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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 6 March 2006
Adopts the following:
Opinion
1.1 The petitioner is Mr. Mohammed Hassan Gelle, a Danish citizen and
resident of Somali origin, born in 1957. He claims to be a victim of
violations by Denmark of articles 2, paragraph 1 (d), 4 and 6 of the
Convention. He is represented by counsel, Mr. Niels-Erik Hansen of the
Documentation and Advisory Centre on Racial Discrimination (DRC).
1.2 In conformity with article 14, paragraph 6 (a), of the Convention, the
Committee transmitted the communication to the State party on 3 June 2004.
Factual Background:
2.1 On 2 January 2003, the daily newspaper Kristeligt Dagblad published a
letter to the editor by Ms. Pia Kjærsgaard, a member of the Danish
Parliament (Folketinget) and leader of the Danish People's Party (Dansk
Folkeparti). The letter was given the title "A crime against humanity" and
stated:
"How many small girls will be mutilated before Lene Espersen, Minister of
Justice (Conservative People's Party), prohibits the crime? [...]
But Ms. Espersen has stated that she needs further information before she
can introduce the bill. Therefore, she is now circulating the bill for
consultation among 39 organisations that will be able to make objections.
Now, it is all according to the book that a Minister of Justice wants to
consult various bodies about a bill of far-reaching importance. The courts,
the Director of Public Prosecutions, the police etc. must be consulted.
But I must admit that I opened my eyes wide when, on Ms. Espersen's list of
39 organisations, I saw the following: the Danish-Somali Association [...],
the Council for Ethnic Minorities [...], the Danish Centre for Human Rights
[...], the National Organisation for Ethnic Minorities [...] and the
Documentation and Advisory Centre on Racial Discrimination [...].
I have to ask: What does a prohibition against mutilation and maltreatment
have to do with racial discrimination? And why should the Danish-Somali
Association have any influence on legislation concerning a crime mainly
committed by Somalis? And is it the intention that the Somalis are to assess
whether the prohibition against female mutilation violates their rights or
infringes their culture?
To me, this corresponds to asking the association of paedophiles whether
they have any objections to a prohibition against child sex or asking
rapists whether they have any objections to an increase in the sentence for
rape. For every day that passes until the period of consultation expires and
the bill can be adopted, more and more small girls will be mutilated for the
rest of their lives. In all decency, this crime should be stopped now.
[...]"
2.2 The petitioner considered that this comparison equated persons of Somali
origin with paedophiles and rapists, thereby directly offending him. On 28
January 2003, the DRC, on the petitioner's behalf, reported the incident to
the Copenhagen police, alleging a violation of section 266 (b) [FN1] of the
Criminal Code.
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[FN1] Section 266 (b) of the Danish Criminal Code reads: (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."
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2.3 By letter of 26 September 2003, the Copenhagen police notified the DRC
that, in accordance with section 749, paragraph 1, [FN2] of the
Administration of Justice Act, it had decided not to open an investigation
into the matter, since it could not reasonably be presumed that a criminal
offence subject to public prosecution had been committed. [FN3] The letter
stated:
"In my opinion, the letter to the editor cannot be taken to express that
Somalis are lumped together with paedophiles and rapists and that the author
thereby links Somalis with authors of serious crimes. Female mutilation is
an old Somali tradition that many today consider a crime due to the assault
[...] against the woman. I understand Ms. Kjærsgaard's statements to mean
that the criticism is aimed at the fact that the Minister wants to consult a
group that many people believe to be committing a crime by performing this
mutilation. Although the choice of paedophiles and rapists must be
considered offensive examples, I find that there is no violation within the
meaning of section 266 b."
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[FN2] Section 749 of the Administration of Justice Act reads, in pertinent
parts: "(1) The police shall dismiss a report lodged if it deems that there
is no basis for initiating an investigation. (2) [...] (3) If the report is
dismissed or the investigation is discontinued, those who may be presumed to
have a reasonable interest therein must be notified. The decision can be
appealed to the superior public prosecutor [...]."
[FN3] Cf. section 742, paragraph 2, of the Administration of Justice Act.
