The Victims’ Directive presents four major developments in the evolution of the international hate crime framework. First, it introduces the term ‘hate crime’ to EU law, and, although ‘hate crime’ is not explicitly defined, a comprehensive list of ‘protected characteristics’ is presented. Second, the Directive imposes requirements relating to assessing victims needs for support and safety on Member States, creating a direct point of connection between the police and criminal justice agencies and victims. Third, it explicitly obliges Member States to send the Commission available information on the extent to which the specified victims of hate crime are accessing these rights under the Directive. Fourth, it introduces the obligation on Member States to engage with civil society organisations that are active in supporting victims of crime, including hate crime, thus introducing a further basis for connection across what can often be public authority- civil society ‘divides’.
Having been the first IGO to introduce the effective obligation to recognise racist and xenophobic crime in national law through the International Convention on the Elimination of Racial Discrimination, the decision of the UN’s Commission on Crime Prevention and Criminal Justice to consider the ‘responsibility’ of states’ criminal justice systems in ‘preventing and countering crime motivated by intolerance or discrimination ‘of any kind’ in its upcoming conference signals another ‘broadening’ of the international focus on hate crime.
There is a long way to go. Police and especially prosecution and sentencing figures remain stubbornly low in many European countries. Data and information fall through the cracks at the earliest stages, leaving victims less safe and making it less likely that hate crime laws will be applied. For example, prosecution authorities and their ministries in many countries simply do not have the facility to flag hate crime cases or capture key information already identified by the police leaving essential information ‘stuck’ at the investigation stage.
A hate crime reporting and recording ‘system’?
To date, international obligations and IGO’s mandates – and therefore their reporting and capacity-building activities – have focused on supporting the gathering of statistics and information about the discrete stages of investigation, prosecution and sentencing of hate crime at the national level. Emerging engagement and technical work has led to a deeper appreciation of the importance of securing the better integration of recording and monitoring activity across law enforcement and criminal justice agencies and institutions, and on the importance of strategic agreements and inter-agency groups and guidelines to support the monitoring of cases as they progress through the criminal justice process. The guidelines and capacity building activities that have been developed suggest practical actions to rectify weaknesses in hate crime recording and data collection systems and set out models for interagency cooperation in the area. Overall, this complex web of norms, standards and activity has actual and potential use as the basis for effective, albeit uneven, connection and relationships between and among national authorities and intergovernmental organisations and agencies.
Civil society organisations: obligations and activities
States have acknowledged the importance of civil society organisations (CSOs) in supporting victims of hate crime, and improving reporting. ODIHR’s annual hate crime reporting has included data and information from civil society organisations since its inception and provides clear guidelines for CSOs to follow when submitting information. ECRI’s monitoring work extensively draws on civil society data as a source of information about the prevalence and impact of hate crime at the national level, however there is no information in the public domain about the methods that are employed. The UN Committee on the Elimination of Racial Discrimination has a system of considering ‘shadow reports’ by civil society organisations in its monitoring work. The EU Fundamental Rights Agency’s Fundamental Rights Platform provides a mechanism for connection and cooperation on a range of areas, including hate crime. FRA’s general and specific hate crime victimisation surveys are being used in CSO advocacy at the national level. The High Level Group on Racism and Xenophobia and other forms of Intolerance includes standing membership of EU level network CSOs and ad-hoc attendance by national CSOs.
There have been parallel efforts to develop the recording and monitoring capacity of CSOs. In 2008 ILGA published landmark guidelines on identifying and recording anti-LGBT+ hate crime, which led to in-country projects and reports. In 2009, ODIHR produced a set of guidelines for civil society on recognising and monitoring hate crime. In 2012 the Facing Facts! Project produced detailed guidelines across targeted communities and introduced a focus on creating opportunities to connect CSO and police data. In 2016 Facing Facts launched the first online learning programme for CSOs wanting to set up or improve existing hate crime recording systems.
