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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 15 August 2005
Adopts the following:
Opinion
1. The authors of the communication, dated 17 June 2003, are Mr. Rolf
Kirchner, born on 12 July 1946, leader of the Jewish community in Oslo, Mr.
Julius Paltiel, born on 4 July 1924, leader of the Jewish community in
Trondheim, and Nadeem Butt, born on 16 June 1969, leader of the Norwegian
Antiracist Centre (NAC). They claim to be victims of violations by Norway
[FN1] of articles 4 and 6 of the Convention. They are represented by
counsel.
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[FN1] Norway recognized the competence of the Committee to receive and
consider communications under article 14 by declaration of 23 March 1976.
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The Facts as Presented:
2.1 On 19 August 2000, a group known as the 'Bootboys' organized and
participated in a march in commemoration of the Nazi leader Rudolf Hess in
Askim, near Oslo. Some 38 people took place in the march, which was routed
over 500 meters through the centre of Askim, and lasted 5 minutes. The
participants wore 'semi-military' uniforms, and a significant number
allegedly had criminal convictions. Many of the participants had their faces
covered. The march was headed by Mr. Terje Sjolie. Upon reaching the town
square, Mr. Sjolie made a speech, in which he stated:
'We are gathered here to honor our great hero, Rudolf Hess, for his brave
attempt to save Germany and Europe from Bolshevism and Jewry during the
Second World War. While we stand here, over 15,000 Communists and Jew-lovers
are gathered at Youngsroget in a demonstration against freedom of speech and
the white race. Every day immigrants rob, rape and kill Norwegians, every
day our people and country are being plundered and destroyed by the Jews,
who suck our country empty of wealth and replace it with immoral and
un-Norwegian thoughts. We were prohibited from marching in Oslo three times,
whilst the Communists did not even need to ask. Is this freedom of speech?
Is this democracy? ...
Our dear Führer Adolf Hitler and Rudolf Hess sat in prison for what they
believed in, we shall not depart from their principles and heroic efforts,
on the contrary we shall follow in their footsteps and fight for what we
believe in, namely a Norway built on National Socialism ...' [FN2]
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[FN2] The speech was recorded on video by the magazine 'Monitor'. It was
later used in the criminal proceedings against Mr. Sjolie.
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2.2 After the speech, Mr. Sjolie asked for a minute's silence in honor of
Rudolf Hess. The crowd, led by Mr. Sjolie, then repeatedly made the Nazi
salute and shouted 'Sieg Heil'. They then left the scene.
2.3 The authors claim that the immediate effect of the march appeared to be
the founding of a Bootboys branch in nearby Kristiansand, and that for the
next 12 months the city was 'plagued' by what the authors describe as
incidents of violence directed against blacks and political opponents. They
further state that, in the Oslo area, the march appears to have given the
Bootboys confidence, and that there was an increase in 'Nazi' activity.
Several violent incidents took place, including the murder by stabbing on 26
January 2001 of a 15 year old boy, Benjamin Hermansen, who was the son of a
Ghanaian man and a Norwegian woman. Three members of the Bootboys were later
charged and convicted in connection with his death; one was convicted of
murder with aggravating circumstances, because of the racist motive of the
attack. The authors state that he and one of the other persons convicted in
this case had participated in the march on 19 August 2000.
2.4 The authors state that the Bootboys have a reputation in Norway for
their propensity to use violence, and cite 21 particular instances of both
threats and the use of violence by the Bootboys between February 1998 and
February 2002. Mr. Sjolie himself is currently serving a term of
imprisonment for attempted murder in relation to an incident in which he
shot another gang member.
2.5 Some of those who witnessed the commemoration march filed a complaint
with the police. On 23 February 2001, the District Attorney of Oslo charged
Mr. Sjolie with a violation of section 135a of the Norwegian Penal Code;
this prohibits a person from threatening, insulting, or subjecting to
hatred, persecution or contempt, any person or group of persons because of
their creed, race, color or national or ethnic origin. The offence carries a
penalty of fines or a term of imprisonment of up to two years.
2.6 On 16 March 2001, Mr. Sjolie was acquitted by the Halden City Court. The
prosecutor appealed to the Borgarting Court of Appeal, where Mr. Sjolie was
convicted of a violation of section 135a, because of the references in his
speech to Jews. The Court of Appeal found that, at the least, the speech had
to be understood as accepting the mass extermination of the Jews, and that
this constituted a violation of section 135a.
2.7 Mr. Sjolie appealed to the Supreme Court. On 17 December 2002, the
Supreme Court, by a majority of 11 to 6, overturned the conviction. It found
that penalizing approval of Nazism would involve prohibiting Nazi
organizations, which it considered would go too far and be incompatible with
the right to freedom of speech. [FN3] The majority also considered that the
statements in the speech were simply Nazi rhetoric, and did nothing more
than express support for National Socialist ideology. It did not amount to
approval of the persecution and mass extermination of the Jews during the
Second World War. It held that there was nothing that particularly linked
Rudolph Hess to the extermination of the Jews; noted that many Nazis denied
that the holocaust had happened; and that it was not known what Mr. Sjolie's
views on this particular subject were. The majority held that the speech
contained derogatory and offensive remarks, but that no actual threats were
made, nor any instructions to carry out any particular actions. The authors
note that the majority of the Court considered article 4 of the Convention
not to entail an obligation to prohibit the dissemination of ideas of racial
superiority, contrary to the Committee's position as set out in General
Recommendation 15.
