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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 7 March 2005,
Adopts the following:
Opinion
1. The petitioner is Mr. Sefic Emir, a Bosnian citizen, currently residing
in Denmark, where he holds a temporary residency and work permit. He claims
to be a victim of violations by Denmark of articles 2, paragraph 1 (d), 5
and 6, of the International Convention on the Elimination of All Forms of
Racial Discrimination. He is represented by the Documentation and Advisory
Centre on Racial Discrimination (DRC), a non-governmental organization,
based in Denmark.
The Facts as Presented by the Petitioner:
2.1 On 22 July 2002, the petitioner contacted Fair Insurance A/S to purchase
insurance covering loss of and damage to his car, as well as third party
liability insurance. He was told that they could not offer him insurance, as
he did not speak Danish. The conversation took place in English and the
sales agent FULLY understood his request.
2.2 Late July 2002, the petitioner contacted the DRC, which requested
confirmation of the petitioner's allegations from Fair Insurance A/S. In the
meantime, the petitioner contacted the company again and was rejected on the
same grounds. By letter dated 23 September 2002, Fair Insurance A/S
confirmed that the language requirement was necessary to obtain any
insurance offered by the company for the following reasons:
".....ensure that we cover the need of the customer to the extent that we
can ensure that both the coverage of the insurance and the prices are as
correct as possible.
.........ensure that the customer understands the conditions and rights
connected to every insurance..........ensure that the customer in connection
with a damage claim particularly when it is critical (accident, fire etc.)
can explain what has happened in order that he/she can be given the right
treatment and compensation.
To fulfil these demands it is ............of the utmost importance that the
dialogue with the customers is carried out in a language that both the
customer and we are familiar with and that for the time being we can only
fulfil this requirement and offer service to our customers in Danish. The
reason being that we as a young (3.5 years) and relatively small company
have limited resources to employ persons in our customer services department
with knowledge of insurance issues in languages other than Danish or develop
or maintain material on insurances in languages other than Danish."
2.3 On 8 October 2002, the DRC filed a complaint with the Danish Financial
Supervisory Authority, which monitors financial companies. By letter of 25
November 2002, the Supervisory Authority replied that the complaint should
be made to the Board of Appeal of Insurances ("the Board"). However, the
Supervisory Authority would consider whether a general policy of rejection
on the bases of language was in accordance with Danish law. It pointed out
that, under section 1 [FN1] in the Instruction on Third Party Liability
Insurances for Motor Vehicles (No. 585, 9 July 2002), the company was
legally obliged to offer any customer public liability insurance.
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[FN1] Case no. 4/1991, Decision adopted on 16 March 1993 and Case no.
10/1997, Decision adopted on 17 March 1999.
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2.4 On 12 December 2002, the DRC filed a complaint with the Board and
specifically asked whether the language requirement was compatible with the
Act against Discrimination. On 31 January 2003, the Board informed the DRC
that it was highly unlikely that it would consider the legality of the
requirement in regard to any other legislation other than the Act on
Insurance Agreements. However, the case was being given due consideration.
The letter also contained a response, of 29 January 2003, from Fair
Insurance A/S to the Board, which stated as follows:
"Regarding the Act on Insurance Agreements ..........we are clearly aware of
the fact that anybody accepting our conditions of insurance can demand to be
offered third party liability insurance. We regret that Emir Sefic was not
offered third party liability insurance that he could have claimed. On this
basis we have explained in more detail to our employees the legal rules in
regard to the liability insurance."
2.5 On 10 January 2003, the Supervisory Authority informed the DRC that its
assessment would be based on Section 3 of the Act on Financial Business, in
its determination on whether Fair Insurance A/S had complied with "upright
business activity and good practice". On 11 March 2003, it informed the DRC
that it was of the view that the requirement did not violate Section 3. The
Supervisory Authority did not consider whether the language requirement
violated any other legislation, in particular the Act against
Discrimination.