Clearly, international norms and standards on hate crime recording and data collection do not oblige or specifically commit national authorities to take account of civil society data when assessing hate crime’s prevalence, its impact, or the quality of responses to it. Indeed, CSO hate crime data and information is usually described as ‘contributing to’, as providing essential ‘context’ for and ‘comparison’ with the picture presented by official statistics. As such the current framework is arguably skewed towards privileging official data over other sources.
Two recent developments at the international level show that civil society organisations that conduct high quality monitoring and victim support are in fact integral to any national efforts to improve understandings of and responses to hate crime. In the case of Identoba vs Georgia, the European Court of Human Rights referred to data from civil society organisations in coming to their judgment about whether the Georgian authorities were in breach of Article 3 of the Convention on Human Rights. In finding that the authorities were in breach, the Court argued that the Georgian police should have prepared much more effectively to prevent attacks against people taking place in a march to mark the International Day Against Homophobia in 2012 because CSOs had already provided clear evidence of the threat of violence that LGBT+ people faced. Specifically referencing reports by the national LGBT+ CSO, Identoba, ILGA-Europe and the Council of Europe’s Commissioner for Human Rights, the Court stated, ‘…given the history of public hostility towards the LGBT community in Georgia, the Court considers that the domestic authorities knew or ought to have known of the risks associated with any public event concerning that vulnerable community, and were consequently under an obligation to provide heightened State protection.’ This judgment shows that police data cannot be the sole source of information about what is happening at the local and national levels and that in the absence of, or in addition to, ‘official’ data, there is a duty to take account of other sources, including CSO data, that can and should also serve as a basis for police planning and action. As such it provides an important rationale for seeking more systematic connection between law enforcement and monitoring CSOs on hate crime recording, underpinned by the strategic aim of prevention and protection.
The importance of cooperation between public authorities and civil society on various aspects of hate crime work such as training, victim support and increasing reporting has been increasingly highlighted in recent European guidance and policy papers. For the first time, the importance of strategic cooperation between the police and CSOs on recording and data collection was articulated by an international agency in FRA’s 2018 report, including the following specific examples:
- Exchanging data and information
- Working together to uncover the ‘dark figure’ of hate crime
- Cooperating on the development of instructions, guidance or training on recording hate crime, including exchanging expertise to develop, refine and revise bias indicators
- Establishing working groups on how to improve the recording of hate crime
As explained by FRA, ‘Ultimately, investing in cooperating on hate crime recording and data collection can create a space to “get on the same page” through critical yet constructive dialogue, improve the comparability and compatibility of recording methodologies and, ultimately, lead to tangible improvements for victims and communities.’ However, only ten examples of this type of cooperation were included in the report. This indicates that while there is great potential, and need, for cooperation, national authorities in most countries do not yet view CSOs as key partners in this area.
 Following the adoption of the Convention on the Elimination of Racial Discrimination CERD
 European Commission against Racism and Intolerance (ECRI) (1996).
 European Commission against Racism and Intolerance (ECRI) and Council of Europe (2018, March).
 See Council of Europe Portal (2019).
 OSCE Ministerial Council Decision No. 12/04 (2004, 7 December) p. 4; OSCE Ministerial Council Decision No. 10/05 (2005) p. 3; OSCE Ministerial Council Decision No. 13/06 (2006) p. 3; OSCE Ministerial Council Decision No. 10/07 (2007) p. 3.
 OSCE Office for Democratic Institutions and Human Rights (OSCE/ODIHR) (2005, 15 September).
 OSCE Ministerial Council (2009) p. 1.
 see ECtHR (2007, 31 May). see also ECtHR (2007, 26 July).
 ECtHR (2015, 12 May).
 ECtHR (2010, 14 December).
 ECtHR (2012, 24 July). See also European Union Agency for Fundamental Rights (FRA) (2018d, December).
 Only 17 Member States’ data were presented in the Commission’s report. European Commission (2014).
 OSCE/ODIHR Tolerance and Non-Discrimination Department (2019b).
 European Parliament and The Council of the European Union (2012, 25 October) para. 64.
 See European Union Agency for Fundamental Rights (FRA) (2019a).
 See European Commission against Racism (ECRI) and Intolerance and Council of Europe (n.d.).
