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Decision on
Admissibility
1.1 The petitioner is Mr. Ahmad Najaati Sadic, a Danish citizen of Iraqi
origin, born in 1955, who claims to be a victim of violations by Denmark of
article 2, paragraph 1 (d), and article 6 of the Convention. He is
represented by counsel, the Documentation and Advisory Centre on Racial
Discrimination (DRC).
1.2 In conformity with article 14, paragraph 6 (a), of the Convention, the
Committee transmitted the communication to the State party on 16 August
2002.
Facts of the Case
2.1 On 25 July 2000, the petitioner was working on a construction site in a
public housing area in Randers, Denmark, for the company "Assentoft Painters
and Decorators" owned by Jesper Christensen. When the petitioner approached
Mr. Christensen to claim overdue payments, their conversation developed into
an argument during which Mr. Christensen reportedly made the following
comments to the petitioner: "Push off home, you Arab pig", "Immigrant pig",
"Both you and all Arabs smell", "Disappear from here, God damned idiots and
psychopaths." The argument between the complainant and Mr. Christensen was
overheard by at least two other workers, Mr. Carsten Thomassen and Mr. Frank
Lasse Hendriksen.
2.2 On 1 March 2001, the DRC, on behalf of the petitioner, informed the
police in Ĺarhus of the incident, arguing that section 266 b [FN1] of the
Danish Criminal Code had been violated by the petitioner's by then former
employer.
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[FN1] Section 266 b of the Criminal Code reads, in pertinent parts:
"(1) Any person who, publicly or with the intention of wider dissemination,
makes a statement or imparts other information by which a group of people
are threatened, insulted or degraded on account of their race, colour,
national or ethnic origin, religion, or sexual inclination shall be liable
to a fine or to imprisonment for any term not exceeding four months.
(2) [...]
(3) [...]."
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2.3 On 9 July 2001, Frank Lasse Henriksen was interviewed by telephone by
the police of Randers. The interview report states:
"The witness stated that he was working when his boss, Mr. Christensen, came
and presented a new apprentice; also present was the victim, Ahmad. A
discussion/quarrel arose between Mr. Christensen and the victim, and the
discussion concerned holiday pay, wages and missing wage slips [...]. [T]he
witness went to Mr. Christensen, who at this point was angry about the
quarrel with the victim, and felt - at least he said so - that, if the
witness felt like the victim, he could consider himself sacked. The witness
was so infuriated with the treatment that he took his boss at his word. Mr.
Christensen now shouted that it was all just about an Arab bastard - which,
in the witness' opinion, was far too rude. According to the witness, Mr.
Christensen went far beyond the line. The witness was read the racist
statements mentioned in the complaint and stated that they corresponded to
what Mr. Christensen had called the victim. After this, the witness
immediately left the workplace and has not worked for Mr. Christensen since
[...]".
2.4 On 12 July 2001, Carsten Thomassen was interviewed by telephone by the
police of Ĺarhus. The interview report states:
"On the relevant day, at about 10.30 a.m., Mr. Sadic and his boss were
standing on the external gallery on the first floor - below the witness. The
witness could hear that they were quarrelling about both work and money.
However, the witness had only heard fragments of the quarrel, in which both
parties had obviously become 'over-excited'. At some stage, the witness
heard Mr. Christensen say something like: 'You can just go home' - 'black
bastard'. The witness could not hear what Mr. Sadic said as he did not speak
Danish very well and was difficult to understand - particularly when he was
upset, as in that moment. However, to a large extent, the witness took the
quarrel to be one that may arise once in a while at the workplace [...]."
2.5 Mr. Christensen was interviewed by the police of Randers on 23 July
2001, without any charges being brought against him and without prejudice to
his right to refuse testimony. The interview report states:
"Mr. Christensen stated that, on the relevant day, he had a quarrel with the
victim about payment for overtime [...]. Mr. Christensen and the victim
[...] used abusive language [...]. Mr. Christensen never used [...] words
like 'Arab bastard', 'Paki bastard', 'Arabs smell', etc., towards the
victim. Mr. Christensen was confronted with the witness statement of Mr.
Henriksen. To this, Mr. Christensen stated that he had previously sacked Mr.
Henriksen due to disagreements. [...] After Mr. Henriksen had been sacked,
he left the workplace and, consequently, cannot have overheard the
conversation with the victim. [...] On the basis of the information
presented, Mr. Christensen cannot admit [a] violation of section 266 b of
the Criminal Code. [...]."