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[FN3] Section 100 of the Norwegian Constitution guarantees the right to
freedom of speech.
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2.8 The authors claim that the decision will serve as a precedent in cases
involving s135a of the Penal Code, and that it will henceforth not be
possible to prosecute Nazi propaganda and behavior such as that which
occurred during the march of 19 August 2000. Following the Supreme Court
decision, the Director of Public Prosecution expressed the view that, in
light of the Supreme Court's decision, Norway would be a safe have for Nazi
marches, due to the prohibition on such marches in neighboring countries.
The Complaint:
3.1 The author's contend that they are victims of violations by the State
party of articles 4 and 6 of the Convention. They allege that, as a result
of the Supreme Court's judgment of 17 December 2002, they were not afforded
protection against the dissemination of ideas of racial discrimination and
hatred, as well as incitement to such acts, during the march of 19 August
2000; and that they were not afforded a remedy against this conduct, as
required by the Convention.
Status as Victims
3.2 The authors argue that they are victims of the above violations because
of the general inability of Norwegian law to protect them adequately against
the dissemination of anti-Semitic and racist propaganda, and incitement to
racial discrimination, hatred and violence. They concede that the Committee
has not previously had the opportunity to consider the concept of 'victim'
in this context, but submit that the Committee should adopt the approach of
both the UN Human Rights Committee and the European Court of Human Rights.
They state that the 'victim' requirement in the three Conventions is framed
in equivalent terms, and submit that the Human Rights Committee and the
European Court have recognized that, by the mere existence of particular
domestic laws, a person's rights may be directly affected in a way which
results in them being a victim of violations. Reference is made to the
decisions of the Human Rights Committee in Toonen v Australia [FN4] and
Ballantyne et al v Canada [FN5], and the decision of the European Court of
Human Rights in Dudgeon v United Kingdom [FN6].In the Toonen case, the Human
Rights Committee held that the author could claim to be a victim of a
violation of his right to privacy because of the existence of a provincial
law which criminalized sexual relations between consenting male adults, even
though the author had not been prosecuted. An analogous result was reached
by the European Court in the Dudgeon case. Similarly, in Ballantyne, a case
involving the prohibition in Quebec of the use of the English language in
public outdoor advertising, the Human Rights Committee found that the author
could claim to be a victim, although he had not been prosecuted under the
relevant legislation. The authors claim that these cases demonstrate that
the 'victim' requirement may be satisfied by all members of a particular
group, as the mere existence of a particular legal regime may directly
affect the rights of the individual victims within the group. In this
instance, the authors contend that they, together with any other Jew,
immigrant or others facing an imminent risk of suffering racial
discrimination, hatred or violence, can claim to be victims of violations of
articles 4 and 6 of the Convention.
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[FN4] Communication No 488/1992, Views adopted 31 March 1994.
[FN5] Communication No 359 and 385/1989, Views adopted 31 March 1993.
[FN6] Judgment of 23 September 1981, series A-45.
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3.3 The authors submit that they are victims notwithstanding the absence of
any direct confrontation with the participants in the march. In this regard,
it must be recalled that the Convention is concerned not only with the
dissemination of racists ideas as such, but also the effects of this
(article 1, paragraph 1). Further, it will rarely be the case that racist
views are imparted directly to persons of the race concerned - it will
usually be the case that the views are disseminated to likeminded people. If
article 4 were not to be read in this context, it would be rendered
ineffective.
3.4 The authors also refer to decisions of the European Court of Human
Rights, which recognize the right of a potential victim to bring a claim
against alleged human rights violation. In Campbell and Cosans v United
Kingdom, [FN7] the Court held that a schoolboy could claim to be a victim of
a violation of article 3 of the Convention due to the existence of corporal
punishment as a disciplinary measure at the school he attended, even though
he himself had never been subjected to it. The general threat of being
subjected to such treatment was sufficient to substantiate his claim of
being a 'victim'. The authors contend that the existence of violent Nazi
groups in Norway, together with the state of Norwegian law after the Supreme
Court judgment in the Sjolie case, entail a real and imminent risk of being
exposed to the effects of dissemination of ideas of racial superiority and
incitement to racial hatred and violence, without them being protected, or
provided with a remedy, as required by articles 4 and 6 of the Convention.
---------------------------------------------------------------------------------------------------------------------FN7
Applications No 7511/76 and 7743/76.
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3.5 The authors further state that, in any event, they have already been
personally affected by the alleged violations. The march and speech referred
to had a serious adverse effect on Mr. Paltiel, who survived a concentration
camp during the war, and who has previously had threats made on his life
because of his educational work. The same considerations apply to Mr.
Kirchner, whose family was also deeply affected by the persecution of Jews
during the war. In addition, the petitioners which are organizations are
directly affected, as it is said they will no longer be able to rely on the
protection of the law in conducting their work. They argue that the Supreme
Court's decision hands over the task of protecting against the effects of
racist advocacy to private organizations, and creates new responsibilities
for those who are the targets of the racial discrimination.
