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 2002,
Having concluded its consideration of communication No. 15/1999, 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. The author of the communication, dated 4 August 2000, is M. B., a
Brazilian citizen with permanent residence in Denmark, born in Denmark on 25
January 1975. She claims to be a victim of a violation by Denmark of article
2, subparagraph 1 (d), and article 6 of the Convention. She is represented
The Facts Presented by the Petitioner
2.1 On 20 August 1999, at approximately 11:30 pm, the petitioner, her
brother, a Danish citizen of Brazilian origin and a friend, a black
Brazilian, were waiting to enter the restaurant-discotheque "Etcetera"
(hereafter, the restaurant), in the Centre of Copenhagen. The doorman,
Martin Andersen, told them, in Danish, that he could not let them enter
because the place was too crowded. Thinking that the doorman would inform
them whenever they could enter, they decided to wait in front of the
restaurant. When shortly after, a group of 7/8 people left the restaurant,
they were not invited to enter. Later, as they were the only ones waiting, a
group of 5/6 Danish people arrived and were immediately allowed to enter.
The doorman thereafter told the petitioner and her companions, in English:
"You should not wait." They then left the place.
2.2 On 16 September 1999, the Documentary and Advisory Centre for Racial
Discrimination in Copenhagen (DRC), an independent institution dealing with
racial discrimination issues, reported the incident to the Danish Police on
behalf of the petitioner. On 10 January 2000, the Police of Copenhagen
informed the DRC that it had decided not to carry out further investigation,
as it was found that the denial of entrance could have been due to other
reasons than racial discrimination, and regretted that the case had not been
reported earlier to the police. According to the same letter, the doorman of
the restaurant had been interrogated but did not remember anything and
stated that it was a practice of the restaurant to give priority to regular
guests. The Police added that any claim for damages should therefore be
pursued by civil proceedings.
2.3 On 25 January 2000, the DRC, on behalf of the petitioner, brought the
complaint to the District Public Prosecutor of Copenhagen. Referring to a
previous decision taken by the Committee in the case L.K. v. the
Netherlands, [FN1] it argued that the investigation led by the police could
not be considered as satisfactory since no further investigation had been
carried out in relation to the doorman's statements. In a decision dated 6
March 2000, the District Public Prosecutor informed the DRC that, since the
police had conducted a prompt investigation and interrogated of nearly all
persons involved, he had not found sufficient justification to overturn
their decision. He also regretted that the incident had not been reported
earlier to the police. Finally, he mentioned that different persons working
for the restaurant unanimously explained that it was usual to give priority
to regular guests and that, in the future, they would make this policy
clearer to other guests.
[FN1] Case No. 4/1991.
2.4 On 15 March 2000, the DRC asked the Attorney General whether further to
the statements explaining the practice of the restaurant to give priority to
regular guests, the police had investigated the ethnic background of regular
guests of the restaurant. On 12 May 2000, the District Public Prosecutor
responded that nothing indicated that there had been racial discrimination
since, on the night of 20 August 2000, the restaurant was well attended and
that such an investigation was therefore not necessary.
3.1 Counsel for the petitioner argues that the State party has violated its
obligations under article 2, subparagraph 1 (d) and article 6 of the
Convention. Referring to the Committee's jurisprudence in the cases L. K. v.
the Netherlands [FN2] and Habassi v. Denmark, [FN3] he further explains that
these provisions imply positive obligations for States parties to take
effective action further to such reported incidents, including an
investigation into the real reasons behind the "treatment" of the petitioner
in order to ascertain whether or not criteria involving racial
discrimination have been applied.
[FN2] Case No. 4/1991.
[FN3] Case No. 10/1997.
3.2 In the present case, counsel for the petitioner argues that the State
party has failed to conduct a proper investigation. In particular, three
important questions have not been addressed by the Danish authorities in
The mere fact that the employees of the restaurant have stated that there
was no racial discrimination does not give an answer as to whether racial
discrimination has effectively taken place.
