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The Committee on
the Elimination of Racial Discrimination , established under article 8 of
the International Convention on the Elimination of All Forms of Racial
Discrimination,
Meeting on 17 March 2000,
Having concluded its consideration of communication No. 17/1999, 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:
Opinion
1.1 The author of the communication is Mr. B.J., a Danish engineer of
Iranian origin born in 1965 who claims to be a victim of violations by
Denmark of article 2, subparagraph l (a), (b) and (d), article 5 (f) 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
1999.
The Facts as Submitted by The Author
2.1 The author has lived in Denmark since 1984 and has Danish nationality.
On 1 February 1997 he went to a discotheque in Odense with his brother and a
group of friends. Two of them were of Danish origin and four were not. The
doorman of the discotheque, Mr. M.R.S., refused to let them in. When the
author asked the reason Mr. M.R.S. replied that it was because they were
"foreigners".
2.2 On 2 February 1997 the author reported the matter to the police,
complaining of racial discrimination. The police assistant on duty was
unwilling to accept the complaint and informed the author that the
admissions policy was entirely up to the owners of the discotheque.
2.3 On 3 February 1997 the author filed a written complaint that was
rejected by the police. He then appealed to the State Attorney who decided
to initiate an investigation. Subsequently, the Public Prosecutor brought
the case before the District Court of Odense. By decision of 20 March 1998
the Court ruled that Mr. M.R.S. was to be fined DKr 1,000 for violation of
section 1, subparagraph 2, of Consolidated Act No. 626 of 29 September 1987
on racial discrimination.
2.4 The author had also requested the Public Prosecutor to file a claim for
compensation in accordance with section 26 of the Act on Civil Liability. In
that respect the court decided that the violation to which the author had
been subjected was not of such a grave or humiliating character as to
justify the granting of pecuniary compensation. Accordingly, the claim was
rejected.
2.5 The author did not receive a copy of the court's judgement until the
time-limit for filing an appeal to the High Court had expired. With the
assistance of the Documentary and Advisory Centre on Racial Discrimination (DRC)
he obtained a special permit from the High Court of the Eastern Circuit to
bring the case before it. However, the High Court did not find any basis for
a claim of compensation. According to its judgement, the doorman had
informed the author and his friends that they could not enter the
discotheque because, in accordance with the discotheque's rules, there were
already more than ten foreigners inside. That information was first given to
the author's brother and then to the author himself in a polite manner. In
the circumstances the High Court concluded that the violation of the
author's honour committed by the doorman was not of such severity and did
not involve such humiliation as to justify the granting of compensation
under section 26 of the Act on Civil Liability. The Court made reference to
the fact that the doorman had been fined for rejecting the author and that,
accordingly, the necessary verification and condemnation of the act had
taken place and the author had had sufficient satisfaction.
2.6 Judgements of the High Court in appeal cases may normally not be
appealed to the Supreme Court. However, the Procesbevillingsnaevn may grant
a special permit if the case involves issues of principle. On 4 March 1999
the author's counsel applied to the Procesbevillingsnaevn for such a permit,
arguing that Danish courts had never before had the possibility to interpret
section 26 of the Act on Civil Liability in the light of article 6 of the
Convention. The application, however, was rejected by letter of 11 May 1999
and was not brought before the Supreme Court. No further remedies are
available under Danish law.
The Complaint
3.1 According to counsel, it is undisputed that the author's exclusion from
the discotheque was an act of racial discrimination. Article 6 of the
Convention stipulates that effective satisfaction and reparation must be
granted for any damage suffered as a result of discrimination. However, the
purely symbolic fine imposed by the Odense court does not provide effective
satisfaction or reparation in accordance with that provision. Furthermore,
under section 26 of the Danish Act on Civil Liability it is possible to
grant compensation for insult. By refusing such compensation the Danish
courts have failed to apply Danish law.
3.2 Counsel further claims that by refusing the author's right to
compensation the Danish courts have not fulfilled their obligations under
article 2, subparagraph 1 (a), (b) and (d), of the Convention. He finally
claims that by allowing the discotheque to refuse the author access on
racial grounds the State party has not fulfilled its obligations under
article 5 (f) of the Convention.
State Party's Observations
4.1 In a submission dated 29 November 1999 the State party recognizes that
the conditions for admissibility of the communication are satisfied.
However, it claims that no violation of the Convention has occurred and that
the communication is manifestly ill-founded.
4.2 The State party recalls that by indictment of 3 June 1997, the Chief
Constable of Odense charged the doorman in question with violation of
section 1 (2), of the Act Prohibiting Discrimination on the basis of Race
(Consolidated Act No. 626 of 29 September 1987), because on 2 February 1997
he refused the author admittance on the basis of the latter's colour and
ethnic origin. On 20 March 1998 the District Court of Odense found the
doorman guilty of the charge. Upon counsel's request, the prosecutor claimed
that the doorman should pay compensation for non-pecuniary damage to the
author, in accordance with section 26 of the Act on Liability in Damages (erstatningsansvarsloven)
and article 6 of the Convention. However, the claim for compensation was
dismissed by the District Court. The author filed an appeal with the Eastern
High Court claiming that the offender should be ordered to pay compensation
for non-pecuniary damage of DKr 10,000 with the addition of pre-judgement
interest. However, the Eastern High Court upheld the judgement of the
District Court.
