|
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 9 March 2005,
Adopts the following:
Opinion
1. The petitioner is Kamal Quereshi, a Danish national born 29 July 1970 and
a current member of the State party's parliament (Folketinget) for the
Socialist Peoples Party (Socialistisk Folkeparti). He alleges to be the
victim of a violation by Denmark of articles 2, subparagraph 1(d), 4 and 6
of the Convention. He is represented by counsel.
The Facts as Presented
2.1 On 26 April 2001, Ms. Pia Andersson, a member of the executive board of
the Progressive Party (Fremskridtspartiet), faxed to the media two letters
on party letterhead stating inter alia: "No to more Mohammedan rapes! ....
Cultural enrichments [are] taking place in the shape of negative expressions
and rapes against us Danish women, to which we are exposed every day ....
Now it's too much, we will not accept more violations from our foreign
citizens. Can the Mohammedans not show some respect for us Danish women, and
behave like the guests they are in our country, then the politicians in the
Parliament has to change course and expel all of them."
2.2 On 15 May 2001, with respect to certain disturbances in an Odense
neighbourhood, Ms. Andersson faxed a press release stating: "Engage the
military against the Mohammedan terror! ....Dear fellow citizen, it is that
war-like culture these foreigners enrich our country with .... Disrespect
for this country's laws, mass rapes, violence abuse of Danish women by
shouting things like 'whore', 'Danish pigs', etc .... And now this civil
war-like situation."
2.3 On 5 September 2001, the Progressive Party placed an advertisement in a
local newspaper for a lecture by the former leader of the Party, Mr. Mogens
Glistrup, which stated, inter alia: "The Bible of the Mohammedans requires
[that] the infidel shall be killed and slaughtered, until all infidelity has
been removed."
2.4 The petitioner asserts that the Progressive Party established courses,
parts of which were broadcast on a newsflash on State television, teaching
members how to avoid attracting liability under section 266(b) of the
Criminal Code. [FN1]
---------------------------------------------------------------------------------------------------------------------
[FN1] Section 266(b) of the Criminal Code stipulates:
"(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 two years.
(2) When the sentence is meted out, the fact that the offence is in the
nature of propaganda activities shall be considered an aggravating
circumstance."
---------------------------------------------------------------------------------------------------------------------
2.5 Speeches made at the Progressive Party's annual meeting, held on 20 and
21 October 2001, were broadcast on the State party's public television
system, which has a duty to broadcast from annual meetings of political
parties seeking election. The petitioner contends that the following
statements were made at the meeting from the podium: [FN2]
---------------------------------------------------------------------------------------------------------------------
[FN2] The form of the statements is as reported in the criminal complaints
to the police lodged by the Documentation and Advisory Centre on Racial
Discrimination .
---------------------------------------------------------------------------------------------------------------------
Vagn Andersen (party member): "The State has given the foreigners work. They
work in our slaughterhouses where they can easily poison our food and
endanger the agricultural exports. Another form of terrorism is to break
into our water-works and poison the water."
Mogens Glistrup (former leader of the party): "The Mohammedans will
exterminate the populations of the countries to which they have advanced."
On 22 October, an article in the Dagbladet Politiken daily quoted this
statement as: "Their holiest duty is, in the name of Allah, to exterminate
the populations in the countries to which they have advanced."
Erik Hammer Sørensen (party member, commenting on immigration to the State
party): "There are fifth columnists about. Those that we have got in commit
violence, murder and rape."
Margit Petersen (party member, referring to her earlier conviction under
section 266(b) in the State party's courts): "I'm glad to be a racist. We
want a Mohammedan-free Denmark"; "the Blacks breed like rats".
Peter Rindal (party member): "Concerning Mohammedan burial grounds in
Denmark, of course we should have such ones. And they should preferably be
so large that there is room for all of them, and hopefully in one go."
Bo Warming (party member): "The only difference between Mohammedans and rats
is that rats don't draw social benefits." He allegedly distributed a drawing
of a rat with the Koran under its arm to journalists present at the
conference.
2.6 Upon viewing the meeting, the petitioner requested the Documentation and
Advisory Centre on Racial Discrimination (DRC) to file complaints against
the above individuals, as well as the members of the executive board of the
Progressive Party for approval of the statements made.
