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B.Bataa: Assaults and psychological damage caused by hate crimes should face more severe punishment

By M.Zoljargal

The following is an interview with B.Bataa, Head of the Complaints and Inquiry Division of the National Human Rights Commission (NHRC), about moves to criminalize hate crimes in Mongolia

We’re interested in knowing about the hate crime legislation in Mongolia, and how important it is to Mongolian society and protecting human rights.

International organizations have asked us to include hate-motivated acts as actual crimes under Mongolia’s Criminal Code. Mongolia is currently formulating a draft to revise the code. However, hate-motivated acts are not being included in it as a crime category. The NHRC has been demanding to include them as such. The draft includes revision of the Anti-Discrimination Law, but in our view, the law provisions are too broad – too many acts might run the risk of being seen as crime.

 

I understand that there has been some cases where violence occurred due to hate crimes in Mongolia. I’m curious about which particular cases started this process and raised the need for a legislation against hate crimes.

There have been several cases connected to discrimination that are based on hate, specifically towards gay people. Their right to live and live freely were violated as they were targeted due to their sexual orientation. For instance, in some cases, perpetrators who committed murder were convicted under current legal penalties.

However, those acts where perpetrators pressure, threaten and interfere with daily lives of people out of hatred for their sexual orientation, gender and any other factors are not, under current provisions, legally punishable under the Criminal Code. That is why we proposed to include provisions to criminalize hate crime, largely at the request of international human rights organizations.

 

How many hate crime related complaints has the NHRC received?

Not many. Several LGBT people contacted our commission and complained that they are having a hard time living and working as others do, simply because others discriminate against them, or defamed them due to their sexual orientation.

In other cases, some HIV positive people complained that they have faced numerous work-related problems.  For instance, they commonly have no other choice but to give up their jobs as it is hard to continue their employment whilst being discriminated against.

 

When was the draft written and at what stage is the law at currently?

Anti-discrimination provisions are included to some extent in the laws of every sector. For instance, under labor and family laws. The NHRC continues to advocate for the inclusion of hate-motivated acts as actual crimes under law because at present, only those cases that caused physical damage to the victim are seen as crimes. In such cases, perpetrators are convicted only because physical assault is prohibited under law, and seen as an act against basic human rights.

In cases of hate-motivated physical assaults, psychological damage is also common. These affects should be noted as crimes in the new Criminal Code. The severity of punishment for hate-motivated crimes should be stipulated under specific and relevant legislation.

In our view, physical assaults, psychological impacts and murders that are specifically hate-motivated have to face more severe punishments. Their motivation is special and not like that of any other similar crimes. This is the view of the NHRC.

The draft has already been prepared and we have now submitted it to the government. We hope that the government will pass it on to the spring session of Parliament.

 

What are the recommendations of the NHRC in terms of the types of punishment? For instance, detention length that should be imposed on hate crimes?

The NHRC is in no position to recommend specific punishments for hate crimes. How the perpetrators should be punished must be decided according to legal policies of the state.

 

There have been suggestions that some politicians wish to re-include defamation in this revision of the Crime Prevention law. Does the NHRC support this move?

Defamation is included in the Criminal Code of Mongolia. The Crime Prevention Law itself does not have specifications to be applied for specific cases, for instance, in cases of defamation. This law focuses on what should be done to prevent all types of crimes and who or which organizations shall be responsible for the implementation of the measures for prevention in general. In other words, this law is a procedure-based law.

For example, if robbery takes place more often at certain locations, the organization in charge will conduct research about the cause of robbery. In that case, poor lighting systems might be identified as the reason those areas are regularly targeted. As a result, more streetlights will prove a valuable solution for future crime prevention – this is how the Crime Prevention law is applied.

Yet it proves very difficult to specify what should be done and by whom to prevent each type of crime under the law.

 

How much support and opposition has the hate crime legislation received in the parliament’s spring session?

The spring session discusses draft bills that have been approved in the previous session. We are not certain whether the revised draft has been passed onto to the spring session. If it was, it will be discussed according to that schedule.

 

Do you expect that it will pass with full support or will there be some opposition?

We hope it will be passed. Those who hold power in the government are the majority, the Mongolian Democratic Party (MDP). This party hasn’t been the majority for a long time, so we can see that the MDP is in a rush to make changes. The draft might pass just like many other drafts which were passed in parliamentary fall session last year. But we can’t tell for sure.

The current Criminal Code describes even minor violations as crimes of discrimination, as its legislative reach is too broad. As a result, we all run a very high risk of being connected to discrimination-oriented crimes. Crime legislations must be very specific. Penalties should be impose only after a thorough study on who the legislation applies to, the motivation that led to the crime and how bad the crime’s damage was and etc.