2.6 On 12 December 2002, the DRC filed a complaint with the Commissioner of
the Police of Copenhagen ("the Commissioner"). On 24 April 2003, the
Commissioner informed the DRC that "it appears from the material received
that the possible discrimination only consists of a requirement that the
customers can to speak Danish in order for the company to arrange the work
routines in the firm. Any discrimination based on this explanation and being
objectively motivated is not covered by the prohibition in Section 1 [FN1]
of the Act against Discrimination."
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[FN1] Case no. 4/1991, Decision adopted on 16 March 1993 and Case no.
10/1997, Decision adopted on 17 March 1999.
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2.7 On 21 May 2003, the DRC filed an appeal with the Regional Public
Prosecutor of Copenhagen ("the Prosecutor"). On 13 June 2003, the Prosecutor
rejected the complaint under Section 749 [FN1] of the Administration of
Justice Act. He explained that the language requirement, "was not based on
the customer's race, ethnic origin or the like, but in the wish to be able
to communicate with the customers in Danish, as the company has no employees
who in regard to insurances in other languages than Danish have skills.
Discrimination based on such a clear linguistic basis combined with the
information given by the company is not in my opinion covered by the Act on
the prohibition of differential treatment based on race etc. Moreover, it is
my view that the Fair Insurance A/S's acknowledgement of the fact that the
company was obliged to offer a third party liability insurance to Emir Sefic,
in accordance with the Act on Insurance Agreements, is of no relevance in
regard to the question whether the Act on the prohibition of differential
treatment based on race etc....I have based this on the information provided
by Fair Insurance A/S that it was due to a mistake that no third party
liability insurance was offered to Emir Sefic."
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[FN1] Case no. 4/1991, Decision adopted on 16 March 1993 and Case no.
10/1997, Decision adopted on 17 March 1999.
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2.8 The petitioner argues that he has exhausted domestic remedies. Any
decision by the Regional Prosecutors relating to the investigation by the
police departments cannot be appealed to other authorities. As questions
relating to the pursuance by the police of charges against individuals are
entirely up to the discretion of the police, there is no possibility of
bringing the case before the Danish Courts. He submits that a civil claim
under the Act on Civil Liability would not be effective, as both the
Commissioner and the Prosecutor have rejected his complaint. Furthermore,
the Eastern High Court, in a decision of 5 February 1999, has held that an
incident of racial discrimination does not in itself imply a violation of
the honour and reputation of a person under section 26 of the Act on Civil
Liability. Thus, racial discrimination in itself does not amount to a claim
for compensation by the person offended.
The Complaint:
3.1 As to the definition of discrimination under article 1, subparagraph 1,
of the Convention, the petitioner argues that, although a language
requirement is not specifically included in this definition, discrimination
may conflict with the obligation laid down in the Convention, especially
under circumstances where the requirement in fact constitutes discrimination
based, inter alia, on national or ethnic origin, race or colour, as the
requirement has such an effect. Further, any language requirement used with
the purpose of excluding, inter alia, customers of a specific national or
ethnic origin would be contrary to article 1 of the Convention. Such a
requirement should also have a legitimate aim and respect the requirement of
proportionality in order to constitute a legal ground for discrimination.
3.2 The petitioner claims that the State party has violated article 2,
subparagraph 1 (d), and 6, by not providing effective remedies against a
violation of the rights relating to article 5. He refers to the Committee's
decisions in L.K. v. the Netherlands and Habassi v. Denmark, [FN1] in which
it was established that States parties have a positive obligation to take
effective action against reported incidents of racial discrimination. The
petitioner submits that the language requirement cannot be considered as an
objective requirement; and argues that the Danish authorities could not come
to such a conclusion without initiating a formal investigation. They merely
based their claim on the letter from Fair Insurance A/S of 23 September
2003, the DRC's complaint to the Commissioner of 12 December 2003 and the
appeal to the Prosecutor of 21 May 2003. Neither the Commissioner nor the
Prosecutor examined whether the language requirement constituted direct or
indirect discrimination on the basis of national origin and/or race.