2.7 On 23 October 2001, the DRC filed complaints with the Varde police,
alleging that the statements of Ms. Guul and Mr. Warming separately violated
section 266(b)(1) and (2) of the Criminal Code on the basis that they
threatened, insulted or degraded a group of persons on account of their race
and ethnic origin.
2.8 On 25 October 2001, the DRC filed a complaint with the Varde police,
alleging that the statement made by Mr. Andreasen violated section 266(b)(1)
and (2) on the basis that it insulted and degraded a group of people on
account of their religious origin. The DRC added that the statement
postulated that immigrants and refugees were potential terrorists and
thereby a group of people of an ethnic origin other than Danish were
generally and unobjectively equated with crime. The same day, the DRC filed
a complaint with the Varde police, alleging that the statement made by Mr.
Rindal violated section 266(b)(1) and (2) on the basis that it threatened a
group of people on account of their race and ethnic origin.
2.9 On 26 October 2001, the DRC filed a complaint with the Varde police
alleging that the statement made by Mr. Glistrup violated section 266(b)(1)
and (2) on the basis that it insulted and degraded a group of people on
account of their ethnic origin, including their Muslim faith. The same day,
the DRC filed a complaint with the Varde police alleging that the statement
made by Mr. Sørensen violated section 266(b)(1) and (2) on the basis that it
threatened, insulted and degraded a group of people on account of their race
and ethnic origin. The DRC added that the statement equated a group of an
ethnic origin other than Danish with crime.
2.10 In addition, the DRC filed a complaint against the Progressive Party
itself with the Thisted police (being the police with jurisdiction over the
party leader's place of residence).
Subsequent Proceedings Against the Individual Speakers
2.11 On 28 March 2003, the Varde Police Chief Constable forwarded the six
cases to the Sønderborg Regional Public Prosecutor with the following
recommendations:
Messrs. Glistrup, Rindal and Warming should be prosecuted under section
2666(b)(1) of the Criminal Code. The part of the charge against Mr. Warming
concerning the allegedly distributed drawing should however be withdrawn
under section 721(1)(ii) of the Administration of Justice Act, as the
drawing could not be procured. [FN3]
The charges against Ms. Petersen should be withdrawn under sections
721(1)(ii) [FN4] and 722(1)(iv) [FN5] of the Administration of Justice Act.
The charges against Messrs. Andreasen and Sørensen should be withdrawn under
sections 721(1)(ii) of the Administration of Justice Act.
---------------------------------------------------------------------------------------------------------------------
[FN3] Section 721(1) of the Administration of Justice Act provides:
"Charges in a case may be withdrawn in full or in part in cases:
(i) where the charge has proved groundless;
(ii) where further prosecution cannot anyway be expected to lead to
conviction of the suspect; or
(iii) where completion of the case will entail difficulties, costs or trial
periods which are not commensurate with the significance of the case and
with the punishment, the imposition of which can be expected in case of
conviction."
[FN4] Ibid.
[FN5] Section 722(1)(iv) of the Administration of Justice Act provides that:
"Prosecution in a case may be waived in full or in part in cases ... where
section 89 of the Criminal Code is applicable when it is deemed that no
punishment or only an insignificant punishment would be imposed and that
conviction would not otherwise be of essential importance." Section 89
provides: "Where a person already sentenced [for another offence] is found
guilty of another criminal offence committed prior to the judgment, an
additional sentence must be imposed provided that simultaneous adjudication
would have resulted in a more severe sentence."
---------------------------------------------------------------------------------------------------------------------
2.12 On 23 April 2003, the Regional Public Prosecutor requested the Police
Chief Constable to carry out further investigations of all six cases, and to
procure from the Police television channel a transcript of the statements
made at the party conference. On 9 May 2003. the Chief Constable modified
his recommendations, advising to withdrawn the charges against Mr. Glistrup
under section 721(1)(ii) of the Administration of Justice Act. He also
informed that the television channel had advised that it did not possess any
non-broadcast material from the party conference.
