The atrocities of the 2[nd] World War confronted humanity with an apparently insuperable problem, that of "protecting each individual and protecting at the same time the rights of all individuals".[1] The exercise of fundamental human rights has been conditioned, since the beginning, by non-discrimination. Firstly stated at a declaratory level in Article 7 of the Universal Declaration of Human Rights of 1948, according to which: "All human beings are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination", the principle of non-discrimination was subsequently consecrated by a series of international conventions of sectorial character, regarding certain rights or categories of persons.
The International Labor Organization was the first to pass from the declaratory level to the obligatory level, through the conventions elaborated at its initiative, imposing the obligation on the states parties to grant adequate protection against any discrimination tending to harm trade union freedom in matters of employment[2] and to ensure equal remuneration for men and women workers, for work of equal value, without discrimination based on sex.[3] Under the aegis of the same organization, there was adopted the convention by which the states parties undertook to suppress forced or compulsory labor and not to make use of any form of such labor as a means of racial, social, national or religious discrimination.[4]
The Paris Convention of 1964 on the fight against discrimination in education[5] defines discrimination as being any distinction, exclusion, limitation or preference which, being based on race, colour, sex, language, religion, political or other opinion, national or social origin, economic condition or birth, has the purpose or effect of nullifying or impairing equality of treatment in education by depriving any person or group of persons of access to education of any type or at any level, of limiting any person or group of persons to education of an inferior standard, the establishment or maintenance of separate educational systems or institutions for persons or groups or inflicting on any person or group of persons conditions which are incompatible with the dignity of man.
The following situations shall not be deemed to constitute discrimination, within the meaning of the above mentioned Convention: the establishment or maintenance of separate educational systems or institutions for pupils of the two sexes if these systems or institutions offer equivalent access to education; provide a teaching staff with qualifications of the same standard as well as school premises and equipment of the same quality; provide the opportunity to take the same or equivalent courses of study, the establishment or maintenance - for religious or linguistic reasons - of separate educational systems or institutions offering an education which is in keeping with the wishes of the pupil's parents or legal guardians; if participation in such systems or attendance at such institutions is optional; if the education provided conforms to such standards as may be laid down or approved by the competent authorities, in particular for education of the same level as well as the establishment or maintenance of private educational institutions. If the object of the institutions is not to secure the exclusion of any group but to provide educational facilities in addition to those provided by the public authorities; if the institutions are conducted in accordance with that object and if the education provided conforms with such standards as may be laid down or approved by the competent authorities, in particular for education of the same level.
The International Pact on Civil and Political Rights,[6] elaborated under the aegis of the United Nations Organization in 1966 (it came into force on March 23rd 1976) proclaims the equality of all people before the law, the latter being entitled, without discrimination, to equal protection by the law. To this regard, the law must prohibit any discrimination and guarantee to all people equal and efficient protection against any discrimination, in particular related to race, color, sex, language, religion, political or other opinion, national or social origin, economic condition, birth or based on any other circumstance.
Still under the aegis of the United Nations Organization the International Convention on the Elimination of All Forms of Racial Discrimination[7] was elaborated by which the states parties undertake to incriminate in their national legislation any dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another color or ethnic origin, as well as any assistance to racist activities, including
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the financing thereof. The States parties also undertake to declare illegal and prohibit organizations as well as organized and all other propaganda activities which promote and incite racial discrimination and shall recognize participation in such organizations or activities as an offence punishable by law. By racial discrimination one designates any distinction, exclusion, restriction or preference based on race, color, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.
As a pathological form of discrimination, apartheid was declared a crime against humanity,[8] international criminal responsibility shall apply, irrespective of the motive involved, to individuals, members of organizations and institutions and representatives of the State, whether residing in the territory of the State in which the acts are perpetrated or in some other State, whenever they commit, participate in, directly incite or conspire in the commission of these acts or directly abet, encourage or cooperate in the commission of the crime of apartheid.
Last, but not least, we need to remind the Convention for the Protection of Human Rights and Fundamental Freedoms,[9] adopted by the Council of Europe in 1950, which establishes as a principle the exercise of rights and freedoms, without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status (article 14).
