An action must have two elements for it to be considered a hate crime – it must be an offense recognized by law and it must have a biased motive. Hate crimes can be considered to be an extreme form of discrimination.
The offense
The first element of a hate crime is the offense. A hate crime is not an offense in itself, and therefore, a base offense has to have been committed against a person or a group of persons. In general, the Slovenian Criminal Code does not contain a definition of serious crimes committed with a hate motive (hate crimes). The offence may take various forms, but it must be defined by law as a criminal offense, an administrative offense or some other form of misdemeanour. Article 49 of the Slovenian Criminal Code claims that if the inclination to commit the offense was the victim's national, racial, religious or ethnic origin, sex, colour, descent, property, education, social status, political or other beliefs, disability, sexual orientation or any other personal circumstance, this shall be taken into account as an aggravating circumstance.
example The base offense can take the form of severe threats, physical attacks, rape, murder, property damage, etc.
Read more about different forms of liability.
The motive
When it has been established that an offense was committed, the motive must be considered. Hate crime is motivated by bias towards certain groups in society. This is what distinguishes hate crimes from other offenses. When a hate crime is committed, the perpetrator has chosen the victim because of certain characteristics that the victim possesses. The characteristic might be language, religion, nationality, race, gender, sexual orientation, or any other similar factors.
important While most victims of hate crimes belong to minority groups, please note that members of majority groups can also become victims of hate crimes.
The target may be one or more people, or property associated with a group that shares a particular characteristic.
example If an arson attack has been made on a gay club, the State should investigate whether the incident could have been a hate crime. However, the incident would only be considered to be a hate crime if the arsonist set fire to the club because of a bias that they had against the LGBT+ community or particular members of the LGBT+ community.
Read more about the possible victims and grounds for hate crimes.
Obligations of the State
Even before a hate crime has been committed, the State has an obligation to protect individuals from such offenses and to ensure general order and safety in society.
If a hate crime has been committed, the state authorities should carry out an effective investigation to establish the cause and to identify those who are responsible. The State authorities have additional obligations in cases where the crime could be considered a hate crime they must take all reasonable steps to unmask the motive and to establish whether bias may have played a role in the events.
Because hate crimes can affect not only victims, but also the whole community that shares the specific characteristic, state authorities must take measures to maintain the confidence of the affected group within the capacity of the authorities to protect them from hate crimes.
What human rights violation may there be?
Hate crimes can have an impact on several different human rights for both the victims and the perpetrators.
The State must enforce victims’ human rights. This includes the obligation to adequately investigate hate crimes, as well as providing help for victims of hate crimes. If the police fail to adequately respond to a hate crime situation, it may result in a violation of the right to life or the prohibition of inhumane or degrading treatment.
example If a victim has been killed, the State has an obligation to carry out an effective criminal investigation to establish the cause and potential biased motive behind the death and, if possible, identify those who are responsible.
If the state institutions investigating the hate crime, or the courts, do not follow procedures prescribed in the law, or the court proceedings take too long, this could violate the right to a fair trial.
The perpetrator’s human rights are also mostly associated with the right to a fair trial.
example A person cannot be pronounced guilty of the hate crime of which the person is accused before the final judgement has entered into force. This is called the “presumption of innocence”.
Hate crimes can be considered to be the most extreme form of discrimination. The state’s failure to react to a hate crime situation with proper vigour may result in a violation of the prohibition of discrimination in conjunction with other human rights.