2.13 After receipt of further information, the Regional Public Prosecutor,
on 18 June 2003, made the following recommendations to the Director of
Public Prosecutions (DPP), in relation to prosecution of the above; the DPP
accepted them on 6 August 2003:
Messrs. Rindal and Warming should be prosecuted under section 266(b)(1) for
their statements at the party conference. The part of the charges against
Mr. Warming relating to the drawing was discontinued as it could not
reasonably be presumed that a criminal offence had been committed, as it had
not been possible to procure a copy of the drawing.
The charges against Mr. Andreasen should be withdrawn on the basis that that
further prosecution could not be expected to lead to conviction and
sentence. The DPP observed that the actus reus of section 266(b)(1) required
a statement to be directed at a group of persons on account of, inter alia,
race, colour, national or ethnic origin and religion. In the DPP's view,
this requirement had not been met as the concept of "foreigners" employed by
Mr. Andreasen was "so diffuse that it does not signify a group within the
meaning of the law".
The charges against Mr. Glistrup should be withdrawn on the basis that that
further prosecution could not be expected to lead to conviction and
sentence. The DPP observed that the journalist who attributed the reported
statement to Mr. Glistrup had declared that the statement had been made from
the rostrum and not in connection with an interview. However, the particular
statement did not appear on the video recording of the television broadcast,
and the television channel did not have any other non-broadcast material in
its possession. For his part, Mr. Glistrup had stated that his remarks were
unscripted. Accordingly, the DPP concluded that it was "dubious" that the
alleged statement could be proven to be, in violation of section 266(b).
The charges against Mr. Sørensen should be withdrawn on the basis that that
further prosecution could not be expected to lead to conviction and
sentence. Referring to the actus reus requirements discussed above, the DPP
was of the view that the terms of "fifth columnists" and "those that we have
got in" employed by Mr. Sørensen were not directed at a group of persons as
set out in section 266(b).
The charges against Ms. Petersen should be withdrawn on the basis that
completion of the trial would entail difficulties, costs or trial periods
not commensurate with the sanction to be expected in the event of
conviction. The DPP emphasized that on 20 November 2001, the Haderslev Court
had convicted Ms. Petersen to 20 day fines of DKK 300 for violation of
section 266(b)(1) and that her sentence would not have been much more severe
if the current offence had been included in that case. The DPP observed that
her remarks at the conference had been in the nature of a summary of her
trial and conviction by the Haderslev Court.
2.14 On 26 and 28 August 2003, respectively, the DRC appealed the DPP's
decisions regarding on Messrs. Andreasen (on the petitioner's behalf) and
Sørensen (on its own behalf) to the Ministry of Justice. On 13 October 2003,
the Ministry found both appeals inadmissible for lack of standing under
rules of administrative law concerning appeals of DPP decisions. With
respect to the appeal concerning Mr. Andreasen, the Ministry considered that
the petitioner, Mr. Quereshi, did not have "an essential, direct and
individual interest in the case, that he can be considered a party who is
entitled to appeal." As to the appeal regarding Mr. Sørensen, the Ministry
observed that, on the same principles, "lobby organizations, societies, etc.
or persons handling the interests of others, of groups or of the general
public on an idealistic, professional organizational, work-related or
similar basis cannot normally be considered parties to a criminal case
unless they have a power of attorney from a party to the case". It went on
to find that "this case does not present such circumstances that the DRC
must be considered entitled to appeal."
2.15 In October 2003, Messrs. Rindal and Warming were tried before the
Grindsted District Court and convicted of offences against section 266(b)(1)
Mr. Rindal was sentenced on 26 November 2003 to 20 days of DKK 50 for the
statement he had made at the party conference. Mr. Warming, for his part,
was sentenced to an additional punishment of 20 day fines of DKK 200 under
section 89 for, firstly, stating at the party conference that "It may happen
any day that all Muslims decide to throw Molotov cocktails into all the
nearest homes and drive in all their expensive cars to as many more other
homes as possible and throw in Molotovs and cocktails ... They can halve
Denmark's population or more than that in a much shorter time if they want
to do like their fellow Muslims did with the World Trade Centre", and
secondly, for stating with the intent of wider dissemination in an interview
at the party conference with a journalist that "The only difference between
Mohammedans and rats is that rats don't draw social benefits." In assessing
quantum, The Court relied on two previous convictions of Mr. Warming for
offences against section 266(b)(1) both by the High Court of Eastern Denmark
(on appeal) on 22 March 1999, and by the Copenhagen City Court on 30 January
2003.