4.3 In connection with the alleged violation of article 2 (1) (a), (b) and
(d) of the Convention, the State party argues that article 2 (1) (d) is the
most relevant provision, as article 2 (1) (a) and (b) do not make any
independent contribution in relation to the author's complaint, which
concerns discrimination committed by a private individual. The adoption of
Consolidated Act No. 626 of 29 June 1987 prohibiting discrimination on the
basis of race is to be seen, inter alia, as fulfilment of the obligations
following from article 2 (l) (d), 5 (f) and 6 of the Convention. Not only
has the State party adopted law that criminalizes acts of racial
discrimination such as that of which the applicant was a victim on 2
February 1997, but Danish authorities have enforced these criminal
provisions in the specific case by prosecuting and penalizing the doorman.
4.4 Concerning the author's claim that the purely symbolic nature of the
fine does not provide effective satisfaction or reparation, the State party
claims that the Convention cannot be interpreted to mean that it requires a
specific form of penalty (such as imprisonment or a fine) or a specific
severity or length (such as a non-suspended custodial penalty, a suspended
custodial penalty, a fine of a specific amount or the like) as the sanction
for specific types of acts of racial discrimination. In the State party's
view, it is not possible to infer a requirement of a penalty of a specific
type or severity from the wording of the Convention, the practice of the
Committee in its consideration of communications under article 14, or from
the general recommendations adopted by the Committee.
4.5 Violations of section 1 of the Act prohibiting discrimination on the
basis of race are punished with "a fine, lenient imprisonment or
imprisonment for a term not exceeding six months". In determining the
penalty within the maximum penalty provided for by the provision, the court
in question must take into account a multiplicity of elements. It thus
follows from section 80 (1) of the Danish Criminal Code that, in determining
the penalty, account shall be taken of the gravity of the offence and
information concerning the offender's character, including his general
personal and social circumstances, his conduct before and after the offence
and his motives in committing it.
4.6 Determination of suitable sanctions in specific cases falls within the
margin of appreciation of the State party. The national authorities have the
benefit of direct contact with all the persons concerned and are better able
to assess what is a suitable sanction in the specific case. Moreover, it
must be up to the State party to decide what sanction must be deemed
sufficiently deterrent and punitive. It is recognized, however, that the
margin of appreciation should not be exercised in a manner which would
impair the very essence of article 6 of the Convention.
4.7 The penalty imposed on the doorman in the present case accords with
domestic case law in similar cases and can be compared with the sanctions in
criminal cases concerning racist statements falling within section 266b of
the Criminal Code. It can therefore not be considered a fine of a "purely
symbolic nature".
4.8 In view of the foregoing, the State party is of the opinion that there
is no basis for alleging that article 2 (l) (d), article 5 (f) or article 6
of the Convention has been violated by the conduct of the criminal
proceedings against the doorman, as the judgement established that the
author had been the victim of a prohibited act of racial discrimination.
4.9 An individual who believes that he or she has been the subject of
discrimination in violation of the Act prohibiting discrimination on the
basis of race, interpreted in the light of the Convention, can, if relevant,
claim compensation for pecuniary or non-pecuniary damage from the offender.
However, the State party finds that it must be left to the individual State
party to determine the detailed procedural rules and rules of substance for
awarding compensation for non-pecuniary damage.
4.10 The right to "adequate reparation or satisfaction" is not an absolute
right, but may be subject to limitations. These limitations are permitted by
implication since such a right, by its very nature, calls for regulation by
the State. In this respect, the States parties enjoy a margin of
appreciation and can lay down limitations provided that those limitations do
not restrict or reduce the right in such a way or to such extent that its
very essence is impaired. In this respect guidance may be found in the
jurisprudence of the European Court of Human Rights.
4.11 The State party finds that the last part of article 6 of the Convention
is to be interpreted in the same way as article 5 (5) of the European
Convention for the Protection of Human Rights and Fundamental Freedoms. It
appears from the latter that everyone who has been the victim of arrest or
detention in contravention of its provisions "shall have an enforceable
right to compensation". In the interpretation of this provision the European
Court has established that the provision does not involve an unconditional
right to compensation, as the Contracting States have a right to demand that
certain conditions be satisfied. Thus, the Court has stated that the said
provision "does not prohibit the Contracting States from making the award of
compensation dependent upon the ability of the person concerned to show
damage resulting from the breach. In the context of article 5 (5) ... there
can be no question of 'compensation' where there is no pecuniary or
non-pecuniary damage to compensate" [FN1]
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[FN1] Wassink v. The Netherlands, judgement of 27 September 1990.
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4.12 It is thus the opinion of the State party that the Convention cannot be
interpreted to mean that a person who has been the subject of an act of
discrimination committed by another individual, including an act of
discrimination in violation of article 5 (f) of the Convention, always has a
claim for compensation for non-pecuniary damage. The fact that a person who
has committed such an act is actually prosecuted and convicted can in
certain cases constitute in itself "adequate reparation or satisfaction".