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[FN1] Case no. 4/1991, Decision adopted on 16 March 1993 and Case no.
10/1997, Decision adopted on 17 March 1999.
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3.3 The petitioner highlights the following questions and issues, which in
his view the Danish authorities failed to consider in examining whether the
language requirement constituted racial discrimination: Firstly, to what
extent the petitioner and Fair Insurance A/S were able to communicate in the
present case. As the latter did understand the petitioner sufficiently to
reject his claim, the authorities should have examined whether Fair
Insurance A/S had understood the needs of the petitioner, to ensure that he
understood the conditions and rights connected to each insurance and that he
would be able to inform the company about the relevant facts in connection
with a potential damage claim. Secondly, the authorities should have
examined the extent to which the situation concerning language skills in
regard to statutory insurance (the third party liability insurance) differed
from the situation in regard to voluntary insurance (the insurance covering
loss off and damage to a car.) As the third party insurance is statutory,
the company is obliged, even if the costumer only speaks English, as in the
present case, to provide an offer and accept any customer who accepts its
conditions. An investigation "could" have uncovered whether Fair Insurance
A/S was able to "communicate on a sufficient basis" the demands,
requirements and rights connected to the statutory insurance to the
petitioner.
3.4 Thirdly, the authorities should have examined whether Fair Insurance A/S
had any customers who were unable to speak Danish. If this were the case
(especially relating to the statutory insurance), it would be of interest to
reveal how the company communicated with such customers, and why the company
could not communicate with other potential customers requesting other
insurances. In addition, the petitioner claims that the failure by the
Commissioner and the Prosecutor to interview him and Fair Insurance A/S
further demonstrates that no proper investigation was carried out to try and
establish whether the reasons given by Fair Insurance A/S were correct. The
petitioner argues that there "may" have been other reasons for the language
requirement and refers to a test case conducted by a television show, which
revealed that Fair Insurance A/S offered insurance at a higher price to an
individual of non-Danish national origin than a person of Danish national
origin.
State Party's Submission on the Admissibility and Merits:
4.1 On 18 December 2004, the State party provided commented on the
admissibility and merits. On admissibility, it submits that, although the
petitioner has exhausted available remedies under criminal law, there remain
two civil actions which he has not pursued. Thus, the case is inadmissible
for failure to exhaust domestic remedies. Firstly, the petitioner could
bring an action against Fair Insurance A/S, claiming that it acted in
contravention of the law by exposing him to racial discrimination, and thus
request damages for both pecuniary and non-pecuniary loss.
4.2 The State party argues that this case differs from the Habassi [FN2]
decision, in which the Committee found that the bringing of a civil action
in a case of alleged discrimination contrary to the Act against
Discrimination was not an effective remedy, as unlike the petitioner in that
case, the petitioner in the current case claims that he has suffered a
financial loss, as he subsequently had to take out insurance with another
insurance company at a higher premium. The same argument is made to
distinguish the current case from the Committee's decision in the case of
B.J. v. Denmark. [FN3]
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[FN2] Case no. 10/1997, Habassi v. Denmark, Decision adopted on 17 March
1999.
[FN3] Case no. 17/1999, B.J. v. Denmark, Decision adopted on 17 March 2000.
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4.3 The second civil remedy is an action against Fair Insurance A/S under
the rules of the Danish Marketing Practices; under Section 1 [FN1] thereof,
a private business may not perform acts contrary to "good marketing
practices". The petitioner could have submitted that Fair Insurance A/S had
acted in contravention of the Act against Discrimination in its treatment of
his insurance application and had thus also acted in contravention of "good
marketing practices". The petitioner could have claimed damages under
general rules of Danish Law, both for the financial loss allegedly suffered
by him and for non-pecuniary loss. Acts contrary to this Act can be
prohibited by judgment and give rise to liability in damages.