The Police have not investigated the ethnic background of regular guests of
How is it possible to become regular guest if one is not allowed entrance in
the first place?
3.3 Counsel also argues that although only intentional racial discrimination
is criminalized under Danish law, it would have been appropriate for the
Police to assess whether the alleged racial discrimination was intentional
or unintentional and that the State party should explain on which evidence
the Police based their conclusions other than the information received from
the restaurant employees.
3.4 Counsel further points out to a departmental notice of the Copenhagen
Police related to investigations on alleged racial discrimination, which
expressly comprises "possible arbitrary interrogation of visitors (for
instance if the allegation is that only members or regular clients are let
in)". The Police have however not made such an investigation, which is,
according to counsel, the usual practice of the Copenhagen Police in similar
cases, regardless whether the incident has been reported immediately.
3.5 Counsel finally confirms that domestic remedies have been exhausted and
that the matter is not pending before another procedure of international
investigation or settlement.
Observations by the State Party
4.1 In a submission dated 13 December 2000, the State party sent
observations both on the admissibility and the merits of the communication.
4.2 The State party contends that the investigation carried out in the
present case "fully satisf[ies] the requirements that can be inferred from
the Convention as interpreted by the Committee's practice" and is in
accordance with the principles laid down in the Committee's previous
opinions on cases related to the implementation of the alleged violated
articles of the Convention.
4.3 The State party notes that the Copenhagen Police conducted thorough and
detailed interviews of all persons involved in the case, except the
petitioner's Brazilian friend, and this, despite increased difficulties
resulting from the delay in reporting the incident. Moreover, considering
the unanimous statements made by the three people working for the restaurant
and the statement by the petitioner that the place was well-attended on the
night of the incident, the State party is of the opinion that the steps
taken by the Copenhagen Police were sufficient to determine whether racial
discrimination had taken place.
4.4 The State party also points out that had the incident been reported
immediately, the police could have investigated whether the group of persons
who were allowed to enter before the petitioner and her companions were
indeed regular guests. In this respect, the State party notes that the
departmental notice referred to by counsel prescribes a description and an
inspection of the site, including interviews of the clientele, only when the
police are present at the place immediately after an incident of racial
discrimination has occurred, which was not the case in the present
4.5 With regard to the petitioner's claim that the police should have
investigated the ethnic background of the guests present in the restaurant,
the State party argues that the purpose of the investigation is to assess
whether the conditions of the criminal offence are fulfilled in the present
case and that the ethnic background of regular guests of the restaurant in
general is independent from this assessment.
4.6 With regard to the question as to how it is possible to become regular
guest of the restaurant if one is not allowed to enter in the first place,
the State party contends that the answer to this question has no bearing on
the issue whether racial discrimination has effectively taken place in this
4.7 With regard to the distinction between intentional and unintentional
discrimination, the State party notes that only intentional racial
discrimination entails criminal liability in Denmark and that the police was
therefore not under a duty to investigate whether alleged racial
discrimination could had been unintentional.
4.8 Finally, the State party notes that, although it had not been mentioned
in the decisions taken by both the Copenhagen Police and the District Public
Prosecutor, the petitioner's brother had expressly stated that, on the night
of the incident, both Danes and foreigners were present in the restaurant.
This demonstrates that no act of racial discrimination had been committed in
the restaurant on the night of the incident and supports the decision taken
by the Danish authorities to discontinue the investigation.
4.9 For the above reasons, the State party considers that the communication
is inadmissible because the petitioner has failed to establish a prima facie
case. However, if the Committee were to consider the case admissible, the
State party submits that article 2, subparagraph 1(d) and article 6 of the
Convention have not been violated.
Comments by the Petitioner
5.1 In a submission dated 24 January 2001, counsel for the petitioner
mentions a 2000 report made by the Copenhagen Police concerning a number of
situations where the police had not challenged the doormen's explanations.
