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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 21 March 2001,
Adopts the following:
Decision on Admissibility
1. The author of the communication, Mr. F.A., claims to be the victim of a
violation of the Convention by Norway. He is represented by the
non-governmental organization Organisasjonen Mot Offentlig Diskriminering (OMOD).
OMOD brought the general situation to the attention of the Committee for the
first time on 6 December 1999. In a letter dated 12 April 2000 OMOD
submitted additional information and formally requested that the Committee
consider the communication under article 14 of the Convention. The
communication was transmitted to the State party on 13 September 2000.
The Facts as Submitted by the Author
2.1 The author reported that he went to the housing agency "Eiendom Service"
and paid a fee which entitled him to have access to the lists of vacant
accommodation. In checking the lists he found that about half of the housing
advertisements clearly indicated that persons from certain groups were not
desired as tenants. Statements like "no foreigners desired", "whites only",
"only Norwegians with permanent jobs" punctuated the housing lists.
2.2 On 28 June 1995 the author informed the Oslo police about this situation
and requested that charges be brought against the owner of the agency on the
basis of section 349a of the Norwegian Penal Code, which reads as follows:
"Any person who in an occupational or similar activity refuses any person
goods or services on the same conditions as apply to others because of his
religion, race, colour of skin, or national or ethnic origin, shall be
liable to fines or imprisonment for a term not exceeding six months ...
The same penalty shall also apply to any person who incites or is in any
other way accessory to any act mentioned in the previous paragraph."
2.3 The police took more than two years to investigate the case. During that
time they never visited the housing agency in question in order to collect
evidence. Finally, on 3 December 1997, the police ordered the agency's owner
to pay NKr 5,000, or alternatively to serve 10 days in prison, for
contravention of section 349a of the Penal Code. The decision was based on
the fact that in the period between December 1995 and January 1996 the
owner, through her firm, Eiendoms Service, had sold lists of accommodation
to rent in which it was stated that certain accommodation was only available
to Norwegians in regular employment.
2.4 The owner appealed the decision to the Oslo City Court, which, in a
judgement of 15 July 1998, decided to acquit her. An appeal against this
judgement was filed with the High Court, which rejected it on 18 January
1999. The High Court noted that although the situation fell under section
349a of the Penal Code, the owner had acted in involuntary ignorance of the
law. The case was further appealed to the Norwegian Supreme Court, which, in
a ruling of 27 August 1999, declared that the acts in question were not
covered by section 349a and rejected the appeal.
The Complaint
3. The author claims that the facts described amount to violation by the
State party of the rights to which he is entitled under article 1, paragraph
1, of the Convention.
Observations Submitted by the State Party
4.1 By submission of 13 December 2000 the State party challenges the
admissibility of the communication. It claims that the author has failed to
file a communication within the time limit set out in rule 91 (f) of the
Committee's rules of procedure. This provision reads as follows: "With a
view to reaching a decision on the admissibility of a communication, the
Committee ... shall ascertain: ... (f) That the communication is, except in
the case of duly verified exceptional circumstances, submitted within six
months after all available domestic remedies have been exhausted". The
Supreme Court's judgement was delivered on 27 August 1999. The author, who
was an OMOD employee, knew about it on the same date. Therefore, the
communication should have been submitted to the Committee no later than 27
February 2000.
4.2 The State party claims that the letter from OMOD of 6 December 1999 is
purely of a general nature and devoid of any content that may help to
qualify it as a communication from or on behalf of an alleged victim of a
violation. The author's name is not even mentioned in it. The letter does
draw the Committee's attention to the Supreme Court's judgement of 27 August
1999, however, this is not sufficient to turn it into an individual
communication. Furthermore, the author was not a party to the criminal
proceedings, which were based on charges of a general nature initiated by
OMOD and not linked to alleged wrongdoings against Mr. F. A. Moreover, the
issues raised in the letter were dealt with in the dialogue between the
Committee and the State party under the Committee's reporting procedure.
They are also being seriously addressed by the Norwegian authorities.
4.3 The State party further argues that the allegation of violation of the
Convention is not satisfactorily substantiated for the purpose of
admissibility. For instance, the letters of 6 December 1999 and 12 April
2000 do not indicate the provisions of the Convention allegedly violated or
the precise object of the communication. In these circumstances, it is not
possible for the State to provide an adequate response. Neither is it
explained in the letters whether the alleged violation is related to the
landlords' discrimination or to the agency's activity. In respect of the
former, it would be important to know whether the accommodation in question
is in the landlords' private houses or whether it was rented out as part of
a larger commercial activity. In respect of the latter, the Norwegian courts
considered that the firm Eiendoms Service did not discriminate against its
customers.
4.4 The High Court judgement describes the modus operandi of the firm, an
agency for private accommodation rentals. According to the judgement,
landlords informed the agency of the accommodation available and the agency
listed the offers in a card-index which provided factual information on the
accommodation offered. A rubric called "Landlord's wishes" was also included
in the card-index. If the accommodation-hunters were interested in a
particular offer in the card-index they had to contact the landlord
themselves for any further action. Eiendoms Service was not involved in
showings, preparation of contracts, etc. The Court found that certain
landlords who made use of Eiendoms Service had rejected persons of foreign
origin as tenants; however, Eiendoms Service did not have any responsibility
in respect of the landlord's preferences. The Court considered that section
349a of the Penal Code as supported by the travaux preparatoires did not
apply to the services offered by a private landlord when a business person
is the agent for those services. There was no evidence that the agency's
owner had any objections or prejudice against, for example, people with a
different skin colour. On the contrary, she had often assisted foreigners in
finding accommodation. The State party claims that the author has not
explained the reasons why he disagrees with the Court's conclusions.
