The Committee on
the Elimination of Racial Discrimination, established under article 8 of the
International Convention on the Elimination of All Forms of Racial
Meeting on 13 March 2000,
Having concluded its consideration of communication No. 16/1999, submitted
to the Committee under article 14 of the International Convention on the
Elimination of All Forms of Racial Discrimination,
Having taken into consideration all written information made available to it
by the author and the State party,
Bearing in mind rule 95 of its rules of procedure requiring it to formulate
its opinion on the communication before it,
Adopts the following:
1.1 The author of the communication is Kashif Ahmad, a Danish citizen of
Pakistani origin born in 1980 who claims to be a victim of violations by
Denmark of article 2, subparagraph 1 (d), and article 6 of the Convention.
He is represented by counsel.
1.2 In conformity with article 14, paragraph 6 (a), of the Convention, the
Committee transmitted the communication to the State party on 27 August
The Facts as Submitted by the Author
2.1 On 16 June 1998 family members and friends had come to meet pupils after
the exams at the Avedore Gymnasium, Hvidovre, as is the usual practice in
Danish high schools. The author and his brother were waiting with a video
camera outside an examination room, where a friend of theirs was taking an
exam. While they were waiting, a teacher, Mr. K.P., asked them to leave.
Since they refused the teacher informed the headmaster, Mr. O.T., who
immediately called the police. Mr. O.T. publicly referred to the author and
his brother as "a bunch of monkeys". When the author told Mr. O.T. that he
was going to complain about the manner in which he had been treated, Mr. K.P.
expressed doubts about the effectiveness of such a complaint and said that
the author and his brother were "a bunch of monkeys" who could not express
themselves correctly. When the police arrived the author and his friends
discussed the matter with them. The police promised to have a discussion
with Mr. O.T.
2.2 The same day the author received a letter in which Mr. O.T. informed him
that he did not want him to be present at the official celebration to be
held at the school on 19 June 1998 in the course of which he was going to
receive his diploma. On 17 June 1998 the author's father went to Avedore
Gymnasium in order to discuss the matter with Mr. O.T. Mr. O.T. first
refused to receive him and when he finally accepted, told him that the
matter had been settled and asked him to leave. Subsequently, the author
learned from one of the employees at the school that Mr. O.T. had given
instructions to the door guards not to let him in.
2.3 By letter dated 25 June 1998, counsel informed Mr. O.T. that the matter
was a serious one and that the expressions he had used against the author
amounted to a violation of section 266b of the Danish Penal Code. Counsel
also requested an explanation and an apology for his client. Mr. O.T.
replied that the author and his brother had been noisy outside the
examination rooms but he did not deny having used the racist expressions
referred to above.
2.4 Counsel filed a complaint with the police of Hvidovre on 7 July 1998. By
letter dated 23 September 1998 the police informed him that they had
interviewed Mr. O.T. and Mr. K.P. and concluded that the expressions used
were outside the scope of section 266b of the Penal Code and that the case
would be discontinued in accordance with section 749, subparagraph 2, of the
Danish Administration of Justice Act. The letter also said that the
expressions used had to be seen in connection with a tense incident. In the
opinion of the police, they should not be understood as insulting or
degrading in terms of race, colour, national or ethnic origin, since they
could also be used towards persons of Danish origin who behaved as the
2.5 By letter dated 1 October 1998 counsel requested the police to have the
case brought before the State Attorney. On 30 November 1998 the State
Attorney upheld the decision of the police.
2.6 Counsel claims that, in accordance with section 101 of the
Administration of Justice Act, a decision by the State Attorney relating to
an investigation by the police departments cannot be appealed to other
authorities. As questions relating to the pursuance by the police of charges
against individuals are entirely up to the discretion of the police, there
is no possibility of bringing the case before a court. Furthermore, legal
action by the author against Mr. O.T. and Mr. K.P. would not be effective,
taking into account that the police of Hvidovre and the State Attorney had
rejected the author's complaints.
2.7 Counsel further contends that the High Court of the Eastern Circuit, in
a decision of 5 February 1999, held the view that an incident of racial
discrimination did not in itself imply a violation of the honour and
reputation of a person under section 26 of the Danish Act on Tort. According
to counsel the position of the High Court, as a result of that decision, is
that racial discrimination carried out politely would not in itself
constitute a basis for a claim for compensation.
3.1 It is submitted that the case was not examined properly by the national
authorities and that the author never obtained an apology or sufficient
satisfaction or reparation. As a result the State party has violated its
obligations under article 2, subparagraph 1 (d) and article 6 of the
3.2 Counsel claims that neither the police department of Hvidovre nor the
State Attorney examined, in particular, the following issues: (a) had Mr.