2.16 On 17 March 2004, the Board of Appeal rejected Mr. Warming's
application for leave to appeal the Grindsted District Court's decision to
the High Court of Western Denmark. Mr. Rindal did not appeal the District
Court's decision in his case.
Proceedings Against the Progressive Party
2.17 The Thisted police rejected the complaint against the Progressive Party
on the basis that the State party's law, as it then stood, did not permit a
complaint of violation of section 266(b) to be filed against entities with
legal personality, including a political party. The Regional Public
Prosecutor subsequently upheld this decision.
2.18 On 11 December 2002, the DRC, at the petitioner's request, filed a new
complaint against Ms. Andersen with the Odense police (having jurisdiction
over her place of residence), arguing that in light of what is described in
paragraphs 2.1 to 2.5 above, she had participated in a violation of section
266(b) as a member of the Party's executive board. On 7 January 2002, the
Chief Police Constable of the Odense police rejected the complaint as there
was no reasonable evidence to support the conclusion that an unlawful act
had been committed by Ms. Andersen as a member of the Party's executive
board. He considered that membership of a political party's executive does
not of itself create a basis for criminal participation in relation to
possible criminal statements made during the party's annual meeting by other
persons. On 25 January 2002, the Odense District Court convicted Ms Andersen
of offences against section 266(b) of the Criminal Code for the publication
of the press releases.
2.19 On 11 March 2002, the Fyn Regional Public Prosecutor rejected the DRC's
appeal, on the basis that neither it nor the petitioner had the required
essential, direct, individual or legal interest in the case to become
parties to it. As a result, the DRC filed the petitioner's first petition
before the Committee on the Elimination of Racial Discrimination, which
found that there had been no violation with respect to the State party's
action concerning Ms. Andersen. [FN6] It emphasized that proceedings had
been lodged with respect to those directly responsible for the statements in
question at the party conference.
---------------------------------------------------------------------------------------------------------------------
[FN6] Quereshi v Denmark (No. 1), Case No 27/2002, Opinion adopted on 19
August 2003.
---------------------------------------------------------------------------------------------------------------------
The Complaint
3.1 The petitioner alleges two counts of violation of articles 2,
subparagraph 1(d), 4 and 6 of the Convention. He first alleged that the
State party failed to discharge its positive obligation to take effective
action to examine and investigate reported incidents of racial
discrimination, as the charge against Mr. Andreasen was discontinued, none
of the speakers at the party conference was prosecuted, and an investigation
of Ms. Andersen's role was not initiated. In his view, the failure to
prosecute those directly responsible for the statements (having initially
charged them) violated article 6, while the Regional Public Prosecutor's
decision (not subject to appeal by the petitioner) that Mr. Andreasen's
statements fell outside the scope of section 266(b) of the Criminal Code
violated article 2, subparagraph 1(d), of the Convention. The petitioner
relies on a decision of the High Court of Eastern Denmark of 1980 for the
proposition that such statements do fall within the scope of section 266(b).
3.2 Secondly, the petitioner argues that the decision of the Public
Prosecutor to discontinue Mr. Andreasen's case, confirmed on grounds of lack
of standing by the Ministry of Justice, violates the obligation imposed by
the same articles, but especially article 6, to ensure effective protection
and remedies against any act of racial discrimination. In his view, as a
result of these decisions, he could not take action against the acts of
racial discrimination to which he had been exposed, as part of a group of
persons against whom the statements were directed.
3.3 As to the exhaustion of domestic remedies, the petitioner argues that to
take (unspecified) legal actions directly against Mr. Andreasen would not be
effective given the rejection of the complaint by the Regional Public
Prosecutor and the Ministry of Justice. The petitioner also contends that a
complaint under section 26 of the Act on Civil Liability (providing civil
damages for infringements of a person's honour and reputation) would be
ineffective, citing a 1999 decision of the Eastern High Court to the effect
that racial discrimination does not in itself give rise to a claim for
compensation to the offended person under the section in question. The
petitioner also rejects any possible constitutional remedy under section 63
of the Constitution (providing for review of scope of executive authority),
claiming that it is necessary to have the status of a party to the case in
order to bring such an action. This petitioner was however denied such
status both by the Regional Public Prosecutor (in the earlier decision
concerning the case of Ms. Pia Andersen, see paragraph 2.19, supra) and by
the Ministry of Justice in the current case.