Counsel's Comments
5.1 Counsel refers to the objections raised by the State party on the basis
of rule 91 (f) of the Committee's rules of procedure and argues that the
possible shortcomings pointed out by the State party should not exceed what
one can expect from a small NGO without legal expertise such as OMOD.
Protection from violations by way of bodies like CERD should be an option
for everybody, not only for people with legal expertise.
5.2 The purpose of the letter from OMOD dated 6 December 1999 was to request
the Committee to treat the Supreme Court judgement of 27 August 1999 as an
individual complaint under article 14 of the Convention. In the letter, OMOD
explicitly requested the Committee to carry out an individual evaluation of
the Supreme Court's ruling in relation to the Convention. If the
communication was only meant as a general communication from an NGO, as
suggested by the State party, it would have been included in the report
which OMOD prepares regularly in response to Norway's periodic reports to
the Committee. It is true that the author used the opportunity to point to
possible large-scale consequences which the judgement may have with regard
to the protection of ethnic minorities against racial discrimination and the
status of the Convention in Norway. This information, however, should be
interpreted as complementary to the individual complaint put forward.
5.3 The letter from OMOD dated 12 April 2000 confirmed that the purpose of
its letter of 6 December 1999 was to have the judgement treated as an
individual complaint under article 14 of the Convention, and should be
regarded as part of the communication submitted on 6 December 1999.
5.4 Counsel agrees that the letter of 6 December 1999 did not indicate the
provisions in the Convention that had been violated. However, he considers
that the allegations of violations of the Convention should be enough to
declare the case admissible. In the letter of 12 April 2000 OMOD claims that
the Supreme Court, in its judgement "refused to give F.A. the rights
inherent in article 1.1". Among those rights are the rights referred to in
article 5 (e) (iii), 5 (f) and 6, which are especially relevant to the case
of Mr. F.A. Furthermore, it was Mr. F.A. who reported Eiendoms Service to
the police. Subsequently, the police brought the case to the High Court and
the Supreme Court.
5.5 Counsel claims that the object of the communication is the failure of
the Supreme Court to comply with its obligations under the Convention. He
also claims that the alleged violation of the Convention is related to the
activities of the housing agency, not the landlords.
5.6 Regarding the State party's claim that OMOD did not substantiate its
claim that the conclusion of the Supreme Court was unwarranted, counsel
argues that the agency's owner indeed refused a person "goods or services on
the terms applicable to others". The author was not at all offered the same
service as ethnic Norwegians. In fact, he was offered a smaller number of
vacant flats than other customers owing to his ethnic origin, yet he had to
pay exactly the same fee to have access to the index cards. Furthermore, the
author was not informed beforehand that this was the case. This difference
in treatment is illegal, regardless of whether it is made on behalf of
somebody else, for example a landlord. The owner of the housing agency had
written the discriminatory texts on the index cards and knew what that meant
to persons of minority background.
5.7 Counsel further argues that the commercial activity of Eiendoms Service
cannot be categorized as being within "the private sphere". The agency
offered a general service to the public which fits the description of
article 5 (f) of the Convention. The activity of Eiendoms Service is
therefore a clear case of discrimination in the public sphere, not the
private one.
Admissibility Considerations
6.1 Before considering the substance of a communication, the Committee on
the Elimination of Racial Discrimination examines whether or not the
communication is admissible pursuant to article 14, paragraph 7 (a) of the
Convention and rules 86 and 91 of its rules of procedure.
6.2 The State party contends that the author's claims are inadmissible
because of his failure to submit a communication within the time limit set
out in rule 91 (f) of the Committee's rules of procedure. The Committee
recalls that, according to this provision, communications must be submitted
to it, except in the case of duly verified exceptional circumstances, within
six months after all available domestic remedies have been exhausted.
6.3 The Committee notes that the Norwegian Supreme Court adopted its final
decision on the facts that constitute the object of the present
communication on 27 August 1999. The author submitted the communication
under article 14 of the Convention on 12 April 2000, i.e. more than six
months after the date of exhaustion of domestic remedies. Prior to that
date, on 6 December 1999, the decision of the Norwegian Supreme Court had
been brought to the Committee's attention, but there was no indication that
the author had intended to submit a communication under article 14 of the
Convention. The general terms in which the letter of 6 December 1999 was
drafted suggested that the author wished to submit the facts for the
consideration of the Committee within the framework of its activities under
article 9 of the Convention.
6.4 Furthermore, the Committee has found no exceptional circumstances that
would justify not applying the six-month requirement stipulated in rule 91
(f) of the rules of procedure.
7. The Committee on the Elimination of Racial Discrimination therefore
decides:
(a) That the communication is inadmissible;
(b) That this decision shall be communicated to the State party and the
author of the communication.
8. The Committee takes this opportunity to urge the State party to take
effective measures to ensure that housing agencies refrain from engaging in
discriminatory practices and do not accept submissions from private
landlords which would discriminate on racial grounds. The Committee recalls
in this respect its concluding observations on the fifteenth periodic report
of Norway, in which it expressed concern that persons seeking to rent or
purchase apartments and houses were not adequately protected against racial
discrimination on the part of the private sector. In this connection, the
Committee recommended that Norway give full effect to its obligations under
article 5 (e) (iii) of the Convention.
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