O.T. and Mr. K.P. said that the author and his brother were "a bunch of
monkeys" and that they could not express themselves correctly; (b) had that
been used with reference to the Pakistani origin of the author and his
brother; (c) had that expression amounted to a discriminatory opinion about
the author and his brother. According to counsel, the police limited
themselves to interviewing Mr. O.T. and Mr. K.P; they did not even consider
interviewing the author and his brother, or the six witnesses whose names
and addresses were known to them.
State Party's Submission on Admissibility and Merits
4.1 In a submission dated 29 November 1999 the State party contends that the
author has failed to establish a prima facie case for the purpose of
admissibility and, accordingly, the communication should be declared
inadmissible. The State party does not dispute that the other conditions for
admissibility set out in article 14 of the Convention and rule 91 of the
Committee's rules of procedure are satisfied. Should the Committee not
declare the communication inadmissible on the above ground, the State party
submits that there has been no violation of the Convention and that the
communication is manifestly ill-founded.
4.2 The State party quotes excerpts from the complaint lodged by counsel
with the Chief Constable of Hvidovre on 7 July 1998, the letter addressed by
counsel to Avedore High School on 22 June 1998 requesting an explanation of
the incident and an apology, and the response from the headmaster. It states
that as a result of counsel's complaint the police interviewed Mr. K.P. on 9
4.3 Mr. K.P. explained to the police that the author had previously been a
student of his and that there had been disagreements between them, including
about the author's grades. On the examination day in question he had been
corridor attendant responsible, inter alia, for peace and order. At one
point he noticed two individuals in the basement at the door to the sports
field and that a cup was jammed into the door to keep it open. He asked the
two persons, one of whom was the author's brother, what they were doing
there. They answered that they were waiting for the author, who was
returning books. Mr. K.P. said that it was a strange place to be standing
and that there had previously been three cases of theft at the school where
that particular door had been used. The two young people started getting
excited and shouted at Mr. K.P. The author, who was standing at the book
return desk, turned round and insulted Mr. K.P.
4.4 Later, Mr. K.P. noticed four to six persons of foreign origin, including
the author and his brother, waiting outside an examination room. There was
much noise in the corridor and several times the teachers had come out of
the examination rooms and requested quiet. Mr. K.P. then decided to empty
the corridors. Everybody left except the group containing the author and his
brother. The brother shouted that they were not going to leave. Mr. K.P.
asked them four times, quietly and peacefully, to leave the corridor but
they still refused to do so. Both the author and his brother had
threatening, piercing eyes, pointed with their fingers at Mr. K.P. and
shouted and screamed. Mr. K.P. pressed the intercommunication system on the
wall and shortly afterwards the headmaster arrived. The headmaster tried for
about five minutes to talk to the group but they still refused to leave. The
group, mainly led by the brother and, to some extent, the author, hurled
insults and became more and more threatening, even in the presence of other
teachers. As a result, the police were summoned. Mr. K.P. could not remember
whether the group left by themselves after realizing that the police had
been called or whether the police removed them. In any case, he noted
subsequently that police were standing outside the school talking with the
group. Mr. K.P. was asked whether the headmaster had said anything about
"monkeys" to the group. He replied that he had heard nothing of the sort. He
was asked whether he had said anything similar. He answered that he did not
think so but was not able to reply definitively. If he had said something
about "monkeys", it had nothing to do with race, religion, ethnic origin,
etc. of the group, but had merely been used as an ordinary slang word for a
"bunch" that behaved abnormally. He and Mr. O.T. had not wanted to lodge a
complaint with the police about the threats received, as they were used to
cultural differences and different conduct.