2.6 By letter of 24 August 2001, the Chief Constable of the Ĺarhus police
informed the DRC that the investigation of the case had been discontinued,
stating that it could not reasonably be presumed that a criminal offence
subject to ex officio prosecution had been committed. The discontinuation of
the investigation was mainly based on the fact that the argument between the
petitioner and Mr. Christensen had taken place at work, "where only two
other persons were present". Apart from the question whether or not Mr.
Christensen had made the statements in question, the Chief Constable found
that, in any event, these statements had not been made publicly or with the
intention of wider dissemination. As to a claim for damages, the petitioner
was advised to pursue civil proceedings.
2.7 On 28 September 2001, the petitioner appealed the decision to
discontinue investigations before the Regional Public Prosecutor in Viborg,
arguing that the petitioner's former employer had made his statements on a
construction site in a public housing area and, therefore, had at least
accepted the possibility that other people would hear his comments.
Moreover, the petitioner referred to several judgements of Danish courts
which construed the requirement, in section 266 b of the Criminal Code, of
statements being made publicly quite broadly. He challenged the Chief
Constable's finding that only two other persons were present at the
incident. The petitioner quoted from a written statement in which Mr.
Thomassen asserted that "[o]n Tuesday, 25 July 2000, at about 10.30 a.m., I,
Carsten Thomassen, was standing together with three other colleagues [...]
on the external gallery for a short break, when, to our great surprise, we
overheard a conversation/quarrel between the master [...] and Ahmad".
2.8 By letter of 27 November 2001, the Regional Public Prosecutor of Viborg
dismissed the appeal, arguing that, although it could not be established
with certainty that only two other persons were present at the incident, the
statements by Mr. Christensen were made in connection with a dispute between
the petitioner and his employer at a stage where both parties had become
over-excited and that the witnesses were some distance away from the exact
place of the quarrel and only heard fragments of the dispute. Given that
"this was only a loud-voiced quarrel which others happened to overhear - at
a distance [...]", the Regional Public Prosecutor concluded that the
employer's statements could not be considered public. Since the argument was
not likely to disturb the public peace or cause a nuisance to other people
present, the police regulations had not been violated either. The petitioner
was thus advised to pursue any claim for damages through civil proceedings.
The decision of the Regional Public Prosecutor was final and could not be
appealed.
The Complaint
3.1 The petitioner claims that he has exhausted domestic remedies, as there
is no possibility to appeal the decision of the Regional Public Prosecutor
and he cannot bring the case before the Danish courts. He submits that,
under section 275 of the Danish Criminal Code, violations of section 266 b
are subject only to prosecution ex officio and that direct legal action
against his former employer would have been without prospect, given that the
police and the Regional Public Prosecutor had rejected his complaint. In
support of the latter claim, the petitioner submits that, pursuant to a
decision of the Eastern High Court dated 5 February 1999, an incident of
racial discrimination does not in itself constitute a violation of the
honour and reputation of a person within the meaning of section 26 of the
Liability for Damages Act.
3.2 The petitioner claims that the State party has violated its obligations
under articles 2, paragraph 1 (d), and 6 of the Convention by not
investigating effectively to what extent the construction site was
accessible to the public, how many people were present at the incident and
to what extent it would have been possible for others to overhear the
employer's statements. The petitioner argues that, following the decision of
the Committee in L.K. v. The Netherlands (case No. 4/1991, Opinion adopted
on 16 March 1993), States parties have a positive obligation under the above
provisions to take effective action against reported incidents of racial
discrimination.
3.3 By reference to another case decided by the Committee (Kashif Ahmad v.
Denmark) (case No. 16/1999, Opinion adopted on 13 March 2000) [in which
racist comments were made in a hallway outside a classroom], the petitioner
submits that the State party did not claim in that case that the statements
had not been made publicly and that a violation was found by the Committee.
He furthermore refers to two cases in which Danish courts found violations
of section 266 b of the Criminal Code in what he considers similar
circumstances.
3.4 The petitioner asks the Committee to request the State party to carry
out a full investigation into the incident reported by him and to award him
financial compensation, in accordance with article 6 of the Convention.
The State Party's Submission on the Admissibility and the Merits of the
Communication
4.1 By note verbale of 20 November 2002, the State party made its
submissions on the admissibility and, subsidiarily, on the merits of the
communication.
