Racial Justice, Policies and Courts' Legal Reasoning in Europe (Ius Gentium: Comparative Perspectives on Law and Justice Book 60)

This Volume Looks At How Courts And The Police Handle Racial Discrimination In Europe. The Chapters Show That Beyond Legal Technique, Neither The Legislators Nor The Judges Escape From Their Own Emotions When Responding To Racial Discrimination. But, As The Authors Point Out, Emotions Are Not Always Negative. They Can Also Help In A Positive Way In Judicial Interpretation. The Study Profiles Five Countries: Germany, Uk, Estonia, Portugal And Spain. Each Of These Belong Both To The European Union And To The Council Of Europe. Coverage Examines The Responsibility Of The Public Powers, More Specifically Of The Legislative And Judicial Power, Both Of The Police And Of The Judiciary, In Persecuting Racist Behavior. In Addition, The Authors Also Consider The Increase In Racism In Groups Of Citizens. The Authors Argue That Racial Justice Is A Proactive Reinforcement Of Policies, Practices, Attitudes And Actions That Lead To Equal Access To Opportunities For All. After Reading This Book, Readers Will Gain A Better Understanding Of The Reasoning Of Legislators, Police And Judges When Dealing With Racial Discrimination In Europe Today. -- Back Cover. Part I. Theoretical And Legal Framework -- Human Dignity And Minority Protection. Some Reflections On A Theory Of Minority Rights / Rainer Arnold -- The Rational Loving Citizen: Towards A True Interculturality / Aránzazu Novales Alquézar -- Denial Or Justification Of Genocide As A Criminal Offence In European Law / María Elósegui -- Part Ii. Specific Thematic Cases Studies -- Argumentation Of The Court Of Strasbourg's Jurisprudence Regarding The Discrimination Against Roma / Cristina Hermida -- Gypsies, The Administration Of Justice, Automation And The Resolution Of Problems / Fernando Galindo -- Violent Urban Gangs. Main Perpetrators In Hate Crimes / D.d. Gil And A.f. Lopez -- Part Iii. Specific Case Studies Of Various Countries -- The State Of Racial Justice In Germany / Wolfram Bechtel -- Latest Developments In Combating Racism In The Uk / Michael Whine -- Could The Estonian Ban On Hate Speech [be] Interpreted In A More Efficient Way? / Sten Andreas Ehrlich -- An Experience Of Reasonable Accommodation: The Portuguese Constitutional Court Ruling N. 544/2014, Dated 15th July / Paulo Marrecas Ferreira -- Racism From The Perspective Of The Brazilian Courts Of Justice: A Critical Analysis / José Renato Gaziero Cella And Lahis Pasquali Kurtz. María Elósegui, Cristina Hermida, Editors. Includes Bibliographical References. Contents 6 Editors and Contributors 8 Introduction 10 Theoretical and Legal Framework 24 1 Human Dignity and Minority Protection. Some Reflections on a Theory of Minority Rights 25 Abstract 25 1.1 Human Dignity as the Keystone of the Protection of Rights 25 1.2 Dignity and Minority Rights 27 1.3 The Principle of Protection Efficiency and Minority Law 31 1.4 Protection Efficiency in Concept and Legal Implementation 32 1.5 Conclusions 35 References 36 2 The Rational Loving Citizen: Towards a True Interculturality 37 Abstract 37 2.1 Introduction 38 2.2 From Instrumental to Compassionate Reason 40 2.3 Emotional Obstacles for Inclusion of ‘The Other’ 41 2.3.1 Nussbaum and the Cognitive Theory of Emotion 41 2.3.2 Obstacles to Emotion: Fear, Envy, Shame and Disgust 45 2.3.2.1 Fear 45 2.3.2.2 Envy 47 2.3.2.3 Shame 49 2.3.2.4 Disgust 54 2.4 The Incorporation of Emotion Does not Turn Morality into Pernicious Relativism 56 2.5 Approaching a Conclusion: A Rational ‘Loving Citizen’ 57 2.5.1 ‘Loving Citizens’ and ‘Abstract Laws’ 57 2.5.2 The Constitution, Emotion and ‘Real People’ 60 2.5.3 Public Policies and Particularistic Love 63 2.5.4 Some Closing Observations 64 References 