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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 13 August 2002,
Having concluded its consideration of communication No. 23/2002, 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 petitioner and the State party,
Adopts the following:
Decision on Admissibility
1. The petitioner is Ms. K. R. C., a citizen of the United States, currently
residing as a permanent resident in Denmark. She claims to be a victim of a
violation by Denmark of articles 2, paragraph 1 (d), and 6, of the
International Convention on the Elimination of All Forms of Racial
Discrimination. She is represented by counsel.
The Facts as Presented by the Petitioner
2.1 In June 2000, the petitioner purchased a car at Brandt's Auto, in
Denmark. The car dealers suggested approaching Sparekassen Vestsjælland
("the bank"), with which Brandt's Auto cooperated, for a loan. The
petitioner thus contacted the bank for a loan application form. On 27 June
2000, she received the loan application form together with a letter from the
bank.
2.2 As part of the standard information in the loan form it was indicated
that the person applying for a loan was to declare "that I am a Danish
citizen". Further the letter accompanying the application form stated: "You
are kindly requested to hand in the application duly filled in, and enclose
a copy of your Danish passport to the sales agent". As the petitioner is not
a Danish citizen she was not able to sign the application form.
2.3 On 28 of June 2000, the petitioner contacted the bank, explained that
she was an American citizen, and asked whether this would have any influence
on her application. She was informed that if one did not have Danish
citizenship, one could not apply for a loan. After having received this
information, the petitioner contacted a friend who similarly requested of
the bank whether it was correct that non-Danish citizens could not apply for
a car-loan in the bank. She was informed that this was correct, and that the
reason was that the bank did not have any possibilities of collecting the
loan if the individual left the country with the car. The petitioner's
friend informed the bank that the petitioner had lived in Denmark for the
last 9 years, that she was from the USA, had had permanent employment for
the last 8 years, and was just about to start in a new job at Novo Nordisk.
The employee at the bank responded that she would talk to her superior and
get back with an answer.
2.4 On the same day, the deputy head of the bank informed the petitioner's
friend that the bank did not give loans to non-Danish citizens. However, as
the petitioner was about to start as an employee at Novo Nordisk, he would
try to find a solution and requested of the petitioner to send the loan form
together with evidence of her annual income to the bank. The petitioner did
not send the application back as she believed that her chances of loan
approval were slim. She applied and got a car-loan from her own bank, which
cost 1% more than the potential loan from the bank.
2.5 Following this incident, the petitioner reported the incident to the
Documentation and Advisory Centre on Racial Discrimination ("DRC") [FN1] in
Copenhagen. The DRC informed the bank that it was prohibited to request and
use information about a person's citizenship when handling loan
applications, and requested the bank to remove the requirement of
citizenship in the application form in question, and in future application
forms. The bank responded that it was not of the view that this requirement
was illegal, that although it may appear from the form that citizenship is
an invariable criterion to receiving loan approval, this is not the case,
but that nevertheless, it would remove this criterion from the forms.
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[FN1] The Documentation and Advisory Centre on Racial Discrimination is an
independent institution working with racial discrimination under relevant
rules of international law. The Documentation and Advisory Centre on Racial
Discrimination carries out fact finding in reported cases of racial
discrimination and gives advice, guidance and legal assistance to persons
who claim to be victims of racial discrimination or have witnessed racial
discrimination.
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2.6 By letter dated 6 September 2000, the DRC wrote to the bank and
requested it to compensate the difference between the potential loan at the
bank and the loan she received from the petitioner's own bank - a difference
of 10180 dkr [FN2]. In a letter of 12 September 2000, the bank replied that
it was still of the opinion that the requirement of citizenship was not
illegal, and that they did actually offer the petitioner the loan, and hence
they had no obligation to provide her with compensation.
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[FN2] This amounts to around 1,990.34 CHF.
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2.7 In a letter of 25 September 2000, the DRC pointed out that the bank had
made no offer of a loan to the petitioner and that given the response by the
bank to the petitioner -that the bank did not offer loans to non-Danish
citizens -it was fully understandable that the petitioner had not returned
the loan application as she had no grounds to believe she would be granted
the loan. The DRC thus insisted that the bank compensate the petitioner. It
further stressed that if the bank refused to offer compensation, a complaint
would be filed with the police.