If, initially the European Court stated in the sense that the principle of non-discrimination has no autonomous existence, being conditioned by the invoking of some breach of one of the rights or freedoms guaranteed by the Convention, it later on went back on this practice, affirming the applicability of the former in an independent manner, whenever the Convention leaves the states parties a certain discretionary power to restrict certain rights or freedoms or choose the means to achieve them , if this possibility is used in a non-discriminating way.[10]
Romania's Constitution states the equality of rights and the equality before the law, without any discrimination on account of race, nationality, ethnic origin, language, religion, sex, opinion, political adherence, economic condition or social origin (article 4, paragraph 2 in the Constitution). In accordance with the above mentioned constitutional dispositions, Romania has adopted laws on the prevention and fight against any discrimination,[11] so that the commission of an offence on such grounds can represent an increased social danger. According to that regulation, discrimination stands for any distinction, exclusion, restriction, preference based on race, nationality, ethnic origin, language, religion, social category, beliefs, gender, sexual orientation, age, disability, non-contagious chronic disease, HIV infection or affiliation to a disadvantaged social class, having the purpose or effect of limiting or impairing the acknowledgement, enjoyment or equal exercise of human rights and freedoms or of rights stipulated by the law, in the public, economic, social, cultural field or any other field of public life (article 2 of Government Ordinance no. 137/2000, amended by Government Ordinance no. 77/2003).
The fulfillment of the obligations undertook according to international conventions also implied the adoption of some measures destined to punish discrimination under criminal law. By Law no. 278/2006,[12] the dispositions of the Criminal Code have been amended by introducing a new aggravating circumstance, redefining the contents of the offense related to the abuse of office by limiting certain rights and the nationalist-chauvinistic propaganda, which will be discussed in what follows.
The introduction of a new aggravating circumstance (Article 75, letter c[1] Criminal Code) consisting in the commission of the offense on grounds of race, nationality, ethnic origin, religion, gender, sexual orientation, opinion, political affiliation, beliefs, economic condition, age, disability, non-contagious chronic disease or HIV infection is destined to emphasize the aggravating nature of the offense motivated by such discrimination.
Case law refers to few such offenses, but this is no reason for not aggravating criminal liability for an offense based on such ground. In order to take into account such aggravating circumstance, it is not enough for the victim to be subject to the conditions enumerated in Article 75 paragraph 1 letter c1, but it is also necessary to establish the existence of a causal relation between the offense committed and the status or state of the victim. The reason, as circumstantial element of the subjective side of the offense is the one that determines the aggravating nature of the latter. The reason or the incentive of the offense designates those emotional and rational factors which account for a certain conduct and permit its manifestation.[13]
The usage, by the legislator, of the expression "the
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commission of the offense on grounds of (highlight by the author) imposes such interpretation, the adverbial phrase "on grounds of" signifying motive, reason, cause (Explanatory Dictionary of Romanian).
The reason, as occasional element of the subjective side of the offense, can only be associated with direct intent. Without being mistaken for intention, the reason is the initial impulse of the action or omission, determining their morality.[14] Consequently, the above-mentioned aggravating circumstance can only be taken into account in case of an offense committed with direct intention. As regards the other forms of guilt, oblique intent or culpability, although the reason for the action or omission does exist (the acts of an individual, except for the unconscious ones, being motivated), it has no relevance under criminal law.
Discrimination, as a reason for the criminal act, is obviously degrading, but there will not be applied the aggravating circumstance stipulated by Article 75 letter d Criminal Code unless the degrading reason is other than discrimination (e.g. revenge, acquiring material benefits etc.).
Law No. 278/2006 redefines the contents of the offence of abuse of office by limiting certain rights, extending the reasons for which such a limitation turns into an offense - beyond the cases involving discrimination based on nationality, race, sex or religion. Thus, the contents of the offense stipulated by Article 247 Criminal Code are envisaged as to agree with the legal regulations concerning the prevention and punishment of all forms of discrimination contained by Government Ordinance No. 77/2003.[15 ]A public servant who, acting under color of his office or employment, makes a distinction, exclusion, restriction, preference on grounds of race, nationality, ethnic origin, language, social category, beliefs, gender, sexual orientation, age, disability, non-contagious chronic disease, HIV infection or affiliation to a disadvantaged social class, having the purpose or effect of limiting or impairing the acknowledgement, enjoyment or equal exercise of human rights and freedoms or of rights stipulated by the law, in the public, economic, social, cultural field or any other field of public life, commits the offense of abuse of office by limiting certain rights. The above mentioned ordinance makes a violation out of any active or passive form of discrimination, if the act is not punishable under criminal law (article 2 paragraphs 2-4 in the Government Ordinance no. 137/2000 amended by Government Ordinance no. 7/2003).