4.2 On admissibility, the State party submits that the petitioner failed to
exhaust domestic remedies. Contrary to violations of section 266 b, which
are subject to prosecution ex officio, violations of section 267 [FN2] of
the Criminal Code - the general provision on defamatory statements which
supplements section 266 b - are prosecuted only at the request of the
individual concerned, pursuant to section 275 [FN3] of the Criminal Code.
The petitioner could have requested the institution of criminal proceedings
under section 267 against his employer and, by doing so, could have obtained
a decision on whether his former employer had made the reported statements
and, subject to fulfilling the conditions of section 267, a conviction of
Mr. Christensen.
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[FN2] Section 267 of the Criminal Code reads, in pertinent parts:
"(1) Any person who violates the honour of another [person] by offensive
words or conduct, or by making or spreading allegations of an act likely to
disparage [that person] in the esteem of his or her fellow citizens, shall
be liable to a fine or to imprisonment [...] not exceeding four months.
(2) [...]
(3) [...]."
[FN3] Section 275 of the Criminal Code reads, in pertinent parts:
"(1) The offences contained in this Part shall be prosecuted at the request
of the individual concerned, except for the offences referred to in sections
[...] 266 b.
(2) [...]."
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4.3 The State party contends that the institution of criminal proceedings
under section 267 of the Criminal Code is an effective remedy. Moreover, the
decision of the Danish authorities to discontinue investigations under
section 266 b was without prejudice to the effectiveness of that remedy,
since neither the Chief Constable nor the Regional Public Prosecutor had
taken any position on the question whether Mr. Christensen had made the
statements complained of. The State party argues that, for the same reason,
the discontinuation of investigations under section 266 b did not preclude a
legal action for non-pecuniary damages against his former employer, under
section 26 of the Liability for Damages Act. [FN4]
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[FN4] Section 26, paragraph 1, of the Liability for Damages Act reads:
"(1) A person who is liable for unlawful violation of another person's
freedom, peace, character or person shall pay compensation to the injured
party for non-pecuniary damage."
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4.4 The State party argues that the communication is incompatible with the
Convention ratione materiae, since the central claim is that the Danish
authorities did not interpret and apply section 266 b of the Criminal Code
correctly. The concrete elements which, according to the petitioner, should
have been investigated all relate to the conditions for punishment under
section 266 b, i.e. the place where the statements were made, the number of
persons who heard or might have heard Mr. Christensen's statements, etc. in
the State party's opinion, the legal assessment by the Chief Constable and
the Regional Public Prosecutor of Viborg that the requirements of section
266 b were not met in the present case is primarily a matter which relates
to interpretation and application of domestic legislation and which the
Committee has no competence to review.
4.5 On the basis of the above arguments, the State party concludes that the
communication should be declared inadmissible under article 14, paragraphs 1
and 7 (a), of the Convention.
4.6 Subsidiarily and on the merits, the State party submits that the Danish
authorities took the petitioner's complaint seriously, as they initiated
investigations and interviewed witnesses, as well as the petitioner's former
employer, as a result of the complaint. It concludes that the processing and
assessment of the complaint by the Chief Constable and the Regional Public
Prosecutor therefore fully complies with the State party's obligations under
article 2, paragraph 1, and article 6 of the Convention.
4.7 With regard to the requirement that a statement should be made "publicly
or with the intention of wider dissemination", the State party admits that
grey zones in the delimitation between public and private are unavoidable
and argues that it should therefore be for the national authorities to
assess whether these requirements have been met in a specific case.
4.8 The State party submits that the two judgements adduced in support of
his arguments by the petitioner could not be relied upon because, in one
case, the judgement contained no specific information on the number of
persons present in the news store and, in the other case, the court observed
that "many persons must have overheard [...] the incident".
4.9 The State party argues, moreover, that section 266 b of the Criminal
Code is not the only provision designed to ensure compliance with the State
party's obligations under the Convention, since it is supplemented by other
provisions, including section 267 of the same Code.
4.10 The State party concludes that, even if the Committee were to declare
the communication admissible, it does in any event not disclose a violation
of the Convention.
Comments by the Petitioner
5.1 The petitioner submits that section 267 of the Criminal Code, as well as
section 26 of the Liability for Damages Act, do not address the issue of
racial discrimination and therefore do not provide an effective remedy
against acts of racial discrimination, as required by article 2, paragraph 1
(d), and article 6 of the Convention. He claims that the only relevant
remedy is section 266 b of the Criminal Code, indicating that, in previous
cases, it was not held by the Committee that, in order to exhaust domestic
remedies, a petitioner should have initiated criminal proceedings under
section 267 of the Criminal Code or civil proceedings under section 26 of
the Liability for Damages Act.