This view is supported, inter alia, by the interpretative statement
concerning article 6 of the Convention deposited by the United Kingdom when
signing the Convention. The statement in question says: "The United Kingdom
interprets the requirement in article 6 concerning 'reparation or
satisfaction' as being fulfilled if one or other of these forms of redress
is made available and interprets ' satisfaction' as including any form of
redress effective to bring the discriminatory conduct to an end".
4.13 According to Danish law, it is possible both in law and in fact to be
awarded compensation for pecuniary and non-pecuniary damage in case of acts
of racial discrimination committed by individuals in violation of the
Convention, but this presupposes that the conditions therefor are otherwise
satisfied.
4.14 Pursuant to section 26 (1) of the Act on Liability in Damages, a person
who is responsible for unlawful interference with another person's liberty,
invasion of his privacy, damage to his self-esteem or character or injury to
his person shall pay compensation for the damage to the injured person. The
provision is mandatory but the condition is that the unlawful act has
inflicted "damage" (in Danish tort) the injured party. Tort in the Danish
sense is damage to another person's self-esteem and character, that is, the
injured person's perception of his own worth and reputation. The humiliation
is what motivates the claim for compensation for nonpecuniary damage. It is
inherent in the requirement of " unlawful" damage that it must be culpable
and that it must be of some gravity. When determining the compensation, if
any, account must be taken of the gravity of the damage, the nature of the
act and the circumstances in general.
4.15 The decision of the Eastern High Court refusing compensation to the
author for nonpecuniary damage was based on a specific assessment of the
circumstances concerning the criminal act. Thus, the Court found that the
damage to the author's self-esteem had not been sufficiently grave or
humiliating to determine any compensation for non-pecuniary damage.
4.16 The fact that a person who has committed an act of racial
discrimination against another individual is actually prosecuted and
convicted can in certain cases constitute in itself "adequate reparation or
satisfaction". The judgement of the Eastern High Court accords with this
view when it states the following: "The Court further refers to the facts
that the doorman has been sentenced to a fine in respect of the refusal of
admittance, that the requisite determination and condemnation of the act has
thus been effected and that this has afforded the applicant sufficient
satisfaction".
4.17 It is thus the opinion of the State party in the specific case that the
fact that the doorman was sentenced to a fine for his refusal to admit the
author to the discotheque in question constitutes "adequate reparation or
satisfaction".
Counsel's Comments
5.1 In a submission dated 14 January 2000 counsel maintains that no
effective remedy has been granted to the author in order to comply with the
relevant provisions of the Convention, including article 6. In order to
implement the Convention conscientiously the States parties must be under an
obligation to ensure its effective observance. Sanctions for breaches of
national provisions implementing the Convention must be effective and not
only symbolic.
5.2 The State party argues that under Danish law it is possible to be
awarded compensation for pecuniary and non-pecuniary damage in case of acts
of racial discrimination in violation of the Convention committed by
individuals, but this predisposes that the conditions therefor are otherwise
satisfied. To counsel's knowledge no such court decisions exist. The present
case was the first in which a claim for compensation was examined by a
Danish court.
5.3 Furthermore, according to section 26 of the Danish Act on Liability
compensation is granted in accordance with other statutory provisions. As no
other statutory provisions exist in this field there would be no point in
awaiting coming court decisions.
5.4 The decision to refuse compensation implies, as a matter of fact, that
no compensation for non-pecuniary damages is granted in cases of racial
discrimination if the racial discrimination has taken place "politely" ;.
Such a position is not in conformity with the Convention.
Issues and Proceedings Before the Committee
6.1 As readily recognized by the State party the Committee considers that
the conditions for admissibility are satisfied. It therefore decides, under
rule 91 of its rules of procedure, that the communication is admissible.
6.2 The Committee considers that the conviction and punishment of the
perpetrator of a criminal act and the order to pay economic compensation to
the victim are legal sanctions with different functions and purposes. The
victim is not necessarily entitled to compensation in addition to the
criminal sanction of the perpetrator under all circumstances. However, in
accordance with article 6 of the Convention, the victim's claim for
compensation has to be considered in every case, including those cases where
no bodily harm has been inflicted but where the victim has suffered
humiliation, defamation or other attack against his/her reputation and self
esteem.
6.3 Being refused access to a place of service intended for the use of the
general public solely on the ground of a person's national or ethnic
background is a humiliating experience which, in the opinion of the
Committee, may merit economic compensation and cannot always be adequately
repaired or satisfied by merely imposing a criminal sanction on the
perpetrator.
7. While the Committee considers that the facts described in the present
communication disclose no violation of article 6 of the Convention by the
State party, the Committee recommends that the State party take the measures
necessary to ensure that the victims of racial discrimination seeking just
and adequate reparation or satisfaction in accordance with article 6 of the
Convention, including economic compensation, will have their claims
considered with due respect for situations where the discrimination has not
resulted in any physical damage but humiliation or similar suffering.
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