Under these circumstances, there must be distinction between the violations stipulated in the above mentioned ordinance and the offense of abuse of office by limiting certain rights, especially since the violations stated in Articles 10-15 of the above mentioned regulation are committed precisely by the limitation of rights such as access to the public service, access to education, the right to work, to free movement, the right to dignity, etc. In all cases, the Act constitutes a violation unless it is punishable under criminal law.
From the perspective of the offender, the offense can only be committed by a circumscribed subject, namely a public servant, while a violation can be committed by any person. If the act is committed by any other employee, the maximum length of punishment is reduced by one third (article 258 Criminal Code). As regards the subjective side of the offense, both the offense and the violation are committed with direct intent, because only this form of guilt implies the existence of an incentive, a reason for the discriminating Act.
In order for the Act to be an offense or a violation, the reason of discrimination must be based on race, nationality, ethnic origin, language, religion, sexual orientation, opinion or political affiliation, beliefs, economic condition, social origin, age, disability, non-contagious chronic disease or HIV infection. Under this aspect, the reasons for discrimination are identical, both in the case of the offense and in that of the violation.
As concerns the objective side, the offense can be committed both by action and omission, because both modalities can lead to the limitation of enjoyment or exercise of certain rights or to the creation of a position of inferiority. The limitation of certain rights can be done by restricting those rights, impairing their settlement under the law or their enjoyment or use in equal conditions by all citizens, thus generating a position of inferiority based on the grounds contained in the incriminating text.
The violations stipulated by Articles 10-15 in the Government Regulation No. 137/2000 are usually committed by preventing access to the mentioned public services, which, in our opinion, implies an active manifestation, even if only on a verbal level. The rights whose limitation is incriminated are the fundamental rights and freedoms proclaimed by the Romanian Constitution, as well as any other rights stipulated under the law, in the public, social, economic, cultural field or any other field of public life. Although the attempt is possible in case of an act committed by omission, it is not punished. The
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punishing conditions have remained unchanged, the offense carrying a sentence of imprisonment from 6 months to 5 years.
By reshaping Article 317 Criminal Code, Law No. 278/2006 replaces the offense of nationalist-chauvinistic propaganda[16] by a new offense called "incitement to discrimination". The new text of Article 317 Criminal Code still denunciates the nationalist-chauvinistic propaganda and, furthermore, it has given a broader sense to its incrimination. The general legal object of the offense of incitement to discrimination remains the safeguard of the relations concerning social cohabitation, while the special legal object has been extended as to protect the relations of social cohabitation against any form of discrimination, not only against that based on race or nationality.
Thus, criminal legislation has been harmonized not only with the domestic regulations concerning the prevention and fight against any discrimination - contained by Government Ordinance no. 137/2000 as amended - but also with international conventions ratified by Romania, regarding the prevention and fight against the discrimination forms stated in the incriminating legal act.
The offense has no material object, the incitement activity implying the persuasion of other persons and gaining supporters in order to promote discrimination among citizens on the grounds stated by the incriminating legal act. The instruments by which the persuasion activity is carried out (press, manifestos, audio-video devices) are not the object of the offense of incitement to discrimination, but means by which this action is performed and represent the corpora delicti, serving to prove the offense according to article 95 Code of Criminal Procedure.
As regards the objective side of the offense, it is obvious that, by calling it "incitement to discrimination", the legislator did not refer to the incitement to commit abuse of office by limiting certain rights (Article 247 Criminal Code), by which the law incriminates the discriminating conduct of public servants and other employees, on identical grounds, but it referred to collective incitement, that is the apology of discrimination.
Incitement is deemed to be collective when the abettor addresses him/herself directly to the public, and it can be either concentrated, when it addresses to a relatively homogenous group, localized in a certain place, or spread out, when it addresses to the public in general.[17] From this perspective, propaganda is an action of spreading ideas or some conception, with an aim to persuading and gaining supporters (Explanatory Dictionary of Romanian).
Incitement to discrimination is nothing but propaganda in favor of discrimination based on race, nationality, ethnic origin, language, religion, gender, sexual orientation, opinion, political affiliation, beliefs, economic condition, social origin, age, disability, non-contagious chronic disease or HIV infection.