 Office of the High Commissioner (OHCHR) (2019).
 United Nations Human Rights Council (2019a).
 OSCE/ODIHR Tolerance and Non-Discrimination Department (2019a).
 See European Union Agency for Fundamental Rights (FRA) (2019a) and especially European Union Agency for Fundamental Rights (FRA) (2018b, June).
 Council of Europe Portal (2019).
 United Nations Human Rights Office of the Commissioner (2019). Also see OSCE/ODIHR Tolerance and Non-Discrimination Department (2019a) individual country pages, which include relevant points on hate crime data from CERD’s concluding observations.
 United Nations Human Rights Council (2019b). Also see OSCE/ODIHR Tolerance and Non-Discrimination Department (2019a) individual country pages, which include relevant points on hate crime data from CERD’s concluding observations.
 United Nations Human Rights Office of the Commissioner (2019). See also OSCE/ODIHR Tolerance and Non-Discrimination Department (2019a) individual country pages, which include relevant points on hate crime data from HRC Concluding Observations.
 See also Perry (2015).
 These issues will be explored in more detail elsewhere in Facing all the Facts final reports.
 For a review of the impact of barriers to successful implementation of the hate crime concept at the national level, including differences in how ‘hate crime’ is conceptualised, see: OSCE/ODIHR Tolerance and Non-Discrimination Department (2019a); Schweppe, Haynes and Walters (2018); Perry (2015); Whine (2016) pp.213-223; European Union Agency for Fundamental Rights (FRA) (2019a); and especially European Union Agency for Fundamental Rights (FRA) (2018b, June).
 OSCE Office for Democratic Institutions and Human Rights (OSCE/ODIHR) (2009a).
 OSCE Office for Democratic Institutions and Human Rights (OSCE/ODIHR) (2014a, 29 September).
 European Union Agency for Fundamental Rights (FRA) (2019c).
 see for example, the jointly developed hate crime recording and data collection programme delivered by FRA and ODIHR (see OSCE/ ODIHR 2018a, 29 August).
 European Commission (2019, 18 March).
 European Commission (n.d.).
 OSCE Office for Democratic Institutions and Human Rights (OSCE/ODIHR) (2019a).
 Schweppe, Haynes and Walters (2018) for further discussion of this issue and for a proposal of a European-wide legislative framework comprehensively addressing hate crime.
 ECRI also does not provide a specific definition for ‘hate crime’ in relation to its own work on reporting on racist violence, and more recently violence and hate speech against other minority groups.
 See also Whine (2019) pp. 6-7.
 United Nations Office on Drugs and Crime (2019, 17 May).
 For example, CSOs are presented as important in addressing under reporting of hate crime, “[To] take appropriate measures to encourage victims to report hate crimes, recognizing that under-reporting of hate crimes prevents States from devising efficient policies. In this regard, explore, as complementary measures, methods for facilitating the contribution of civil society to combat hate crimes” (OSCE Ministerial Council 2009 p. 2).
 OSCE/ODIHR Tolerance and Non-Discrimination Department (2019b).
 Council of Europe Portal (2019).
 United Nations Human Rights Council (2019a).
 European Union Agency for Fundamental Rights (FRA) (2019b).
 European Union Agency for Fundamental Rights (FRA) (2019d)
 European Commission (2019, 18 March).
 International Lesbian and Gay Association-Europe (ILGA) (2008).
 October 2009 OSCE-ODIHR Publishes ‘Preventing and responding to hate crimes: A resource guide for NGOs in the OSCE region’, including brief guidance on how to monitor hate crime (OSCE/ODIHR 2009b).
 CEJI (2012).
 Facing Facts Online (2019).
 ECtHR (2015, 12 May) para. 72.
 The ECHR has repeatedly recognised the importance of evidence of broader discrimination when considering potential hate crime cases. See European Union Agency for Fundamental Rights (FRA) (2018d, December).
 EU High Level Group on combating racism, xenophobia and other forms of intolerance (2017, November); see OSCE Ministerial Council (2009) p. 2.
 European Union Agency for Fundamental Rights (FRA) (2018b, June).