4.5 On 18 September 1998 the police interviewed Mr. O.T., the headmaster. He
explained, inter alia, that Mr. K.P. had come to him and said that he was
unable to control events on the second floor as a group of foreigners would
not comply with his instructions. Upon arriving on the scene he noticed that
a group of foreigners consisting of 8 to 10 persons, including the author
and some of his classmates, were making a lot of noise. When he asked them
to leave the author's brother started to shout, insulted him and made
threatening gestures. While all this was happening the author was standing
with a video camera. Mr. O.T. believes that he was recording. A group of
parents who had been sitting at the end of the corridor had been very
shocked. During the entire episode several adults had come to the corridor
and watched the whole scene with astonishment. When asked why he did not
file a complaint, Mr. O.T. explained that they were used to many different
nationalities at the school and consequently they probably had a higher
tolerance threshold. As for the use of the expression "bunch of monkeys", he
said that he could not deny having said something like that. If so, the word
"monkey" was merely used in the light of the conduct of the group and had no
relation to the religious affiliation, colour, ethnic origin, etc. of the
group. He could equally have used the word about a group of ethnic Danes
behaving similarly. He could not remember Mr. K.P. referring to the group as
"a bunch of monkeys who could not express themselves grammatically
4.6 By letter dated 23 September 1998 the Chief Constable of Hvidovre
informed counsel, inter alia, of the following:
"Pursuant to section 742(2) of the Administration of Justice Act (retsplejeloven),
the police initiates an investigation on the basis of an information when it
can reasonably be assumed that a criminal offence subject to public
prosecution has been committed.
"I have had some investigation made in the case, inter alia, by interviewing
Mr. O.T. and Mr. K.P.
"Subsequently, I am of the opinion that the statements and the circumstances
under which they may have been made fall outside the provisions of section
266b of the Criminal Code.
"I have therefore decided, pursuant to section 749(2) of the Administration
of Justice Act, to discontinue the investigation and shelve the case.
"In my assessment I have attached importance to the following:
"Mr. O.T. does not entirely deny that he may have said something like the
"However, the statements must be seen in connection with a tense episode in
the corridors of the High School, during which both Mr. K.P., the teacher,
and especially Mr. O.T., the headmaster, have borne various expressions of
disapproval and even had to summon the police to get peace at the
"Anyway, in my opinion, the alleged statements cannot especially be
perceived as insulting or degrading in relation to race, colour, national
extraction or ethnic origin, as such statements could be made with the same
meaning about others - also of Danish ethnic origin, that exhibit a similar
conduct. The statements refer to the nature of the conduct and not to the
"Any claim for damages is referred to a civil action."
4.7 By letter of 1 October 1998 counsel appealed the decision to the
District Public Prosecutor for Zealand through the Chief Constable of
Hvidovre. He stressed, inter alia, that neither the author nor his
classmates had been interviewed by the police and that a video recording
existed that showed the situation about 30 minutes before the episode
occurred, when a very large number of classmates and relatives of a student
being examined were in the corridor. The video also showed the situation
shortly before the statements in question were made, when only a quite small
number of persons were present in the corridor together with Mr. K.P.
4.8 On 6 October 1998 the Chief Constable forwarded the case to the District
Public Prosecutor and explained that in view of the context in which the
statements in question had been made he had not found it necessary to
interview the author. Although he had not seen the video he did not consider
it relevant, as it did not concern the episode itself. On 30 November 1998
the District Public Prosecutor informed counsel that he concurred entirely
in the assessment made by the Chief Constable and found no basis for
reversing his decision.
4.9 The State party submits that the central point in the present
communication is the statements allegedly made by Mr. K.P. and Mr. O.T.
Those statements, if made, are not an expression of a difference of
treatment that constitutes discrimination in violation of article 2 (1) and
article 5 (e) (v) of the Convention. It is more relevant to assess the
statements in question in relation to article 4 (a) of the Convention, which
requires States parties to penalize certain categories of misconduct. To
enable Denmark to ratify the Convention, section 266b and other sections of
the Danish Criminal Code were amended. Pursuant to section 266b, any person
who, publicly or with the intent of dissemination to a wider circle, makes
statements or any other communication by which a group of persons is
threatened, insulted or exposed to indignities on the grounds of race,
colour, national extraction or ethnic origin, shall be liable to punishment.
4.10 It is a condition that the statement in question be directed at a group
on the basis of its race, etc. Statements aimed at a single person must, if
they cannot be seen as an expression of insult or persecution of the group
to which the person belongs, be assessed pursuant to the general rules of
the Criminal Code on invasion of privacy and defamation of character. When
assessing whether some statements must be deemed to be in violation of
section 266b it is necessary to make a concrete assessment of the substance
of the statements, including the context in which they were made. This was
done by the Chief Constable and the District Public Prosecutors in deciding
to discontinue the investigation. The Government concurs entirely in those
assessments and considers that the author has not substantiated or rendered
probable that he was the victim of racist statements in violation of the
Convention, as they were not aimed at a group because of its race or ethnic
origin. Thus, the author has failed to establish a prima facie case for the
purpose of admissibility of his communication.