67 3 Denial or Justification of Genocide as a Criminal Offence in European Law 70 Abstract 70 3.1 Introduction 72 3.2 The Definition of Genocide in the United Nations Instruments and the Difference with Crimes Against Humanity 77 3.3 The Definition of Denialism as a Form of Hate Speech 78 3.4 The EU Regulation 82 3.5 The Regulation of the European Council. The Convention on Cybercrime Concerning the Criminalisation of Acts of a Racist and Xenophobic Nature Committed Through Computer Systems and Its Additional Protocol 85 3.6 Some Interpretation Problems of the Legislation of the European Council and of the EU 88 3.7 Proof of Racist Intent 90 3.8 The Requirement of Racist Intent in ECRI Recommendation No. 7 91 3.9 The Definition of Denial as a Form of Hate Speech in the ECRI Recommendation No. 15 93 3.10 The Criteria Laid Down by the ECHR. The Legitimate Debate of Ideas and Clearly Established Historical Events 97 3.11 The European Court of Human Rights, Freedom of Expression and Its Limits 99 3.12 Article 17 of the Convention and the Prohibition of the Abuse of Rights 100 3.13 Conclusion 106 References 107 Legislation and Recommendations of the UE and Council of Europe 109 Jurisprudence of the European Court of Human Rights 110 Jurisprudence of National Courts and National Legislation 111 Specific Thematic Cases Studies 112 4 Argumentation of the Court of Strasbourg’s Jurisprudence Regarding the Discrimination Against Roma 113 Abstract 113 4.1 Introduction 114 4.2 From Prejudices to Racial Discrimination 116 4.3 Racial Discrimination and Hate Crimes Against Roma 118 4.4 The Interpretation of Art. 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) 119 5 Gypsies, the Administration of Justice, Automation and the Resolution of Problems 134 Abstract 134 5.1 Introduction 135 5.2 Information and Indicators of Problems Between the Justice System and the Gypsy Community in Spain 137 5.2.1 Sentencing 137 5.2.2 Police Training Courses 137 5.2.3 Complaints Against the Justice System 138 5.2.4 Sentences from the European Court of Human Rights 139 5.2.5 The Growing Trend Toward Generalisation in the Justice System Due to ‘Efficient’ Reform Based on the Principles of ‘Good Governance’ 139 5.3 Proposals for Reform of the General Regulations on Equality 141 5.4 Autopoietic Studies 144 5.5 Conclusion 146 Acknowledgements 147 References 147 6 Violent Urban Gangs. Main Perpetrators in Hate Crimes 149 Abstract 149 6.1 Introduction 150 6.2 Violent Urban Gangs. Their Features 154 6.3 Polarization Indicators 155 6.4 Hate Crimes Black Numbers. Why Are These Crimes not Reported? 156 6.5 Violent Urban Groups: Description 157 6.5.1 Violent Urban Group: Skinhead 157 6.5.2 Neonazi Ballot in Spain 159 6.6 International View on the Concept of Hate 160 6.6.1 Increase in Neonazi Groups 160 6.6.2 S.H.A.R.P (Skinheads Against Racial Prejudice) 161 6.6.3 Redskins “Spirit from ‘84” 161 6.6.4 R.A.S.H (Red and Anarchist Skinhead) 162 6.6.5 Football Hooligans and Ultras 163 6.6.6 Use of Violence: A Strategy. Black Block 164 6.7 Hate-Related Behaviours Meant to Disrupt the Spanish Penal Code 164 6.7.1 Crimes About Threats to Groups (Art. 170 Cp) 165 6.7.2 Crimes Against Moral Integrity (Art. 173 Cp to 176 Cp) 165 6.7.3 Crimes on Finding Out and Revealing Secrets (Art 197 Cp) 166 6.7.4 Crimes on How to Provoke Hate, Violence and Discrimination (Art 510 Cp) 166 6.8 Conclusions 167 Bibliography 170 Specific Case Studies of Various Countries 172 7 The State of Racial Justice in Germany 173 Abstract 173 7.1 The Fundamental Right to Equality 174 7.2 Racial Justice in the German Justice System 179 7.3 Conclusion 182 8 Latest Developments in Combating Racism in the UK 183 Abstract 183 8.1 Introduction 183 8.2 Combating Racism and the Development of Legislation 185 8.3 Criminal Justice