State Party's Submissions on the Admissibility and Merits of the Petition:
4.1 By submission of 17 June 2004, the State party contests both the
admissibility and the merits of the petition. He argues that the petitioner
has failed to exhaust domestic remedies available in criminal proceedings in
three respects. Firstly, the petitioner only appealed the DPP's decision of
14 August 2003 related to Mr. Andreasen, and did not appeal any of the DPP's
decisions on the other individuals concerned. In respect of those
individuals, therefore, domestic remedies have not been exhausted.
4.2 Secondly, the State party repeats its argument, also advanced in the
petitioner's first petition to the Committee, that section 63 of the
Constitution enables decisions of administrative authorities, including the
DPP and the Ministry of Justice, to be rewied as to their lawfulness before
the courts. It rejects the petitioner's argument that such an application
would be ineffective as a result of the DPP's refusal to prefer charges and
the Ministry's finding the petitioner's appeal to be inadmissible. On the
contrary, the petitioner could have applied to the courts for a review of
whether the DPP's view of the scope of section 266(b)(1) or of the
Ministry's view of his standing was correct. The DPP's decisions on the
other cases could also have been reviewed. Thirdly, the State party argues
that even where a prosecution under section 266(b)(1) of the Criminal Code
has not been pursued, a private prosecution under section 267 of the
Criminal Code [FN7] protecting personal honour is available. In Sadic v
Denmark, FN8 the Committee accepted, in circumstances where a complaint
under section 266(b) had not been pursued by the police, that the
requirements of section 267 are different and a petitioner should be
expected that exhaust that alternative and effective remedy before
approaching the Committee.
---------------------------------------------------------------------------------------------------------------------
[FN7] Section 267 of the Criminal Code provides: "(1) Any person who
violates the personal honour of another by offensive words or conduct or by
making or spreading allegations of an act likely to disparage him in the
esteem of his fellow citizens, shall be liable to a fine or imprisonment for
any term not exceeding four months."
FN8 Case No 25/2002, Opinion adopted on 25 May 2002.
---------------------------------------------------------------------------------------------------------------------
4.3 On the merits, the State party argues that the petition discloses no
violation of the Convention. As to alleged violations of articles 2, 4 and 6
arising from the processing and assessment of the criminal complaints
lodged, the thorough treatment at both the levels of police, Regional Public
Prosecutor and DPP fully met the State Party's obligation to take effective
action. The State party points out that the Convention does not guarantee of
specific outcome on allegations of conduct in breach of the Convention, but
rather sets out certain parameters for the processing of such allegations.
The State party's authorities complied with their duty to initiate a proper
investigation, carried it out with due diligence and expedition in order to
determine whether or not an act of racial discrimination took place. Upon
such investigation, some complaints - those against Messrs. Rindal and
Warming concerning their conference statements - were found to make out a
case to answer, while in others no basis for prosecution was found.
4.4 For those cases for which it was determined not to proceed further, the
State party argues that each result was the product of careful and proper
individual investigation and justified on the merits of each complaint. In
the case of the drawing allegedly distributed by Mr. Warming, the police
questioned both Mr. Warming and the journalist who had allegedly been
offered the drawing before concluding that there was no basis for
prosecution. The State party emphasizes that the Convention does not require
every investigation of every case reported to the police to result in
prosecution, including, for example, if the requisite proof is not
available.
4.5 Concerning the DPP's decision on Ms. Petersen that the resources
involved in a prosecution would not be commensurate with the punishment
expected, the State party observes that the Regional Public Prosecutor
procured a transcript of the video tape of the television broadcast and
questioned Ms. Petersen, disclosing sufficient examination of the case. The
DPP estimated, that Ms. Petersen's earlier sentence of 20 November 2001, (20
day fines of DKK 300 for violating section 266(b)(1) would not have been
much more severe if the current complaint had been included in that case,
thus justifying the DPP's decision under section 89 of the Criminal Code not
to proceed. The State party also recalls that her conference statements were
in the nature of a summary of her earlier trial and conviction. The case was
thus examined in accordance with the requirements of the Convention.