2.8 By letter of 12 October 2000, the bank denied the request for
compensation, informed the DRC that it had several foreign citizens who were
granted loan approval and suggested that the petitioner move the loan to the
bank. The bank did not agree to cover the expenses for transferring the
loan.
2.9 On 8 October 2000, the DRC reported the incident to the police
department in Holbæk, expressing the view that the treatment of the
petitioner violated the Danish Act on the prohibition of differential
treatment on the basis of race ("the Act against Discrimination"), which, it
claims, partly implements the ICERD into Danish law. By letter of 1 February
2001, the police informed the DRC that the investigation of the case had
been discontinued, as it considered that there was no reasonable evidence
that an unlawful act had been committed. The police based its decision on
the belief that the petitioner "was offered the loan on June 28, 2000 by the
bank when she was asked to hand in her contract of employment and evidence
of her annual income, to use with the normal assessment of applications.
Because of time constraints she did not send the requested papers, but
instead took a loan in another bank. Under these circumstances, it is my
perception that there is no bases to press charges in the case, hence the
investigation has been discontinued."
2.10 By letter of 28 February 2001, the DRC, on behalf of the petitioner,
complained to the Public Prosecutor for Sealand, claiming that the
petitioner had not been treated on the same basis as Danes, because of her
ethnic origin. She thereby suffered an economic loss and a violation of her
integrity. In a letter of 10 July 2001, the Public Prosecutor informed the
DRC that he did not see any reason for changing the police decision.
The Complaint
3.1 The petitioner claims that she has exhausted domestic remedies as there
is neither a possibility of appealing the decision of the Public Prosecutor
nor of bringing the case before the Danish Courts.
3.2 The petitioner also confirms that the subject of this communication has
not nor is currently being examined by another international instance.
3.3 The petitioner claims that the State party has violated its obligations
under article 2, subparagraph 1 (d), and 6, of the Convention in not
effectively investigating the reported incident of racial discrimination.
The petitioner argues that following the decision of the CERD in L.K v. The
Netherlands [FN3] the States parties under these provisions have a positive
obligation to take effective action against reported incidents of racial
discrimination. Alleged cases of discrimination must be taken seriously and
must be investigated thoroughly by the national authorities.
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[FN3] Case No. 4/1991, Views adopted on 16 March 1993.
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3.4 The petitioner argues that although article 1, paragraph 2, stipulates
that distinctions based on citizenship are not as such comprised within the
definition of discrimination, if the application of a citizenship criterion
in fact constitutes a distinction on the basis of, for example, national
origin or colour, it may amount to discrimination within the terms of
article 1, paragraph 1. In addition, the petitioner argues that if the
application of the criterion of citizenship has the effect of discriminating
against a person on the bases of his race, national origin or colour, it may
also constitute discrimination for the purposes of article 1, paragraph 1,
of the Convention. In this regard, the petitioner refers to the case of
Habassi v. Denmark. [FN4]
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[FN4] Case No. 10/1997, Views adopted on 17 March 1999.
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3.5 According to the petitioner, there is no indication that the police
interviewed the parties involved, nor did they include anything else to
support their decision, accept the material provided by the DRC in its
complain to the police. In particular, the petitioner argues that the
following issues should have been examined: first, to what extent were
persons applying for loans requested to show their passports; second, to
what extent does the bank grant loans to non-Danish citizens; third, on what
grounds did the bank inform the petitioner that non-Danish citizens could
not apply for a loan; fourth, to what extent does the bank grant loans to
Danish citizens living abroad; fifth, whether an act of indirect and
unintentional discrimination had taken place.
3.6 According to the petitioner, if loans were granted to citizens living
abroad, the criterion of citizenship would in fact constitute racial
discrimination or an act of discrimination on the basis of national origin
or colour.
The State Party's Submission on the Admissibility and Merits of the
Communication
4.1 By letter of 25 March 2002, the State party made its submission on the
admissibility and merits of the communication. On admissibility, the State
party confirms that in relation to remedies under criminal law, the
petitioner has exhausted domestic remedies. However, it argues that the
petitioner has not exhausted all of the civil remedies available to her and
therefore the communication should be declared inadmissible, under article
14, paragraph 7 (a), of the Convention as read with Rule 91 (e) of the rules
of procedure.