5.2 As to the requirements of section 266 b of the Criminal Code, the
petitioner reiterates that Danish courts found violations of that provision
in the past even where only one other person apart from the victim(s) had
been present during an incident of racial discrimination. He also refers to
the Opinion in Kashif Ahmad v. Denmark (case No. 16/1999, para. 6.1), where
the Committee found a violation of article 6 of the Convention on the basis
"that the author was insulted in public", since the relevant statements were
made "in a school corridor and in the presence of several witnesses".
5.3 Based on the written statement of Mr. Thomassen, the petitioner claims
that at least five persons overheard his argument with his employer and that
the police failed to contact the other three colleagues mentioned in that
statement.
5.4 The petitioner rejects the State party's argument that the core of his
communication is related to the interpretation of domestic legislation and
the evaluation of facts and evidence. He argues that the lack of an
effective investigation is closely connected to the fact that the Danish
authorities concluded that his complaint fell outside the scope of section
266 b of the Criminal Code.
Issues and Proceedings Before the Committee
6.1 Before considering the substance of a communication, the Committee on
the Elimination of Racial Discrimination must, in accordance with rule 91 of
its rules of procedure, examine whether or not the communication is
admissible.
6.2 The Committee notes that the petitioner brought a complaint under
section 266 b of the Criminal Code before the police and the Regional Public
Prosecutor; and that these authorities, after having interviewed two
witnesses and the petitioner's former employer, decided to discontinue
criminal proceedings under section 266 b, as they considered that the
requirements of this provision were not satisfied. It has taken note of the
State party's argument that, despite the discontinuation of proceedings
under section 266 b of the Criminal Code, the petitioner could have
requested the institution of criminal proceedings against his former
employer under the general provision on defamatory statements (sect. 267 of
the Criminal Code). The petitioner does not deny the availability of this
remedy, but questions its effectiveness in relation to incidents of racial
discrimination.
6.3 The Committee observes that the notion of "effective remedy", within the
meaning of article 6 of the Convention, is not limited to criminal
proceedings based on provisions which specifically, expressly and
exclusively penalize acts of racial discrimination. In particular, the
Committee does not consider it contrary to articles 2, paragraph 1 (d), and
6 of the Convention if, as in the State party's case, the provisions of
criminal law specifically adopted to outlaw acts of racial discrimination
are supplemented by a general provision criminalizing defamatory statements
which is applicable to racist statements even if they are not covered by
specific legislation.
6.4 As to the petitioner's argument that criminal proceedings against his
former employer under section 267 would have been without prospect because
the authorities had already rejected his complaint under section 266 b of
the Criminal Code, the Committee notes, on the basis of the material before
it, that the requirements for prosecution under section 266 b are not
identical to those for prosecution under section 267 of the Criminal Code.
It therefore does not appear that the Danish authorities' decision to
discontinue proceedings under section 266 b on the ground of lack of
evidence as to whether the employer's statements were made publicly or with
the intention of wider dissemination have prejudiced a request by the
petitioner to institute criminal proceedings under section 267 (together
with section 275) of the Criminal Code. The Committee therefore considers
that the institution of such proceedings can be regarded as an effective
remedy which the petitioner failed to exhaust.
6.5 As to the question of damages, the Committee recalls the State party's
argument that the petitioner did not institute civil proceedings against his
former employer under section 26 of the Liability for Damages Act and
therefore did not exhaust domestic remedies. With regard to the petitioner's
arguments that a previous decision of the Eastern High Court held that an
incident of racial discrimination does not in itself constitute a violation
of the honour and reputation of a person, the Committee considers that mere
doubts about the effectiveness of available civil remedies do not absolve a
petitioner from pursuing them (see communication No. 19/2000, Sarwar Seliman
Mostafa v. Denmark, decision adopted on 10 August 2001, para. 7.4).
6.6. Accordingly, the Committee considers that, by not exhausting the
available domestic remedies, the petitioner has failed to meet the
requirements of article 14, paragraph 7 (a), of the Convention.
6.7 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 to the
petitioner.
6.8 However, the Committee invites the State party to reconsider its
legislation, since the restrictive condition of "broad publicity" or "wider
dissemination" required by article 266 b of the Danish Criminal Code for the
criminalization of racial insults does not appear to be fully in conformity
with the requirements of articles 4 and 6 of the Convention.
[Done in Arabic, Chinese, English, French, Russian and Spanish, the English
text being the original.]
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