Exhaustion of Domestic Remedies
3.6 The authors submit that there are no available domestic remedies to be
exhausted. The decision of the Supreme Court is final and there is no
possibility of appeal.
On the Merits
3.7 In relation to the merits of the claim, the authors refer to the
Committee's General Recommendation No 15, paragraph 3, which requires States
parties to penalize four categories of misconduct: dissemination of ideas
based on racial superiority or hatred; incitement to racial hatred; acts of
violence against any race, and incitement to such acts. They consider that
the decision of the Supreme Court is incompatible with the Committee's
General Recommendation in relation to article 4 in this regard.
3.8 The authors note that, in the Committee's recent concluding observations
on Norway's 15th periodic report, it noted that the prohibition on
dissemination of racial hatred is compatible with the right to freedom of
speech; article 20 of the International Covenant on Civil and Political
Rights stipulates the same. The authors invoke paragraph 6 of General
Recommendation No 15, which states that organizations which promote and
incite racial discrimination shall be prohibited, and submit that the State
party's alleged failure to meet these requirements has been noted with
concern by the Committee on previous occasions. [FN8] The authors submit
that it is fully acceptable for a State party to protect democratic society
against anti-democratic propaganda. In particular, they state that there is
no basis for the Supreme Court's conclusion that article 4 of the Convention
does not require States parties to penalize the dissemination of ideas of
racial superiority, given the Committee's clear position on this issue.
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[FN8] The author refers to the 12th to 14th Period Reports (1996/1997) ,
Concluding Observations adopted by CERD at its 1242nd meeting (51st Session)
on 21 August 1997, paragraph 13; and 15th Periodic Report (1999), Concluding
Observations by CERD adopted at its 1434th meeting (57th Session) held on 23
August 2000, paragraph 14.
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3.9 The authors contend that the Supreme Court underestimated the danger of
what it termed 'Nazi rhetoric', and that the object of article 4 is to
combat racism at its roots. As the Supreme Court minority pointed out, Mr.
Sjolie's speech accepted and encouraged violent attacks on Jews, and paid
homage to their mass extermination during World War II. In particular, the
declaration that the group would follow in the Nazi's footsteps and fight
for what they believed in had to be understood as an acceptance of and
incitement to violent acts against Jews. The use of the Nazi salute made
clear that the gathering was not peaceful, and, given the Bootboys' record
of violence, the commemoration march was frightening and the incitement to
violence evident.
3.10 The authors state that, in light of the Supreme Court's decision,
section 135a of the Penal Code is unacceptable as a standard for protection
against racism. They therefore argue that the State party violated article 4
of the Convention, and consequently violated article 6, as the legal regime
laid down by the Supreme Court necessarily implies that no remedies, such as
compensation, can be sought.
Observations by the State Party
4.1 By note dated 3 October 2003, the State party challenges the
admissibility of the communication, and requests that the Committee address
the question of admissibility separately from the merits.
4.2 It submits that the authors' communication amounts to an actio popularis,
the aim of which is to have the Committee assess and evaluate the
relationship between section 135a of the Penal Code, as applied by the
Supreme Court, and article 4 of the Convention. The State party considers
that issues of such a general nature are best dealt with by the Committee
under the reporting procedure. It notes that the Committee recently
addressed this very issue when considering the 16th report of the State
party; the Committee had noted with concern that the strict interpretation
of section 135a may not cover all aspects of article 4(a) of the Convention
and invited the State party to review this provision and provide information
to the Committee in its next periodic report. [FN9] The State party submits
that it is currently preparing a white paper on proposed amendments to
section 100 of the Constitution, which guarantees freedom of speech, and the
scope of s135a of the Penal Code. The State party assures the Committee that
its Concluding Observations will be a weighty consideration in considering
relevant amendments to these provisions.
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[FN9] Paragraph 12, Concluding Observations dated 22 August 2003.
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4.3 The State party submits that neither the Jewish Communities of Oslo and
Trondheim, nor the Antiracist Centre, can be considered 'groups of
individuals' for the purposes of article 14, paragraph 1. The Jewish
Communities are religious congregations comprising numerous members. The
Antiracist Centre is a non-governmental organization which seeks to promote
human rights and equal opportunity, and conducts research on racism and
racial discrimination. The State party submits that, whilst the
jurisprudence of the Committee is silent on this issue, a 'group of
individuals' should be understood as meaning a group of which every
individual member could claim to be a victim of the alleged violation. What
is significant is not the group per se, but those individuals who comprise
it. It is the individuals, rather than the groups, which have standing.
4.4 In relation to the individual authors, Mr. Kirchner, Mr. Paltiel and Mr.
Butt, the State party contends that they have not exhausted domestic
remedies. It refers to the decision of the Committee in the case of POEM and
FASM v Denmark, where it noted that the petitioners had not been plaintiffs
in any domestic proceedings, and considered that it was a 'basic requirement
of admissibility' that domestic remedies be exhausted 'by the petitioners
themselves'. [FN10] The State party notes that none of the individual
petitioners in the present case was a party to the domestic proceedings
leading to the Supreme Court's judgment, and that the only complaint about
the incident to the police was made by a local politician in the town of
Askim. It states that the petitioners have not filed any complaints with the
domestic authorities or made any requests for protection.