4.2 According to the State party, the petitioner could have brought an
action against the bank, claiming that it acted in contravention of the law
by exposing the petitioner to racial discrimination, and the petitioner can
also claim damages for both pecuniary and non-pecuniary loss. According to
the State party, this possibility is available whether or not the Public
Prosecutor chooses to investigate the same matter or discontinues an
investigation.
4.3 In its argument, the State party refers to the communication of Habassi
v. Denmark where the Committee held, among other things, that the bringing
of a civil action in a case of alleged discrimination contrary to the Act
against Discrimination was not, in that particular case, an effective
remedy. In that case, the petitioner claimed that a criminal act of
discrimination had been committed, and the Committee attached decisive
importance to the fact that the institution of civil proceedings could only
lead to damages for non-pecuniary loss. The petitioner had not suffered a
financial loss as the loan was subsequently granted in the wife's name.
4.4 In the case at hand, the petitioner claims to have suffered a financial
loss, after obtaining a loan in another bank at a higher rate of interest.
On her behalf, the DRC requested compensation from the bank and in fact told
the bank that it would only report the incident to the police if the
petitioner were not granted compensation. In addition, the State party
argues that through such an action the petitioner could have established
whether she had been exposed to discrimination at the same time as receiving
redress. If the petitioner had been able to prove on the balance of
probabilities that she had been exposed to discrimination on the basis of
race etc. it would be up to the defendant to substantiate, under the general
rules of Danish law, on the burden of proof and standard of evidence, that
the discrimination was not unlawful.
4.5 Furthermore, the State party claims that the petitioner could have
instituted an action against the bank under the rules of the Danish
Marketing Practices Act, as a private business may not perform acts contrary
to "good marketing practices". In this case, the petitioner could have
argued that the bank acted in contravention of the Act against
Discrimination in its treatment of her loan application and that the bank
had thus also acted in contravention of "good marketing practices". In this
regard, the State party points to statements made by the Consumer Ombudsman
who stated in a letter to the DRC that if discrimination contrary to the Act
against Discrimination or the ICERD occurred, such discrimination might at
the same time be a violation of section 1 of the Marketing Practices Act. If
a violation of this act is found it may give rise to a liability in damages.
4.6 On the merits, the State party contests that the investigations carried
out by the State party were inadequate. In its view, they were carried out
with due diligence and expedition and were sufficient to determine whether
or not an act of racial discrimination had taken place [FN5]. According to
the State party, as part of its investigation, the police examined all the
documentation attached to the report lodged on the petitioners behalf, the
correspondence between the DRC and the bank, and interviewed the employee of
the bank who had spoken to the petitioner. During this interview, they were
informed of the bank's views on the specific case and provided with
information on the loan policy of the bank generally, including the use of
nationality as a criterion.
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[FN5] The State party refers to the Committee's jurisprudence on this issue:
Case No. 1/84, A. Yilmaz v. the Netherlands, Views adopted on 10 August
1988, Case No. 4/1991, L.K. v. the Netherlands, Views adopted on 16 March
1993, Case No. 10/1997, Habassi v. Denmark, Views adopted on 17 March 1999,
and Case No. 16/1999, Ahmad v. Denmark, Views adopted on 13 March 2000.
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4.7 In response to the petitioner's claim that certain issues (outlined in
paragraph 3.5) were not raised by the investigation authorities, the State
party responds as follows. On the issue of whether the authorities should
have requested information on the extent to which other applicants were
requested for a copy of their Danish passport, and the extent to which the
bank had granted loans to foreigners and Danish nationals abroad, the State
party is of the view that it was not the task of the police to investigate
the policy of the bank generally as it relates to the request for passports
or the granting of loans to foreigners, but rather whether the bank violated
the Act against Discrimination with respect to the petitioner's loan
application.
4.8 On the issue why the police did not investigate the grounds upon which
the petitioner was informed that she could not apply for a loan, the State
party notes that both the police and the Public Prosecutor found that the
petitioner had been offered a loan and that, in addition, the Public
Prosecutor emphasised that the information concerned was given by
telephone/orally, where it may be difficult in connection with criminal
proceedings to prove what was in fact said – including whether what was said
was taken out of context. He also found that he could not preclude the
possibility that the information on nationality was provided as a piece of
information among other elements in credit assessment and not an expression
of a condition. According to the State party, this position is clearly
supported by the police interview of the bank's employee.