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2.4 On 6 October 2003, the DRC, on the petitioner's behalf, appealed the
decision to the Regional Public Prosecutor who, on 18 November 2004, upheld
the decision of the Copenhagen police:
"I have also based my decision on the fact that the statements do not refer
to all Somalis as criminals or other wise as equal to paedophiles or
rapists, but only argue against the fact that a Somali association is to be
consulted about a bill criminalizing offences committed particularly in the
country of origin of Somalis, [which is] why Ms. Kjærsgaard finds that
Somalis cannot be presumed to comment objectively on the bill, just as
paedophiles and rapists cannot be presumed to comment objectively on the
criminalization of paedophilia and rape. The statements in question can also
be taken to mean that Somalis are only compared with paedophiles and rapists
as concerns the reasonableness of allowing them to comment on laws that
affect them directly, and not as concerns their criminal conduct.
Moreover, I have based my decision on the fact that the statements in the
letter to the editor were made by a Member of Parliament in connection with
a current political debate and express the general political views of a
party represented in Parliament.
According to their context in the letter to the editor, the statements
concern the consultation of the Danish-Somali Association among others, in
connection with the bill prohibiting female mutilation.
Although the statements are general and very sharp and may offend or outrage
some people, I have considered it essential [...] that the statements were
made as part of a political debate, which, as a matter of principle, affords
quite wide limits for the use of unilateral statements in support of a
particular political view. According to the travaux préparatoires of section
266 (b) of the Criminal Code, it was particularly intended not to lay down
narrow limits on the topics that can become the subject of political debate,
or on the way the topics are dealt with in detail.
To give you a better understanding of section 266 b, I can inform you that
the Director of Public Prosecutions has previously refused prosecution for
violation of this provision in respect of statements of a similar kind.
[...]
My decision is final and cannot be appealed, cf. section 101 (2), second
sentence, of the Administration of Justice Act." [FN4]
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[FN4] Section 101, paragraph 2, of the Administration of Justice Act reads,
in pertinent parts: "The decisions of the Regional Public Prosecutors on
appeals cannot be appealed to the Director of Public Prosecutions or to the
Minister of Justice."
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The Complaint:
3.1 The petitioner claims that the Regional Public Prosecutor's argument
that Members of Parliament enjoy an "extended right to freedom of speech" in
the political debate was not reflected in the preparatory works of section
266 (b) of the Criminal Code, which gives effect to the State party's
obligations under the Convention. In 1995, a new paragraph 2 was amended to
section 266 (b), providing that "the fact that the offence is in the nature
of propaganda activities shall be considered an aggravating circumstance."
During the reading of the bill in Parliament, it was stated that, in such
aggravated circumstances, prosecutors should not exercise the same restraint
in prosecuting incidents of racial discrimination as in the past.
3.2 The petitioner submits that, during the examination of the State party's
thirteenth periodic report to the Committee, the Danish delegation stated
that "a systematic" or "a more extensive dissemination of statements may
speak in favour of applying section 266 (b) (2)."
3.3 The petitioner quotes further statements by Pia Kjærsgaard, including
one published in a weekly newsletter of 25 April 2000: "Thus a
fundamentalist Muslim does in fact not know how to act cultivated and in
accordance with Danish democratic traditions. He simply does not have a clue
about what it means. Commonly acknowledged principles such as speaking the
truth and behaving with dignity and culture – also towards those whom you do
not sympathize with – are unfamiliar ground to people like M.Z."
3.4 The petitioner claims a full investigation of the incident and
compensation as remedies for the alleged violation of articles 2, paragraph
1 (d), 4 and 6 of the Convention.
3.5 The petitioner claims that he has exhausted all available effective
remedies, given that, under section 749, paragraph 1, of the Danish
Administration of Justice Act, the police has full discretion whether or not
to open criminal proceedings, subject to appeal to the Regional Public
Prosecutor, whose decision is final and cannot be appealed to another
administrative authority (as explicitly stated in the Regional Public
Prosecutor's decision of 18 November 2004) or to a court. Direct legal
action against Ms. Kjærsgaard would have been futile in the light of the
rejection of his criminal complaint and of a judgment dated 5 February 1999
of the Eastern High Court of Denmark, which held that an incident of racial
discrimination does not in itself amount to a violation of the honour and
reputation of a person under section 26 [FN5] of the Torts Act.