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[FN10] Communication 22 of 2002, decision of 19 March 2003; paragraph 6.3.
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4.5 The State party contends that the authors are not 'victims' for the
purpose of article 14, paragraph 1. There have only been two instances in
which the Committee has appeared to find that article 4 gives rise to an
individual right, capable of being invoked in the context of a communication
under article 14 of the Convention. In both of those cases, the racist
expressions had been directed specifically at the petitioners in question,
and had involved adverse effects on their substantive rights under article
5. By contrast, none of the petitioners in this case was present when the
remarks were made during the commemoration march. They were not personally
targeted by the remarks, nor have they specified how, if at all, their
substantive rights under article 5 were affected by the comments of Mr.
Sjolie. Accordingly, the State party contends that the authors are not
victims for the purpose of article 14, paragraph 1.
Comments by the Petitioners
5.1 In comments on the State party's submissions of 2 December 2003, the
authors contend that the communication is truly individual in nature. They
state that, in any event, the issue of inadequate protection against racist
speech under article 4 had been an issue in the Committee's dialogue with
the State party for some time, and that the concerns expressed by the
Committee in its Concluding Observations have had little impact on the State
party.
5.2 The authors reiterate that the Jewish Communities and the Antiracist
Centre should be considered 'groups of individuals' for the purpose of
article 14 of the Convention, and that they have standing to submit
communications to the Committee. They note that there is nothing in the
wording of article 14 which supports the interpretation that all members of
the group must be able to claim victim status on their own. If such a strict
reading were applied, the words 'groups of individuals' would be deprived of
any independent meaning. They contrast the wording of article 14, paragraph
1, with the corresponding provision in the Optional Protocol to the
International Covenant on Civil and Political Rights, [FN11] which provides
that only individuals may submit complaints for consideration by the Human
Rights Committee. They contend that the expression 'groups of individuals',
whatever its outer limits may be, clearly covers entities that organize
individuals for a specific, common purpose, such as congregations and
membership organizations.
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[FN11] Article 1.
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5.3 As to the requirement of exhaustion of domestic remedies, the authors
claim that, in light of the judgment of the Supreme Court, any legal
proceedings taken by them in Norway would have no prospect of success. They
invoke a decision of the European Court of Human Rights to the effect that
the obligation to exhaust domestic remedies did not apply in circumstances
where, due to an authoritative interpretation of the law by domestic
judicial authorities, any legal action by the petitioners would be
pointless. [FN12] They argue that the same approach should be adopted by the
Committee in relation to article 14 of the Convention. Thus, even if the
authors had not exhausted domestic remedies, the Supreme Court dispensed
with this requirement by handing down a final and authoritative
interpretation of the relevant law.
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[FN12] Case of Open Door and Dublin Well Women v Ireland, judgment of 23
September 1992.
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5.4 On the State party's submission that they are not 'victims' for the
purpose of article 14, the petitioners reiterate that article 4 guarantees
to individuals and groups of individuals a right to be protected against
hate speech. Failure to afford adequate protection against hate speech is of
itself a violation of the individual rights of those who are directly
affected by the State's failure to fulfill its obligations. They reiterate
that, just as a person's status as a potential victim may arise when people
are formally required to breach the law in order to enjoy their rights, so
too may it arise where the domestic law or a Court's decision impedes the
individual's future enjoyment of Convention rights. They further state that,
in the present case, the individual authors are public figures and leaders
of their respective Jewish communities, and therefore potential victims of
violations of the Convention. Mr. Paltiel has received death threats by
Neo-Nazi groups in the past. However, the intent of article 4 is to fight
racism at its roots; there is a causal link between hate speech of the type
made by Mr. Sjolie, and serious violent racist acts. Persons like Mr.
Paltiel are seriously affected by the lack of protection against hate
speech. It is submitted that all the authors belong to groups of obvious
potential victims of hate speech, against which Norwegian law affords no
protection. They claim that there is a high degree of possibility that they
will be adversely affected by the violation of article 4 of the Convention.
5.5 In a further submission dated 20 February 2004, the petitioners draw the
Committee's attention to the Third Report of the European Commission against
Racism and Intolerance (ECRI) on Norway, dated 27 June 2003. In this report,
the ECRI stated that Norwegian legislation did not provide individuals with
adequate protection against racist expression, particularly in light of the
Supreme Court's judgment in the Sjolie case. The ECRI recommended that
Norway strengthen protection against racist expression through relevant
amendments to its Constitution and criminal law.
Committee's Request for Clarification from the State Party
6.1 At its 64th session, the Committee instructed the Secretariat to seek
clarification from the State party as to whether, under Norwegian law, any
of the petitioners could have requested to become a party to the criminal
proceedings instituted after the remarks made by Mr. Sjolie on the occasion
of the march of the 'Bootboys'; and, in the affirmative, to clarify whether
intervention by the petitioners as third parties would have had any prospect
of success. The request for clarification was sent to the State party on 3
March 2004; it was also transmitted for information to the petitioners.
6.2 By letter of 19 June 2004, the petitioners submitted that they had no
possibility of participating in the criminal proceedings that had been
instigated in relation to the 'Bootboys' march; they also added that they
had not suffered any pecuniary loss which could form the basis of a civil
claim.