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[FN1] Case no. 4/1991, Decision adopted on 16 March 1993 and Case no.
10/1997, Decision adopted on 17 March 1999.
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4.4 As to the merits, the State party submits that there has been no
violation of the Convention. It acknowledges that States parties have a duty
to initiate a proper investigation when faced with complaints about acts of
racial discrimination, which should be carried out with due diligence and
expeditiously and must be sufficient to determine whether or not an act of
racial discrimination has occurred. [FN4] However, in the State party's
view, it does not follow from the Convention or the Committee's case law
that an investigation has to be initiated in all cases reported to the
police. If no basis is found to initiate an investigation, the State party
finds it to be in accordance with the Convention to dismiss the report. In
the present case, the Commissioner and the Prosecutor received a detailed
written report enclosing a number of annexes from the DRC illustrating the
case sufficiently to conclude, without initiating any investigation, whether
it could reasonably be presumed that a criminal offence subject to public
prosecution had been committed.
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[FN4] The State party refers to the Committee's jurisprudence on this issue:
Case No. 1/84, A. Yilmaz v. the Netherlands, Decision adopted on 10 August
1988, Case No. 4/1991, L.K. v. the Netherlands, Decision adopted on 16 March
1993, Case No. 10/1997, Habassi v. Denmark, Decision adopted on 17 March
1999, and Case No. 16/1999, Ahmad v. Denmark, Decision adopted on 13 March
2000.
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4.5 As to the petitioner's argument that the Commissioner should have
investigated whether the language requirement constituted direct or indirect
discrimination, the State party submits that the Act against Discrimination
does not make this distinction, but refers to the person who "refuses to
serve" another person on the same conditions as others on account of race,
nationality etc. It was, therefore, not decisive in itself to clarify
whether direct or indirect discrimination had occurred, but rather whether
Section 1 of the Act against Discrimination had been violated intentionally,
whether the alleged discrimination contrary to the Act was direct or
indirect. As to the petitioner's reference to the television survey, the
State party finds this of no relevance to this context.
4.6 As to whether the Commissioner should have investigated the extent to
which the petitioner and Fair Insurance A/S could communicate, the State
party argues that it was not decisive to clarify whether the petitioner and
Fair Insurance A/S had been able to communicate adequately, but rather
whether section 1 of the Act against Discrimination had been violated
intentionally. As the language requirement is due to the lack of resources
to hire staff with insurance expertise in languages other than Danish and to
the fact that it is a telephone-based company, the State party considers the
requirement to be objectively justified, as the question involves the
purchase of an insurance policy, which implies contractual rights and
obligations, and the contents and consequences of which both the buyer and
seller must be able to understand with certainty. It is therefore,
considered irrelevant to initiate an investigation of the extent to which
the petitioner and Fair Insurance A/S were able to communicate in a language
other than Danish. In this connection, the government notes the decision of
the Financial Supervisory Authority that this language policy does not
violate Section 3 of the Financial Business Act No.660 of 7 August 2002, as
the measure involved is a practical measure resulting from limited
resources.
4.7 As to whether the Commissioner should have investigated the extent to
which the situation concerning language skills in regard to statutory
insurance differed from the situation in regard to voluntary insurance, the
State party submits that it follows from Fair Insurance A/S's letter of 22
January 2003 that the company acknowledges that the petitioner should have
been offered third party liability insurance when he contacted the company.
The State party notes that the task of the Commissioner was not to consider
whether Fair Insurance A/S had a general practice contrary to the Act
against Discrimination, but rather whether it had specifically violated the
Act in connection with the petitioner's application, and thus committed a
criminal act of racial discrimination.
4.8 As to whether the Commissioner should have investigated the extent to
which Fair Insurance A/S had customers who are unable to speak Danish, the
State party submits that in its letter of 19 September 2002, Fair Insurance
A/S informed the DRC that the company has many customers with an ethnic
background other than Danish, but that these customers speak Danish. In this
light, it was not considered necessary to investigate any further.
