RACIST AND XENOPHOBIC MOTIVATION AS AN AGGRAVATING CIRCUMSTANCE IN SENTENCING
Based on certain international legal acts (Council Framework Decision 2008/913/JHA dated 28 November 2008), but without limiting it solely to racist and xenophobic motivation, the Criminal Code of the Republic of Serbia (SCC) introduced a new provision (effective of 1 January 2013) with a view to ensuring a more severe punishment for criminal offences committed against members of certain social groups out of hatred based on such membership. Despite the fact that the general principles of sentencing specified in the SCC foresee that the court will take into account, inter alia, the motives for committing the offence, this provision is of general nature and does not explicitly mention hate as an aggravating circumstance nor, indeed, does it foresee hate as a statutory aggravating circumstance. This might be seen as a justifiable reason for introducing such a provision, regardless of the fact that it implies departing from the general principles in meting out the punishment. This provision is the only mandatory aggravating circumstance in the SCC. However, it is primarily a criminological notion which does not constitute a precise criminal law category. Existing perceptions of “hate crimes” are quite diverse. Therefore, harsher punishment for such criminal offences provided for by foreseeing more serious forms of existing criminal offences would not be justifiable. The selection of these criminal offences per se would be arbitrary.
The provision of Art. 54a of the SCC stipulates also that hate shall not be considered as an aggravating circumstance in criminal offences for which hate as a motive is foreseen as a legal element. Although the SCC does not foresee any criminal offences explicitly associated with hate as a motive, this prohibition still refers to four criminal acts the legal descriptions of which include certain forms of hate. Taking into account also the general prohibition of double evaluation in determining the punishment as well as the nature and sense of such crimes, hate within the meaning of Art. 54a of the SCC should not be taken into account as an aggravating circumstance since the above four criminal acts are, indeed, based on it.
It is difficult to say now whether the solution opted for by the legislator in Serbia shall incite the pronouncement of more severe punishments for crimes committed out of hate on the above grounds. So far, there have been no studies done on whether and to what extent the said circumstance inﬂuenced sentencing. One can reasonably assume, however, that the courts did take it into account when assessing the motives underlying such criminal offences. In any case, this is a symbolic gesture on the part of the legislator which should be upheld as such, but if one should ask whether criminal law can suppress hate (against any person), no optimistic view could be based on realistic approach to limited capacities of criminal law.