6.3 In its submission dated 19 August 2004, the State party advised that the
petitioners were not at liberty to institute private criminal proceedings or
to join the public prosecution against Mr. Sjolie for alleged breaches of
s135a. However, it submits that the lack of such a possibility has no
bearing on the question of whether the petitioners had exhausted domestic
remedies, and states that the present case is indistinguishable from the
Committee's decision in POEM and FASM v Denmark, referred to in paragraph
4.3 above, where the Committee had found the communication in question to be
inadmissible, as none of the petitioners had been plaintiffs in the domestic
proceedings. The State party submits that there is no significant difference
between Norwegian and Danish criminal procedure law as regards the
possibility of instituting private criminal proceedings or joining a public
prosecution of racist expression. In the Danish case, as in the instant
case, the communication was admissible because the petitioners did not take
any procedural steps to secure the conviction of the alleged perpetrator. In
the Danish case, as in the present case, the petitioners had not filed
complaints with the police. None of the petitioners took any steps to
address the statements of Mr. Sjolie before presenting their communication
to the Committee, some three years after the comments were made. The State
party submits that there is no basis to distinguish the present case from
the Committee's earlier decision in the Danish case.
6.4 The State party further submits that the individual petitioners, and
most likely the Jewish Communities, could have filed proceedings against Mr.
Sjolie for criminal defamation, which is open to persons who feel targeted
by denigrating or defamatory speech under articles 246 and 247 of the
Criminal Code. Had they done this, the petitioners could have joined their
action for criminal defamation to the criminal proceedings already underway
against Mr. Sjolie. The petitioners could thereby have had an impact on the
proceedings. While sections 246 and 247 are not directed specifically
against discrimination, they are applicable also to racist statements. In
its decision in Sadic v Denmark, [FN13] the Committee noted that the notion
of an 'effective remedy' for the purposes of article 6 of the Convention is
'not limited to criminal prosecutions based on provisions which
specifically, expressly and exclusively penalize acts of racial
discrimination.' It extends to 'general provisions criminalizing defamatory
statements, which is applicable to racist statements'. The Committee stated
in the same decision that 'mere doubts about the effectiveness of available
civil remedies do not absolve a petitioner from pursuing.
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[FN13] Communication 25/2002, 21 March 2002, paragraph 6.3.
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6.5 Finally, the State party submits that, should the Committee declare the
communication admissible and consider it on the merits, it should bear in
mind that the government is proposing significant enhancements of the
protection offered by s135a, and that a White Paper has been presented to
Parliament on possible amendments to s100 of the Norwegian Constitution. It
is too early to inform about the outcome of the legislative process, and the
State party will elaborate further upon this in the course of its next
periodic report to the Committee.
6.6 In their reply dated 22 August 2004, the petitioners state that the
Danish case referred to by the State party is distinguishable from their own
case, as the criminal proceedings in that case had been discontinued by the
police, without any action being taken by the authors to press civil or
criminal proceedings against the alleged perpetrator. In the present case,
Mr. Sjolie's comments were held by the Supreme Court to be protected by the
constitutional right to freedom of speech, and consequently any action by
the authors would be futile. They further submit that the applicability of
defamation law to racist speech is an unresolved issue in Norwegian law, and
for this reason defamation laws are not invoked in cases dealing with racist
speech. They state that it would have been untenable for the authors to seek
to consolidate defamation proceedings to the criminal proceedings instituted
by the authorities; they are not aware of this ever having happened before.
Decision on Admissibility
7.1 At its 65th and 66th sessions, the Committee considered the
admissibility of the communication.
7.2 The Committee noted the State party's submission that the authors had
not exhausted domestic remedies because none of them complained to the
authorities about Mr. Sjolie's conduct; reference was made to the
Committee's decision in the POEM and FASM case. However, as the authors
pointed out, the POEM and FASM case involved criminal proceedings which were
discontinued by the police, without any action being taken on the part of
the authors to have the proceedings re-instigated. The present case involved
an authoritative decision by the highest Norwegian Court to acquit a person
accused of racist statements. In the former case, the authors could have
taken the initiative to protest the decision by the police to discontinue
the criminal proceedings, but did not. In the present case, the authors had
no possibility of altering the course of the criminal proceedings. Further,
Mr. Sjolie had now been acquitted and cannot be retried. The Committee
further noted that, in answer to the question asked of it by the Committee
during its 64th session, the State party confirmed that the authors could
not have requested to become a party to the criminal proceedings against Mr.
Sjolie. The State party submitted that the authors could have taken
defamation action against Mr. Sjolie. However, the authors contended that
the application of defamation laws to racist speech was an unresolved issue
in Norwegian law, and the Committee was not in a position to conclude that
such proceedings constituted a useful and effective domestic remedy. In the
circumstances, the Committee considered that there were no effective
domestic remedies to be exhausted, and that according no barrier to
admissibility arose in this regard.
