Right to stay for victims of hate crimes. Concept, analysis and outlook

• Applicant: Simon Herker
• Subject Area: Criminal Law
• Term: from 2022 to 2023
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 503202260

This monograph is an analysis of the legal implications for victims of hate crimes concerning their right to residence in the multi-level system of International, European, German constitutional, federal and state law. Moreover, it empirically investigates the administrative practice in the Federal Republic of Germany, based on which it suggests amendments of the German residence act de lege ferenda. In a first step, the paper examines the phenomenon of hate, bias, or discriminatory crime, with particular consideration of approaches from victimology and the social sciences. Subsequently, it is observed that the non-discrimination principle entails an obligation on the respondent State to conduct an effective investigation of any hate crime incidents. This responsibility corresponds with a victim's right to effective judicial protection, reparation, and satisfaction. Victims shall be able to take an active role in the proceedings. Depending on the severity of the crime, they have the right to physically attend and participate in the criminal proceedings against the suspects. This is a result of the human and fundamental rights impaired by hate crimes. Additionally, it expresses the right to a fair trial and finds its basis in modern criminal justice theories. The German residence act enables the Foreigners' Registration Office to adequately take into consideration the interests of crime victims regarding criminal proceedings, possible compensation procedures, and medical as well as psychotherapeutic treatment This also manifests itself in the administrative rules of the federal states of Brandenburg, Thuringia and Berlin, which prescribe that the discretionary power of the residence act may be used in favour of the victims of hate, bias, or discriminatory crimes. Yet, for three-and-a-half to four years since coming into effect, these administrative rules have hardly been put to use due to a lack of formal applications. The reason may be problems of the mobilization of the law that can also be associated with the victims' precarious situation and status of residence. In carrying out a particular case study, the monograph identifies indications that there is a lack of sensitivity to people affected by hate crimes in the administrative as well as in the judicial authorities. The personal and legal interests of the hate crime victim to participate in the proceedings against the suspects have mostly been disregarded, insofar as they go beyond the public interest in criminal prosecution. There is a need for legal clarification concerning the right of residence of hate crime victims. On the one hand, it shall secure the effective participation of hate crime victims in the criminal proceedings against the suspects. On the other hand, a statutory right to permanent residence after the conclusion of criminal proceedings may be contemplated as a means of compensation and commitment against discriminatory violence.

• DFG Programme: Publication Grants