4.6 As to the decision that it was impossible to determine the context of
Mr. Glistrup's statement, the State party notes that the police questioned
him and the journalist involved, and procured a transcript of the tape of
the television broadcast, on which the alleged statement at the rostrum did
not appear. The State party observes that it is important for due process
reasons that evidence be of a certain probity before being put to the courts
in criminal proceedings. The withdrawal of charges in this case, having been
found inadequate in evidentiary terms, followed effective investigation
consistent with the Convention.
4.7 Concerning the decisions on Messrs. Andreasen and Sørensen that the
actus reus of the offence requiring statements concerning groups of persons
on account of race, colour, national or ethnic origin had not been made out
with use of terms such as "foreigners" and "fifth columnists", the State
party points out that section 266(b) clearly identifies the specific groups
to be covered. It points out that the 1980 decision of the High Court of
Eastern Denmark referred to by the petitioner found that the designation
"guest worker" did fall within "a group of persons", within the meaning of
section 266(b). The Court emphasized, however, that according to general
understanding that expression designated a person living in Denmark of
Ssouth European, Asian or African origin, particularly Yugoslavs, Turks or
Pakistanis. Unlike the much broader terms at issue in the present case,
therefore, this conclusion was possible as the designation was used to refer
to persons originating from specific countries. The finding that it was
impossible to establish that the terms used by Messrs. Andreasen and
Sørensen concerned a specific group of people characterized by race, colour,
national or ethnic origin thus followed an examination in accordance with
the Convention's requirements.
4.8 The State party argues that section 266(b), as applied in practice and
detailed in its 14th and 15th reports to the Committee, satisfies the State
party's obligation under article 2(1)(d) of the Convention to prohibit and
end, by appropriate means including legislation, all racial discrimination.
As to portion of the complaint concerning the petitioner's inability to
appeal the decision concerning Mr. Andreasen, the State party refers to its
admissibility submissions for the available possibilities of a
constitutional complaint and a private prosecution under section 267 of the
Criminal Code.
The Petitioner's Comments on the State Party's Submissions
5.1 By letter of 2 August 2004, the petitioner disputes the State party's
submissions on admissibility and reiterates his earlier submissions on the
merits. On the possibility of a constitutional complaint challenging the
decisions of the DPP and Ministry of Justice, he argues that since the
Ministry itself declared that he had no essential, direct and individual
interest in the case which would confer standing, it would not be correct to
place an obligation on him to pursue such a case and delay the possibility
of a petition to the Committee. In any event, even if a court found that he
did have standing, this would be futile, as the deadline for bringing a
prosecution (related to the Ministry's decision) has passed. Thus, in
violation of articles 4 and 6 of the Convention, no sanction can ever be
imposed on Mr. Andreasen.
5.2 Concerning a private prosecution under section 267 of the Criminal Code,
the petitioner argues that, whether or not Mr. Andreasen's statement fell
within the scope of that provision, a court would reject such a claim on the
basis that he had no essential, direct and individual interest in the case.
He thus again argues that it would not be appropriate to require him to
pursue such an avenue and delay a petition to the Committee.
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 On the issue of exhaustion of domestic remedies, the Committee notes
that the petitioner confines his complaint to the handling of the complaint
made against Mr. Andreasen, a case in which he did appeal to the Ministry of
Justice. The Committee thus need not address the argument that the
petitioner did not also appeal the adverse decisions in certain other cases,
though the Committee would note that there is nothing to suggest that the
Ministry's decision of lack of standing would have been any different in
those cases.
6.3 Turning to the State party's argument that the petitioner should have
initiated a private prosecution under the general provisions of section 267
of the Criminal Code, the Committee recalls that, in its Opinion in Sadic
Op.cit., [FN9] it indeed required the petitioner in that case to pursue such
a course. In that case, however, the facts fell outside the scope of section
266(b) of the Criminal Code on the basis that the disputed comments were
essentially private or were made within a very limited circle; in that
light, section 267, which could capture the conduct in question complemented
the scope of protection of section 266(b) and was a reasonable course more
appropriate to the facts of that case. In the present case, by contrast, the
statements were made squarely in the public arena, which is the central
focus of both the Convention and section 266(b). It would thus be
unreasonable to expect the petitioner to initiate separate proceedings under
the general provisions of section 267 after having unsuccessfully invoked
section 266(b) of the Danish Criminal Code in respect of circumstances
directly implicating the language and object of that provision.