7.3 The authors claimed that they were 'victims' of alleged violations of
articles 4 and 6 of the Convention because of the general inability of
Norwegian law to protect them against the dissemination of anti-Semitic and
racist propaganda. They also claimed that they were 'victims' because of
their membership of a particular group of potential victims; the authors,
together with any other Jews or immigrants, faced an imminent risk of
suffering racial discrimination, hatred or violence. They referred in
particular to the jurisprudence of other international human rights bodies
to support their argument. They invoked the decision of the Human Rights
Committee in the case of Toonen v Australia, where the very existence of a
particular legal regime was considered to have directly affected the
author's rights in such a way as to give rise to a violation of the
International Covenant on Civil and Political Rights. They also referred to
the decision of the European Court of Human Rights in Open Door and Dublin
Well Women v Ireland, in which the Court found certain authors to be
'victims' because they belonged to a class of persons which might in the
future be adversely affected by the acts complained of. [FN14] Similarly, in
the present case the authors stated that, following the decision of the
Supreme Court, they are at risk of being exposed to the effects of the
dissemination of ideas of racial superiority and incitement to racial
hatred, without being afforded adequate protection. They also submitted that
the decision contributed to an atmosphere in which acts of racism, including
acts of violence, are more likely to occur, and in this regard they referred
to specific incidents of violence and other 'Nazi' activities. The Committee
agreed with the authors' submissions; it saw no reason why it should not
adopt a similar approach to the concept of 'victim' status as was adopted in
the decisions referred to above. It considered that, in the circumstances,
the authors had established that they belong to a category of potential
victims.
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[FN14] See footnote 17 below, paragraph 44.
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7.4 The Committee did not consider the fact that three of the authors are
organizations posed any problem to admissibility. As has been noted, article
14 of the Convention refers specifically to the Committee's competence to
receive complaints from 'groups of individuals'. The Committee considered
that to interpret this provision in the way suggested by the State party,
namely to require that each individual within the group be an individual
victim of an alleged violation, would be to render meaningless the reference
to 'groups of individuals'. The Committee had not hitherto adopted such a
strict approach to these words. The Committee considered that, bearing in
mind the nature of the organisations' activities and the classes of person
they represent, they too satisfied the 'victim' requirement in article 14.
7.5 On 9 March 2005, the Committee therefore declared the communication
admissible.
State Party's Submissions on the Merits
8.1 By noted of 9 June 2005, the State party submits that there has been no
violation of articles 4 or 6 of the Convention. It states that, consistent
with the provisions of the Convention, article 135a of the Norwegian Penal
Code must be interpreted with due regard to the right to freedom of
expression. The State party's obligation to criminalize certain expressions
and statements must be balanced against the right to freedom of expression,
as protected by other international human rights instruments. [FN15] In the
present case, the Norwegian Supreme Court carefully assessed the case
following a full hearing, including arguments on the requirements of the
relevant international instruments. It concluded that the proper balance of
these rights resulted in there being no violation of article 135a in the
present case, a conclusion which the Court considered to be consistent with
the State party's obligations under the convention, taking account of the
'due regard' clause in article 4 of the Convention.
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[FN15] Reference is made to article 10 of the ECHR and article 19 of the
ICCPR.
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8.2 For the State party, States must enjoy a margin of appreciation in
balancing rights at the national level, and that this margin has not been
overstepped in the present case. The majority of the Supreme Court found
that s135a applied to remarks of a distinctly offensive character, including
remarks that incite or support violations of integrity and those which
entail a gross disparagement of a group's human dignity. The majority
considered that the remarks had to be interpreted in the light of the
context in which they were made and the likely perception of the remarks by
an ordinary member of the audience. [FN16] The State party submits that the
Committee should give due respect to the Supreme Court's interpretation of
these remarks, since it had thoroughly examined the entire case.
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[FN16] The State party draws the Committee's attention to the reasoning of
the majority set out on pages 11 and 12 of the English version of the
judgment, however the Court's conclusions in this regard are not summarized
in the submission. In the judgment, the majority concludes that various
remarks in question are 'absurd' 'defy rational interpretation', and
'cliché', that they expressed no more than general support for Nazi
ideology, which according to the majority did not imply support for the
extermination, or other systematic and serious acts of violence against
Jews. Hess, in whose memory the march was held, was not particularly
associated with Holocaust. The majority also notes that the group of
Sjolie's supporters was small, and those opposing the speech were in the
majority and able to voice their disapproval.
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8.3 The State party submits that the Committee's General Recommendation 15
should be interpreted as recognizing that the application of article 4
requires a balancing of the right to freedom of expression against the right
to protection from racial discrimination.
8.4 The State party notes the Committee's decision that the authors belong
to a 'category of potential victims'; to the extent that the authors are
'potential victims', the State party draws attention to recent changes in
Norwegian law which strengthen legal protection against the dissemination of
racist ideas. It argues that, following the adoption of recent changes to
s100 of the Constitution and s135a of the Penal Code, the authors can no
longer be considered 'potential victims' of racial discrimination contrary
to the Convention; any possible violation could only relate to the period
preceding the adoption of these amendments.