As a lawyer, I think the discrimination acts as outlined in the revised Criminal Code should be divided into two parts. Those cases that saw minor damage and consequences, and those more serious cases involving greater damage – and specific purpose or motivation – should be judged by the Criminal Code.

As it stands, if the revised code is passed, too many people might be considered to have taken part in discrimination.

The NHRC previously proposed this division in the discrimination law – we submitted this to the government via the Ministry of Justice, but it was denied. The ministry will review drafts of the Violation Law following the revision of the Criminal Code. It is possible that the Violation Law may also prove too broad in its reach.

When the laws are too broad, too many citizens might be called as suspects, which in return might violate their human rights.

 

Are there any specifically contentious groups that might cause debates over the Hate Crime Law – some who believe it unnecessary, as defamation and insult laws have already cover these issues? What would you say to convince someone that Mongolia needs something as dramatic as a Hate Crime Law in order to protect people’s rights?

If both the Violation Law and Criminal Code drafts were formulated with consistency prior to submission, I would’ve said you can’t either discriminate or hate other people for their difference. It is common sense that the world has acknowledged. People who hurt other people either physically or mentally, or by interfering with their freedom, should see their efforts penalized as crimes and face legal penalties.

The NHRC is a third party that proposes its ideas on legislations to the government. Ministries in turn submit drafts and formulate legislation. If it was the NHRC who submitted the revised draft, we would’ve divided the code into two parts, as mentioned earlier.

 

I’m also curious about the nature of the complaints that the NHRC regularly receives, since you’re the Head of Complaints and Inquiry Division.

The highest number of complaints we receive are connected to the current procedure of criminal interrogation and punitive actions. For instance, citizens who are imprisoned or being interrogated when called as suspects. They often contact us to complain about police procedure.

Labor rights complaints would be second, followed by complaints regarding state services.

 

Our final question would be in terms of the future plans for Mongolia’s government to move towards more human rights legislations. Do you think that it is likely that Mongolia will make positive moves in the next three to five years, or do you think that this process is perhaps too slow for the Mongolian people?

We might generally divide these into two areas – political and civil rights, as well as social and economic rights.

Both implementation and enforcement of social and economic rights in Mongolia is very slow. These rights are connected to our daily lives, and how we should be able to live a healthy life in our society.  We should be able to independently develop and be free with options and opportunities.

In contrast, civil and political rights brings with it obligations and forces citizens to act in order to ensure their own freedom of expression.

I feel that the primary reason that social and economic rights in Mongolia are slowly implemented is perhaps due to budget issues. Therefore, we believe that there is a need to closely look at whether the budgets are properly spent or not. However, the NHRC is lacking power to monitor the budget spending alone.

If monitoring is carried out to ensure the state budget is being properly used for ensuring social and economic rights of the people of Mongolia, it will sure be an interesting piece.

When it comes to civil and political rights, approximately 80 percent of implementation of the rights has to do with legislation and 20 percent with budget. It is the other way in economic and social rights. This might help explain why progress is slow in the area of social and economic rights. For instance, it is doubtful whether it was more important to spend the state budget, built with taxpayers’ money, to reform police uniform which were all made in Turkey – or, instead, to improve institutions that provide basic social and economic rights for citizens, such as hospitals and schools.

Also, we are not sure how much the remaining uniforms that were saved apart from the ones the police wore previously cost in total.

 

Mongolia has both transparency and anti-corruption laws in place. Do you feel that these are well-implemented, enough to ensure that budget spending is adequately monitored?

I think one of the problems is that Mongolian people’s education. For example, we both enjoy full rights to ask the Minister of Justice how much the ministry spent on the new police uniforms, for example, and how much money is being wasted now that the old uniforms have been done away with. But the question, is how many people will go there to ask this question in reality? Transparency issues have a lot to do with citizens’ education and awareness, in my view.

All Mongolian citizens have the right to ask and obtain information from organizations, according to the Media Transparency Law of Mongolia. If any organization refuses to answer, citizens can contact the NHRC and report that such an organization is evading my freedom of information.

Apart from education, I believe Mongolian people’s traditional attitude is connected to poor implementation of transparency and anti-corruption laws. Many Mongolians do not regularly think critically, while some others try to stay away from bad consequences that might flow from their free expression and demands for information.

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Posted by on Apr 30 2014. Filed under Топ мэдээ. You can follow any responses to this entry through the RSS 2.0. Both comments and pings are currently closed.

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