---------------------------------------------------------------------------------------------------------------------
[FN9] Op.cit.
---------------------------------------------------------------------------------------------------------------------
6.4 As to the State party's argument that judicial review of the DPP and
Ministry's decisions in the form of a constitutional application remained
available, the Committee recalls that the petitioner pursued his complaint
through four levels of administrative decision-making in a process lasting
just weeks short of two years, with respect to facts which were in the
public domain from the outset and which did not require complex
investigation. In those circumstances, the Committee considers that the
application of further remedies in the courts at the present time would be
unreasonably prolonged within the meaning of article 14, paragraph 7(a), of
the Convention. They thus need not be exhausted for the purposes of the
present complaint. The Committee notes, moreover, that the petitioner has
questioned the effectiveness of such an application, arguing that as the
deadline for prosecution had passed any judicial decision on the legality of
action taken would be devoid of practical effect for the proceedings in
question.
6.5 In light of the foregoing and in the absence of any other objection to
the admissibility of the petition, the Committee declares it admissible and
proceeds to the examination of the merits.
Consideration of the Merits
7.1 Acting under article 14, paragraph 7 (a), of the International
Convention on the Elimination of All Forms of Racial Discrimination, the
Committee has considered the information submitted by the petitioner and the
State party.
7.2 The Committee recalls that in its decision on the first petition
presented by the complainant it emphasized that the focus of its examination
was on steps taken on the basis of the State party's legislation, primarily
criminal, against the individual actors alleged to have personally engaged
in an act of racial discrimination. Thus, in that case, it noted that Ms.
Andersen had been convicted for the conduct she had personally engaged in.
[FN10] In the present case, two speakers at the party conference were
convicted and sentenced for violations against of 266(b) of the Criminal
Code. [FN11] Indeed, one of those speakers was given a more severe sentence
after two earlier convictions less severe and lower sentences for offences
against section 266(b). Meanwhile, a further speaker was not further
prosecuted on the basis that her sentence would not have been materially
greater in comparison to what she had already incurred under an earlier
conviction under section 266(b). [FN12] With respect to another speaker's
statement, the investigation carried out showed that the statement alleged
to have been made from the rostrum had not in fact occurred. [FN13] It is
against this background of operation of the State party's criminalization of
acts of statements of racial discrimination, both in respect of instances
outside the present party conference as well as of statements made at the
conference, that the merits of the petition concerning resolution of the
complaint against Mr. Andreasen must be considered.
---------------------------------------------------------------------------------------------------------------------
[FN10] See paragraph 2.18, supra.
[FN11] See paragraph 2.15, supra.
[FN12] See paragraph 2.13, supra.
[FN13] Ibid.
---------------------------------------------------------------------------------------------------------------------
7.3 The Committee recalls that Mr. Andreasen made offensive statements about
"foreigners" at the party conference. The Committee notes that, about
regardless of what may have been the position in the State party on the
past, a general reference to foreigners does not at present single out a
group of persons, contrary to article 1 of the Convention, on the basis of a
specific race, ethnicity, colour, descent or national or ethnic origin. The
Committee is thus unable to conclude that the State party's authorities
reached an inappropriate conclusion in determining that Mr. Andreasen's
statement, in contrast to the more specific statements of the other
speakers, at the party of the conference, did not amount to an act of racial
discrimination, contrary to section 266(b) of the Danish Criminal Code. It
also follows that the petitioner was not deprived of the right to an
effective remedy for an act of racial discrimination in respect of Mr.
Andreasen's statement.
8. Nevertheless, the Committee considers itself obliged to call the State
party's attention (i) to the hateful nature of the comments concerning
foreigners made by Mr. Andreasen and of the particular seriousness of such
speech when made by political figures, and, in this context, (ii) to its
General Recommendation 30, adopted at its 64th session, on discrimination
against non-citizens.
9. The Committee on the Elimination of Racial Discrimination, acting under
article 14, paragraph 7, of the Convention, is of the opinion that the facts
before it do not disclose a violation of the Convention.
|
|