8.5 A completely revised version of section 100 of the Constitution entered
into force on 30 September 2004, affording the Parliament greater scope to
pass laws against racist speech, in conformity with its obligations under
international conventions. Parliament has since used this new power to amend
s135a of the Penal Code, to provide that racist remarks may be subject to
prosecution even if they are not disseminated among the public. Racist
statements made negligently are now also proscribed - intent need not be
proved. The maximum punishment has been raised from 2 to 3 years
imprisonment. The balance between s135a and freedom of speech, however, must
be weighed by the courts in each case. According to the State party, these
recent amendments contradict the authors' assertion that the verdict in the
Sjolie case would serve as a precedent, and that it will be more difficult
to prosecute dissemination of ideas of racist discrimination and hatred. The
State party further refers to the adoption of a new Discrimination Act,
which incorporates the Convention, and provides criminal sanctions for
serious cases of incitement to or participation in discrimination, thus
supplementing the new provisions of s135a. The government is also developing
a new Anti-Discrimination Ombudsman with a mandate to monitor and enforce
these new provisions.
8.6 The State party submits that, in light of the above changes in the State
party's laws, and their effect on the authors as 'potential victims', the
Committee should reconsider its decision on admissibility, pursuant to Rule
94, paragraph 6, of its Rules of Procedure, at least as far as the
communication raises questions regarding the general legal effects of the
Supreme Court's judgment. [FN17]
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[FN17] The submission then reads: 'The government however trusts the
Committee to undertake any required assessments at this point'.
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8.7 Finally, the State party notes that the authors have not identified how
the remarks of Mr. Sjolie have had adverse effects on their enjoyment of any
substantive rights protected by article 5 of the Convention.
Authors' Comments on State Party's Submissions on the Merits
9.1 In their comments on the State party's submissions dated 4 July 2005,
the authors invoke their earlier submissions, in which issues relating to
the merits were addressed. They emphasize that it remains undisputed that,
under Norwegian law as it presently stands, only three of the four relevant
categories of racial discrimination referred to in article 4 of the
Convention are penalized; contrary to article 4 and Recommendation 15,
dissemination of ideas based on racial superiority or hatred may go
unpunished.
9.2 In relation to the State party's request for the Committee to reopen the
question of admissibility of the complaint, the authors state that the
Committee must review and assess the communication on the basis of the facts
at the material time, and not on the basis of legislation adopted
subsequently. In any event, the new legislation has not addressed the
authors' main concern, namely the failure of the law to proscribe all
relevant categories of misconduct under the Convention; thus the authors
remain potential victims.
9.3 In respect of the 'due regard' clause in article 4, the authors maintain
that penalizing all four categories of misconduct is clearly compatible with
any international principle of freedom of speech. For them, the Committee
must undertake its own interpretation of the impugned statements, rather
than defer to the interpretation adopted by the Norwegian Supreme Court.
[FN18] In characterizing the speech, the authors note that Hess was well
known as Hitler's Deputy and confidant, instrumental in the development of
the Nuremberg laws. They maintain that, as the minority of the Supreme Court
found, anyone with a basic knowledge of Hitler and National Socialism would
have understood Mr. Sjolie's speech as an acceptance and approval of mass
violence against Jews in the Nazi era.
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[FN18] References are made to decisions of the ECHR: Lehideux and Isorni v
France, 23.09.1998, app 24662/94, para 50-53; and Jersild v Denmark,
23.09.1994, app 15890/89, para 35.
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9.4 The authors refer to jurisprudence of the ECHR and the Human Rights
Committee, both of which have accorded racist and hate speech little
protection under the freedom of speech provisions of their respective
conventions. [FN19] According to the authors, the role of the due regard
clause is to protect the role of the media in imparting information about
issues of public importance, provided the objective is not advocacy of
racial hatred. It is submitted that the State party offers a much broader
level of protection to hate speech than standards established in
international case law. The authors further state that the Supreme Court
decision in the Sjolie case is already having a significant effect as a
precedent, despite the entry into force of the new legislation. They provide
a decision by the Oslo police dated 31 May 2005 not to prosecute the leader
of a Neo Nazi organization, in relation to statements made to the effect
that Jews had killed millions of 'his people', that Jews should be
'cleansed', and were 'not human beings' but 'parasites'. The police dropped
the case with explicit reference to the Sjolie case.
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[FN19] Particular mention is made of Jersild v Denmark, concerning racist
comments by the 'Greenjackets' against Africans and foreigners, held not to
be protected by freedom of speech; and J.R.T and W.G. v Canada,
Communication No 104/1981, Views adopted 6 April 1983.
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9.5 The authors further submit that invoking freedom of speech for racist
and discriminating purposes amounts to an abuse of the right of submission.
They reiterate that the balance between freedom of speech and protection
from hate speech following the Sjolie decision is such that persons are
afforded protection only against the most distinctive and offensive remarks,
entailing severe violations of a group's dignity.
9.6 Finally, the authors note that Norway does not prohibit racist
organizations and that the Supreme Court in the Sjolie case built on the
view that such a ban would be unacceptable, contrary to the Committee's
General Recommendation 15, paragraph 6.
Consideration of the Merits
10.1 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 petitioners and
the State party.
10.2 In relation to the State party's request that the Committee should
reconsider its decision on admissibility pursuant to Rule 94, paragraph 6,
of its Rules of Procedure in the light of recent legislative changes, the
Committee considers that it must review and assess the communication on the
basis of the facts as they transpired at the material time, irrespective of
subsequent changes in the law. Further, the authors have referred to at
least one incident following the recent amendments to the relevant
legislation where the judgment in the Sjolie case was apparently interpreted
as a bar to the prosecution of hate speech.