4.11 The State party is aware that the Convention makes certain requirements
of the treatment accorded by the authorities to information from private
individuals concerning alleged racial discrimination contrary to the
Convention (1). However, the investigation performed by the police fully
satisfied the requirements that can be inferred from the Convention as
interpreted in the Committee's practice. The police had details on the
substance of the alleged statements both from the author and his counsel and
from the teacher and the headmaster. The author has specifically pointed out
that the police should have assessed whether the statements that gave rise
to the complaint had in fact been made. The State party argues that both the
police and the Public Prosecutor assessed that it was not necessary to
decide definitively whether the statements were in fact made as, even if
they had been made, they were not criminal pursuant to section 266b.
4.12 The task of the police in its treatment of a complaint differs from the
way a criminal case is treated by the courts. The task of the police is not
to establish in a binding manner what actually happened, but to assess
"whether the conditions of imposing criminal liability ... are satisfied
..." (section 743 of the Administration of Justice Act). The police have
determined that, to be able to make this assessment, it was not necessary to
decide whether the alleged statements had in fact been made, as whether they
had been made or not, they were not criminal.
4.13 Moreover, the author has pointed out that the police should have
determined whether the expressions used were intended to disparage the
national origin of the author and whether they were racially discriminatory.
According to the State party, such a determination was indeed made, as
reflected in the decisions of the Chief Constable and the District Public
4.14 The author has further pointed out that he, his brother and six named
witnesses were not interviewed by the police. The State party argues that
the statements, if they had been made, could not be considered as falling
within section 266b of the Criminal Code. This made it unnecessary to
interview the applicant, who had given an account of his understanding of
the incident in his written information. Against this background, the State
party considers that it was equally unnecessary to interview the applicant's
brother and the six witnesses.
4.15 The State party finds that the police did initiate a proper
investigation. Thus, article 2 (1) (d), article 5 (e) (v) and article 6 of
the Convention have not been violated, nor has article 4 (a).
5. In a submission dated 10 January 2000 counsel argues that the State party
recognizes in its response some of the essential elements which gave rise to
the report by the author to the police. In previous cases the Committee has
stressed the need for a thorough investigation of reported cases of racial
discrimination. As explained in the initial submission, the police declined
to examine the case after having interviewed only the two representatives of
the high school. In order to fulfil the requirements of a thorough
investigation, and in order to verify whether the questions relating to the
expressions used and their status under Danish law, the police should at
least have interviewed the author and/or the witnesses.
Issues and Proceedings Before the Committee
6.1. The State party submits that Mr. K.P. did not deny having called the
author and his group "monkeys". It also submits that Mr. O.T. did not deny
having said something similar. It is also established that these utterances
were made in the course of a tense episode in a school corridor and in the
presence of several witnesses. Thus, the Committee is of the opinion that
the author was insulted in public, at least by Mr. O.T.
6.2. The District Public Prosecutor did not establish whether the author had
been insulted on the grounds of his national or ethnic origin, in violation
of the provisions of article 2, paragraph 1 (d), of the Convention. It is
the opinion of the Committee that if the police involved in the case had not
discontinued their investigations, it might have been established whether
the author had indeed been insulted on racial grounds.
6.3. From information submitted by the State party in its fourteenth
periodic report (CERD/C/362/Add.1), the Committee gathers that on several
occasions persons have been convicted by Danish courts for breaches of
section 266b of the Criminal Code for insulting or degrading statements
similar to the ones uttered in the present case. Therefore, the Committee
does not share the opinion of the State party that the statements in
question do not fall within section 266b of the Criminal Code.
6.4. Owing to the failure of the police to continue their investigations,
and the final decision of the Public Prosecutor against which there was no
right of appeal, the author was denied any opportunity to establish whether
his rights under the Convention had been violated. From this it follows that
the author has been denied effective protection against racial
discrimination and remedies attendant thereupon by the State party.
7. The Committee considers that the author has established a prima facie
case for the purpose of admissibility. It also considers that the conditions
for admissibility have been satisfied. It therefore decides, under rule 91
of its rules of procedure, that the communication is admissible.
8. As for the merits, the Committee considers that, in the light of the
above findings, the facts as presented constitute a violation of article 6
of the Convention.
9. The Committee recommends to the State party to ensure that the police and
the public prosecutors properly investigate accusations and complaints
related to acts of racial discrimination which should be punishable by law
according to article 4 of the Convention.
1. See opinions adopted by the Committee in L.K. v. the Netherlands (CERD/C/42/D/4/1991),
Yilmaz-Dogan v. the Netherlands (CERD/C/36/D/1/1984) and Habassi v. Denmark