4.9 On the question as to whether the authorities should have investigated
whether indirect and unintentional discrimination had taken place the State
party argues that the Act against Discrimination only covers intentional
violations and does not distinguish between direct and indirect
discrimination.
4.10 The State party submits that not only does the Government find that the
police conducted a serious and thorough investigation but that the Public
Prosecutor correctly assessed the case. The State party explains that
Article 1 of the Act against Discrimination comprises cases where a person
"refuses to serve" another person on the same conditions as others due to
race etc. The State party notes that the petitioner believed that her
chances of obtaining a loan were slim and that therefore she did not forward
the application to the bank. However, it appears from the investigations
that the petitioner received no definitive answer on whether her non-Danish
nationality would be used against her in its credit assessment. The
petitioner's only direct contact with the bank took place on 28 June 2000,
which was an introductory inquiry ending in a request to forward a loan
application. The State party argues that as the petitioner did not actually
forward her loan application to the bank it was never in a position to
refuse the application and therefore did not refuse to serve her on the same
conditions as others.
Comments by the Petitioner
5.1 On the State party's reference to the Habassi v. Denmark [FN6]
communication, the petitioner contests that the facts of this case differ
substantially. In the opinion of the petitioner, the objective of the
complaint was not, as the State party claims, to seek compensation. In her
opinion, it is clear from the complaint sent to the police from the DRC
which states that it believes that the bank had violated the Act against
Discrimination.
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[FN6] Supra
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5.2 On the issue of the possibility of taking an action under the Marketing
Practices Act, the petitioner asserts that the DRC also requested the police
to investigate under this act. Subsequently, in a letter from the Ombudsman
to the DRC it was stated that the inclusion of the question of citizenship
with regard to credit assessment violates the rules of the Marketing
Practises Act [FN7]. Therefore, in the petitioner's view domestic remedies
have been exhausted in this case.
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[FN7] The petitioner makes no reference to the question of compensation in
this regard.
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Issues and Proceedings Before the Committee
6.1 Before considering any claims contained in a communication, the
Committee on the Elimination of Racial Discrimination must, in accordance
with rule 91 of its rules of procedure, decide whether or not it is
admissible under the Convention.
6.2 The Committee notes that the petitioner received a loan application form
from Sparekassen Vestsjælland [Vestsjælland Savings Bank], containing the
clause against which she objects, but that she was subsequently orally
informed that the bank's assistant director would try to find a solution,
since she was going to be employed by Novo Nordisk (paras. 2.3 and 2.4).
However, the petitioner did not send in the application form, believing that
she had only a slight chance of obtaining the loan. Considering the
petitioner's lack of perseverance and notwithstanding the eventual
deficiencies in the bank's form, the act of refusal by the bank which,
according to the petitioner, would have been contrary to the provisions of
the International Convention on the Elimination of All Forms of Racial
Discrimination, was not accomplished. In the absence of the establishment of
the existence of the facts giving rise to the complaint, the Committee
concludes that the communication is inadmissible.
6.3 The Committee on the Elimination of Racial Discrimination therefore
decides:
(a) That the communication is inadmissible;
(b) That this decision shall be transmitted to the State party and to the
petitioner
[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.]
* The following members of the Committee participated in the examination of
the present communication: Mr. Mahmoud Aboul-Nasr, Mr. Nourredine Amir, Mr.
Marc Bossuyt, Mr. Ion Diaconu, Mr. Mohamed Aly Thiam, Mr. Régis de Gouttes,
Mr. Kurt Herndl, Ms. Patricia Nozipho January-Bardill, Mr. José Augusto
Lindgren Alves, Mr. Raghavan Vasudevan Pillai, Mr. Yuri A. Rechetov, Mr.
Agha Shahi, Mr. Linos Alexander Sicilianos, Mr. Patrick Thornberry, Mr. Luis
Valencia Rodriguez, Mr. Tang Chengyuan, Mr. Mario Jorge Yutzis.
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