Petitioner's Comments on State Party's Submission:
5.1 On 27 February 2004, the petitioner responded to the State party's
submission. On its admissibility arguments, he submits that the Habassi
decision clearly indicates that "the civil remedies proposed by the State
party could not be considered an adequate avenue of
redress.....(because)......... The same objective could not be achieved by
instituted a civil action, which would lead only to compensation for
damages".....and thus not to a criminal conviction. Furthermore, the
Committee was of the opinion that it was not "convinced that a civil action
would have any prospect of success......" He submits that he has a right to
an effective remedy against racial discrimination, as defined in article 1
and 5 of the Convention.
5.2 As to the Danish Marketing Practices Act, the petitioner submits that
this Act has nothing to do with racial discrimination and a decision in
relation to this Act is not a "remedy" against such a violation of the
petitioner's rights. In addition, the petitioner claims that if this civil
legislation covered the situation in the current case there would have been
no necessity for the State party to adopt a new Act on Equal Treatment,
which was implemented and took effect on 1 July 2003 – after the incident
addressed in the present case. The petitioner maintains his arguments on the
merits.
Issues and Proceedings Before the Committee:
Consideration of Admissibility
6.1 Before considering any claims contained in a petition, 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 State party objects to the admissibility of
the complaint on the grounds of failure to exhaust civil domestic remedies.
The Committee recalls its jurisprudence [FN5] that the types of civil
remedies proposed by the State party may not be considered as offering an
adequate avenue of redress. The complaint, which was filed with the police
department and subsequently with the Public Prosecutor alleged the
commission of a criminal offence and sought a conviction of the company Fair
Insurance A/S under the Danish Act against Discrimination. The same
objective could not be achieved by instituting a civil action, which would
result only in compensation for damages awarded to the petitioner. Thus, the
Committee considers that the petitioner has exhausted domestic remedies.
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[FN5] Case No. 10/1997, Habassi v. Denmark, Decision adopted on 17 March
1999.
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6.3 In the absence of any further objections to the admissibility of the
communication, the Committee declares the petition admissible and proceeds
to its examination of the merits.
Consideration of the Merits
7.1 The Committee has considered the petitioner's case in the light of all
the submissions and documentary evidence produced by the parties, as
required under article 14, paragraph 7 (a), of the Convention and rule 95 of
its rules of procedure. It bases its findings on the following
considerations.
7.2 The issue before the Committee is whether the State party fulfilled its
positive obligation to take effective action against reported incidents of
racial discrimination, with regard to the extent to which it investigated
the petitioner's claim in this case. [FN6] The petitioner claims that the
requirement to speak Danish as a prerequisite for the receipt of car
insurance is not an objective requirement and that further investigation
would have been necessary to find out the real reasons behind this policy.
The Committee notes that it is not contested that he does not speak Danish.
It observes that his claim together with all the evidence provided by him
and the information about the reasons behind Fair Insurance A/S's policy
were considered by both the police department and by the Public Prosecutor.
The latter considered that the language requirement "was not based on the
customer's race, ethnic origin or the like", but for the purposes of
communicating with its customers. The Committee finds that the reasons
provided by Fair Insurance A/S for the language requirement, including the
ability to communicate with the customer, the lack of resources for a small
company to employ persons speaking different languages, and the fact that it
is a company operating primarily through telephone contact were reasonable
and objective grounds for the requirement and would not have warranted
further investigation.
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[FN6] L.K. v. the Netherlands and Habassi v. Denmark, supra.
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8. In the circumstances, the Committee on the Elimination of Racial
Discrimination, acting under article 14, paragraph 7 (a), of the
International Convention on the Elimination of All Forms of Racial
Discrimination, is of the opinion that the facts as submitted do not
disclose a violation of the Convention by the State party.
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