If public incitement to commit acts that represent offenses is the apology of offenses and is incriminated as such by the dispositions of article 324 Criminal Code, the apology of discrimination on the above mentioned grounds is also incriminated as a dangerous act for the public order, jeopardizing the normal course of social cohabitation relations. The objective side of the offense can only consist of an action, since, speaking of facts, the commission of the offense by omission is excluded.
The subjective side of the offense implies the commission of the act only with an intention to persuade, determine other persons, or this can only be done with direct intent.
The direct intent is associated with the reason of the offence: hatred on grounds of (highlight by the author) race, nationality, ethnic origin, language, religion, gender, sexual orientation, opinion, political affiliation, beliefs, economic condition, social origin, age, disability and non-contagious chronic disease or HIV/AIDS infection. If there is any other reason of discrimination, the act is no longer considered an offense, but a violation, according to Government Ordinance no. 137/2000. The offender can be any person and the criminal participation is possible under all forms (co-authors, abettors, accomplices).
The co-authors are those who carry out un-mediated actions of determining the public to promote discrimination, the abettors are those who determine other persons to publicly promote actions destined to determine the promotion of discrimination (mediated collective incitement), and the accomplices can be those persons who provide the authors of the offense with the means necessary to promote their actions of persuading the public to practice discrimination.
The offense can also be committed by a legal person, when the latter promotes actions meant to incite the public to promote discrimination on the grounds that are mentioned in the incriminating legal act. In this case, the natural person, who acted on behalf of or in the interest of the legal person, will also be held responsible. Under these circumstances, the impossibility to dissolve or suspend the activity of political parties and legal persons that carry out their activity in the press domain seems an aberration of a misunderstood democracy.[18]
The offense is consummated, irrespective of whether or not public incitement has an outcome. The offense is consummated when the author of the act addresses the public encouragements to promote discrimination on the grounds mentioned by the law, and it does not matter if the author has succeeded in finishing his/her discourse or not. However, from the contents of the discourse it should obviously result the promotion of discriminating ideas and the incitement to hatred based on the grounds stipulated under the law.
The offense may take the shape of a continuing offense when, at intervals of time, and towards the same aim, the author addresses the same group or different groups, in the same place or in different places, encouragements to promote discriminating actions on the grounds stipulated under the law. In case of such an offense the attempt is impossible, since the offense implies instant consummation. ■
NOTES
[1] R. Cassin, La Déclaration Universelle et la mise en oeuvre des droits de l'homme, Recueil des Cours de l'Académie de la Haye, 1951, pp. 240-362, apud. G. Cohen-Jonathan, La Convention Européenne des droits de l'Homme, Presses Universitaires d'Aix-Marseille, 1989, p. 10.
[2] The ILO Convention on the application of the principles on the right to organize and collective bargaining, B. Of. No.
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34/29.08.1958
[3] ILO Convention no. 100/1951 on the equal remuneration for men and women workers, for work of equal value, B.Of. no. 4/18.01.1958
[4] ILO Convention no. 105/1957 on the abolition of forced labor, B. Of. no. 249/06.07.1998
[5] Published in B.Of. no. 5/20.04.1969
[6] Published in B. Of. no. 146/20.11.1974
[7] Published in B.Of. no. 92/28.07.1970
[8] The International Convention on the Suppression and Punishment of the Crime of Apartheid (1973), published in B. Of. no. 64/17.07.1978
[9] Published in the Official Journal no. 135/31.05.1994
[10] G. Cohen-Jonathan, op. cit. pp. 538-545.
[11] Government Ordinance no. 137/2000 on the prevention and punishment of all forms of discrimination - Official Journal no. 431/2.09.2000, amended by Government Ordinance no. 77/2003 - Official Journal no. 619/30.08.2003.
[12] Published in the Official Journal. no. 601/12.07.2006
[13] V. Cioclei, Mobilul în conduita criminala, Edit. All Beck, 1999, pp. 16-22.
[14] V. Cioclei, op. cit. p.201.
[15] Published in the Official Journal no. 431/2.09.2000
[16] Nationalist-chauvinistic propaganda, incitement to national or class hatred, unless the act constitutes the offense stipulated under article 166, is punishable by imprisonment from 6 months to 5 years.
[17] V. Dongoroz - Drept penal, 1939, p. 519.
[18] V. Pasca, Modificarile Codului penal. Legea nr. 278/2006. Comentarii si explicatii, Edit. Hamangiu, 2007, pp. 110-114.
Lábjegyzetek:
[1] The Author is a professor, West University of Timisoara.
Visszaugrás
