Piecing together hate crime cases: ODIHR’s programme to assist prosecutors

Prosecutors need awareness, knowledge and skills to convince courts that certain crimes are motivated by prejudice and bias. Since they play a central role in identifying and countering hate crimes, they must have access to the right tools to accomplish this task.

Through publications and a training programme, the OSCE Office for Democratic Institutions and Human Rights (ODIHR) is working to assist prosecutors to recognize hate crimes and successfully prosecute hate crime cases.

A comprehensive approach involving different actors – including the judiciary – is needed to successfully counter hate crimes. Prosecutors are at the centre of these efforts, seeking to convict perpetrators while upholding the interests of justice and safeguarding the rights of victims. Their work complements the prevention and policing roles played by other government agencies and civil society.

Having the tools to identify potential hate crimes at an early stage allows prosecutors to put compelling cases before courts when seeking hate crime convictions. Building on a series of workshops and broad consultations with prosecutors across the region, ODIHR has prepared a new training programme and manual to help them do this.

Prosecutors and Hate Crimes Training (PAHCT) aims to expand and hone prosecutors’ abilities to identify hate crimes and bring hate crimes cases to trial, and to gain convictions and ensure appropriate sentencing. The PAHCT training manual helps increase the institutional capacity of criminal justice systems to deal with these crimes.

Establishing bias motivation

The offenders’ motivation, based in bias or prejudice against the victims’ real or perceived identities, separates hate crimes from other criminal acts. The successful prosecution of these crimes depends on successfully proving this motivation.

As such, investigations often must go beyond the underlying criminal act to locate evidence relevant to the suspect’s bias, which may not have been obvious before or during the crime.

“There are all kinds of bias indicators that investigators and prosecutors can look for: Has the injured party recently moved to the area in which the incident took place? Does the incident appear timed to coincide with any holiday or festival that is significant to a minority religious group?” said Elizabeth Howe, General Counsel to the International Association of Prosecutors, which co-created Prosecuting Hate Crimes: A Practical Guide with ODIHR.

“Only by asking these kinds of questions can a full picture start to emerge: Prosecutions can then ensue if evidence is available to substantiate these indicators.”

Working with victims

As differences between the number of hate incidents reported to ODIHR by civil society and those reported by governments indicate, hate crimes are seriously under-reported by victims. Victims can be reluctant to turn to the police for a number of reasons. Providing victims and their communities with appropriate support can facilitate their co-operation in what may otherwise be an uncomfortable experience. Victims can sometimes face secondary victimization as a result of the poor response of the authorities.

As guardians of justice and fair trial principles, prosecutors must always consider the interests of the victims. Prosecutors depend on victims to remain engaged in the criminal justice process and help ensure convictions, and are also bound by a duty of care towards them.

The victim’s perception of bias is a crucial indicator that a hate crime might have taken place, and should encourage prosecutors to work with investigators and seek evidence that can be brought to the court’s attention. Of course, the victim’s perception alone is not usually enough to convince a court of the offender’s bias motivation. When there is not enough evidence, prosecutors may decide not to charge the case as hate crime. However, communication with victims concerning how the case is being handled is essential in sensitively responding to their needs and keeping them engaged in the process.

Achieving a flexible approach

Hate crime laws provide for enhanced sentences where it has been proved that a crime was motivated by bias. Achieving an enhanced sentence is one of the main goals of a hate crime prosecution.

The principle of recognizing bias in hate crime prosecutions is essential to ensuring that all communities enjoy the protection of justice and the rule of law. There are different types of hate crime laws and different groups under their protection. The required standard for proving a bias motive may also differ from country to country, as do the strategies applied by prosecutors.

The PAHCT syllabus reflects and caters to these differences. “ODIHR’s hate crimes training can be easily incorporated into already-existing training schemes, and we can customize the curriculum to suit the legal framework of any country wishing to use it” said ODIHR Hate Crime Officer Aleš Hanek. “It’s very much a collaborative effort.”

“PAHCT is all about pooling resources and building on locally specific experiences. There would be no point in taking a prescriptive, ‘one-size-fits-all’ approach to such a multi-faceted issue.”

One of the main messages of PAHCT is that close co-operation and trust between the authorities – most notably law enforcement and prosecution – and with vulnerable communities are essential to preventing hate crimes and convicting those who commit them.