Developments 188 8.4 Conclusions 191 9 Could the Estonian Ban on Hate Speech Interpreted in a More Efficient Way? 193 Abstract 193 9.1 Introduction 193 9.2 The Progress of Estonian Hate Speech Regulation in the Light of ECRI Recommendations 195 9.3 Estonian Case Law on Incitement to Hatred 196 9.4 Hate Speech Legislation and International Obligations 199 9.5 Obligation of Coherent Interpretation 200 9.6 Avenues of Interpretation 201 9.7 Draft Act to Amend the Ban on Hate Speech 202 9.8 Conclusion 203 References 204 10 An Experience of Reasonable Accommodation. The Portuguese Constitutional Court Ruling N. 544/2014, Dated 15th July 206 Abstract 206 10.1 Foreword 206 10.2 The Terms of the Problem as They Have Been Equated by the First Instance and Appeal Courts 207 10.3 The Restrictive Interpretation that These Courts Gave to the Notion of Flexible Work in the Portuguese Law 208 10.4 The Presence Inside the Portuguese Legal Order of the International Public Law (PIL) Relating to Religious Freedom 209 10.5 The Inviolability of the Right to Religious Freedom 209 10.6 The Multiple Dimensions of This Right 210 10.7 The Subsidiarity of the European Control and of the European Convention of Human Rights (ECHR) Safeguards in Relation with the Constitutional Protection of This Right 211 10.8 The Accommodation of the Different Positions of the Subjects of a Relation in Which the Religious Freedom Question Arises 212 10.9 A Wider Protection (Than the Protection Afforded by PIL) Conferred in the Portuguese Constitution (CRP) 213 10.10 The Principle of Non-discrimination as a General Principle of Law Transversal to Every Relationship Grounded in a Fundamental Right (Here, the Religious Freedom), Enshrined in the CRP 214 10.11 The Necessary Weighting of the Rights in Presence, as the Right to Religious Freedom Is not an Absolute Right 214 10.12 The Relationship Between Minority Freedom and Majority Religion and the Religious Pluralism 215 10.13 The Notion of Flexible Work 215 10.14 Concrete and Effective Rights Which Are not Theoretical or Illusory 216 10.15 The Accommodation of Religious Freedom in a Plural Society 216 10.16 The Application of the Proportionality Principle 217 10.17 An Interpretation of the Law on Religious Freedom According to the CRP 217 Bibliography 218 Jurisprudence 218 Important Links 219 11 Racism from the Perspective of the Brazilian Courts of Justice: A Critical Analysis 220 Abstract 220 11.1 Introduction 221 11.2 Discriminatory Speech and Freedom of Expression 222 11.3 The Case Selected for Study 223 11.4 Method of Analysis 228 11.5 Synthesis of the Case Study 229 11.6 Particularities of Online Hate Speech 234 11.7 Conclusion 235 References 236 Front Matter....Pages i-xxii Front Matter....Pages 1-1 Human Dignity and Minority Protection. Some Reflections on a Theory of Minority Rights....Pages 3-14 The Rational Loving Citizen: Towards a True Interculturality....Pages 15-47 Denial or Justification of Genocide as a Criminal Offence in European Law....Pages 49-90 Front Matter....Pages 91-91 Argumentation of the Court of Strasbourg’s Jurisprudence Regarding the Discrimination Against Roma....Pages 93-113 Gypsies, the Administration of Justice, Automation and the Resolution of Problems....Pages 115-129 Violent Urban Gangs. Main Perpetrators in Hate Crimes....Pages 131-153 Front Matter....Pages 155-155 The State of Racial Justice in Germany....Pages 157-166 Latest Developments in Combating Racism in the UK....Pages 167-176 Could the Estonian Ban on Hate Speech Interpreted in a More Efficient Way?....Pages 177-189 An Experience of Reasonable Accommodation. The Portuguese Constitutional Court Ruling N. 544/2014, Dated 15th July....Pages 191-204 Racism from the Perspective of the Brazilian Courts of Justice: A Critical Analysis....Pages 205-222