10.3 The Committee has noted the State party's submission that it should
give due respect to the consideration of the Sjolie case by the Supreme
Court, which conducted a thorough and exhaustive analysis; and that States
should be afforded a margin of appreciation in balancing their obligations
under the Convention with the duty to protect the right to freedom of
speech. The Committee notes that it has indeed fully taken account of the
Supreme Court's decision and is mindful of the analysis contained therein.
However, the Committee considers that it has the responsibility to ensure
the coherence of the interpretation of the provisions of article 4 of the
Convention as reflected in its general recommendation No.15.
10.4 At issue in the present case is whether the statements made by Mr.
Sjolie, properly characterized, fall within any of the categories of
impugned speech set out in article 4, and if so, whether those statements
are protected by the 'due regard' provision as it relates to freedom of
speech. In relation to the characterization of the speech, the Committee
does not share the analysis of the majority of the members of the Supreme
Court. Whilst the contents of the speech are objectively absurd, the lack of
logic of particular remarks is not relevant to the assessment of whether or
not they violate article 4. In the course of the speech, Mr. Sjolie stated
that his 'people and country are being plundered and destroyed by Jews, who
suck our country empty of wealth and replace it with immoral and
un-Norwegian thoughts'. He then refers not only to Rudolf Hess, in whose
commemoration the speech was made, but also to Adolf Hitler and their
principles; he states that his group will 'follow in their footsteps and
fight for what (we) believe in'. The Committee considers these statements to
contain ideas based on racial superiority or hatred; the deference to Hitler
and his principles and 'footsteps' must in the Committee's view be taken as
incitement at least to racial discrimination, if not to violence.
10.5 As to whether these statements are protected by the 'due regard' clause
contained in article 4, the Committee notes that the principle of freedom of
speech has been afforded a lower level of protection in cases of racist and
hate speech dealt with by other international bodies, and that the
Committee's own General recommendation No 15 clearly states that the
prohibition of all ideas based upon racial superiority or hatred is
compatible with the right to freedom of opinion and expression. [FN20] The
Committee notes that the 'due regard' clause relates generally to all
principles embodied in the Universal Declaration of Human Rights, not only
freedom of speech. Thus, to give the right to freedom of speech a more
limited role in the context of article 4 does not deprive the due regard
clause of significant meaning, all the more so since all international
instruments that guarantee freedom of expression provide for the
possibility, under certain circumstances, of limiting the exercise of this
right.. The Committee concludes that the statements of Mr. Sjolie, given
that they were of exceptionally/manifestly offensive character, are not
protected by the due regard clause, and that accordingly his acquittal by
the Supreme Court of Norway gave rise to a violation of article 4, and
consequently article 6, of the Convention.
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[FN20] See paragraph 4.
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10.6 Finally, in relation to the State party's submission that the authors
have failed to establish how the remarks of Mr. Sjolie adversely affected
their enjoyment of any substantive rights protected under article 5 of the
Convention, the Committee considers that its competence to receive and
consider communications under article 14 is not limited to complaints
alleging a violation of one or more of the rights contained in article 5.
Rather, article 14 states that the Committee may receive complaints relating
to 'any of the rights set forth in this Convention'. The broad wording
suggests that the relevant rights are to be found in more than just one
provision of the Convention. Further, the fact that article 4 is couched in
terms of States parties' obligations, rather than inherent rights of
individuals, does not imply that they are matters to be left to the internal
jurisdiction of States parties, and as such immune from review under article
14. If such were the case, the protection regime established by the
Convention would be weakened significantly. The Committee's conclusion is
reinforced by the wording of article 6 of the Convention, by which States
parties pledge to assure to all individuals within their jurisdiction
effective protection and a right of recourse against any acts of racial
discrimination which violate their 'human rights' under the Convention. In
the Committee's opinion, this wording confirms that the Convention's
'rights' are not confined to article 5. Finally, the Committee recalls that
it has previously examined communications under article 14 in which no
violation of article 5 has been alleged. [FN21]
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[FN21] See for example: Ziad Ben Ahmed Habassi v. Denmark, communication No.
10/1997,Opinion adopted on 17 March 1999, paras. 9.3 and 10, where the
Committee found a violation of arts. 2 and 6; Kashif Ahmed v. Denmark,
communication No. 16/1999, Opinion adopted on 13 March 2000, paras. 6.2-9,
where the Committee found a violation of art. 6; and
Kamal Qureshi v. Denmark, communication No. 27/2002, Opinion adopted on 19
August 2003,
paras. 7.1-9.
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11. The Committee on the Elimination of Racial Discrimination, acting under
article 14, paragraph 7, of the Convention on the Elimination of All Forms
of Racial Discrimination, is of the view that the facts before it disclose
violations of articles 4 and 6 of the Convention.
12. The Committee recommends that the State party take measures to ensure
that statements such as those made by Mr. Sjolie in the course of his speech
are not protected by the right to freedom of speech under Norwegian law.
13. The Committee wishes to receive, within six months, information from the
State party about the measures taken in the light of the Committee's
Opinion. The State party is requested also to give wide publicity to the
Committee's Opinion.
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