According to the said report, ethnic minorities can expect that the police
"() inspect the site to state whether discrimination has taken place" [and]
"[i]t can be difficult to see from a place and its guests whether there is a
group which can be called 'regular clients'. The police can, however, by
questioning at the place investigate this. It should also be investigated
whether there are ethnic minorities amongst the 'regular clients'"
(translated from Danish by the petitioner). Furthermore, counsel considers
that an immediate report of the incident would not have significantly
changed the possibilities of investigation since the issue in this case was
over the existence of a regular practice of the restaurant to give priority
to regular guest, which could have been investigated at any time.
5.2 With regard to the departmental notice referred to under 3.4 and 4.4,
counsel argues that the fact that it does not prescribe a description and
inspection of the site if the Police is not present at the place immediately
after an incident of alleged racial discrimination has occurred cannot
justify any lack of investigation in contravention with the Convention.
5.3 Counsel agrees that only intentional acts of racial discrimination
constitute a criminal offence under Danish legislation but notes that racial
discrimination by negligence is nevertheless also in violation of the
Convention. He therefore maintains that the Police should have investigated
unintentional acts of racial discrimination.
5.4 Finally, counsel states that the statement by the petitioner's brother
according to which there were both Danes and foreigners in the restaurant on
the night of the incident does not necessarily lead to the conclusion that
racial discrimination has not taken place. Moreover, it is submitted by
counsel that a number of Danish discotheques have so called "immigration
Consideration of Admissibility
6. At its 59th session, the Committee examined the admissibility of the
communication and duly considered the contention by the State party that the
communication was inadmissible because the petitioner has failed to
establish a prima facie case but concluded that in view of the elements
brought before it by the petitioner, the communication satisfied the
conditions for admissibility. It thus declared the communication admissible
on 13 August 2001.
Additional Observations by the State Party
7.1 By Note Verbale of 23 January 2002, the State party made additional
observations on the merits of the case.
7.2 The State party first draws the attention of the Committee on the nature
of the document referred to as the "2000 report" in paragraph 5.1. The said
document is not a report that gives an account of concrete situations where
explanations given by discotheque's doormen on allegations of discriminatory
practice have not been challenged; it is draft entitled "Strategy against
Discrimination" elaborated in cooperation with the Documentation and
Advisory Centre on Racial Discrimination in order to give guidelines to
police officers to combat discrimination and racism. The document contains a
non-exhaustive list of examples of the most common reasons for denying
access to places like discotheques and describes what the police do or
should do when they have to deal with such cases. The document also reflects
the high priority given by the Copenhagen Police to the education of police
officers on issues related to discrimination.
7.3 The State party further reiterates that, in the present case, the
doorman's explanations have indeed been challenged as all the persons
involved, except the Brazilian's friend, have been interviewed by the
7.4 Finally, the State party emphasizes that the factual circumstances of
the case have been reflected very briefly in the admissibility decision
taken by the Committee and does not give a true and fair impression of the
extent of the police investigation.
Consideration of the Merits
8. Acting under article 14, paragraph 7 (a), of the International Convention
on the Elimination of All Forms of Racial Discrimination, the Committee has
considered all the information submitted by the petitioner and the State
9. Due to the abovementioned specific circumstances of the case, the police
could not accomplish a complete and in-depth investigation of the case.
Therefore, the Committee has no elements at its disposal which would allow
it to conclude that a violation by the State party of the provisions of the
Convention has indeed taken place in this case.
10. However, the Committee wishes to emphasize the importance it attaches to
the duty of the State party and, for that matter, of all States parties, to
remain vigilant, in particular by prompt and effective police investigations
of complaints, that the right established under article 5, paragraph f, is
enjoyed without discrimination by all persons, nationals or foreigners,
under the jurisdiction of the State party.
[Done in English, French and Spanish, the English text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.]