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[FN5] Section 26, paragraph 1, of the Torts Act reads: "(1) A person who is
liable for unlawful violation of another person's freedom, peace, character
or person shall pay compensation to the injured party for non-pecuniary
damage."---------------------------------------------------------------------------------------------------------------------
State Party's Observations on Admissibility and Merits and Petitioner's
Comments:
4.1 On 6 September 2004, the State party made its submissions on the
admissibility and, subsidiarily, on the merits of the communication.
4.2 On admissibility, the State party submits that the petitioner failed to
establish a prima facie case for purposes of admissibility, [FN6] since the
statements in Ms. Kjærsgaard's letter to the editor of theKristeligt Dagblad,
rather than comparing Somalis with paedophiles or rapists, reflected her
criticism of the Minister's decision to consult an association in the
legislative process which, in her opinion, could not be considered objective
with regard to the proposed bill. It concludes that the statements were
racially non-discriminatory, thus falling outside the scope of application
of articles 2, paragraph 1 (d), 4 and 6 of the Convention.
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[FN6] The State party refers to Communication No. 5/1994, C.P. v. Denmark,
at paragraphs 6.2 and 6.3, as an example of a case which was declared
inadmissible by the Committee on that ground.
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4.3 The State party further submits that the communication is inadmissible
under article 14, paragraph 7 (a), of the Convention, as the petitioner has
not exhausted all available domestic remedies: Article 63 of the Danish
Constitution provides that decisions of administrative authorities may be
challenged before the courts. Therefore, the petitioner would have been
required to challenge the validity of the Regional Public Prosecutor's
decision not to initiate a criminal investigation at court. Given that the
petitioner considers himself directly offended by Ms. Kjærsgaard's
statements, he could also have initiated criminal proceedings under section
267, paragraph 1, [FN7] of the Criminal Code, which generally criminalizes
defamatory statements. Pursuant to section 275, paragraph 1, FN8 these
offences are subject to private prosecution, a remedy that was considered to
be effective by the Committee in Sadic v. Denmark.
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[FN7] Section 267, paragraph 1, of the Criminal Code reads: "Any person who
violates the personal honour of another [person] 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 to
imprisonment for any term not exceeding four months."
FN8 Section 275, paragraph 1, of the Criminal Code reads: "The offences
contained in this Part shall be subject to prosecution, except for the
offences referred to in sections [...] 266 b."
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4.4 Subsidiarily, on the merits, the State party disputes that there was a
violation of articles 2, paragraph 1 (d), and 6 of the Convention, because
the Danish authorities' evaluation of Ms. Kjærsgaard's statements fully
satisfied the requirement that an investigation must be carried out with due
diligence and expedition and must be sufficient to determine whether or not
an act of racial discrimination has taken place. [FN9] It did not follow
from the Convention that prosecution must be initiated in all cases reported
to the police. Rather, it was fully in accordance with the Convention to
dismiss a report, e. g. in the absence of a sufficient basis for assuming
that prosecution would lead to conviction. In the present case, the decisive
issue of whether Ms. Kjærsgaard's statements fell under section 266 (b) of
the Criminal Code did not give rise to any questions of evidence. The
Regional Public Prosecutor merely had to make a legal evaluation, which he
did both thoroughly and adequately.
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[FN9] The State party refers, inter alia, to Communication No. 10/1997,
Habassi v. Denmark, Opinion adopted on 17 March 1999, and to Communication
No. 16/1999, Ahmad v. Denmark, Opinion adopted on 13 March 2000.
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4.5 The State party reiterates that Ms. Kjærsgaard's statements were devoid
of any racist content. Thus, it is immaterial whether they were made by a
Member of Parliament in the context of a current political debate on female
genital mutilation. Therefore, no issue of an "extended" right to freedom of
speech of Members of Parliament, allegedly encompassing even racist remarks,
arises under article 4 of the Convention.
4.6 The State party adds that section 266 (b) satisfies the requirement in
the Convention to criminalize racial discrimination [FN10] and that Danish
law provides sufficient remedies against acts of racial discrimination.
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[FN10] The State party refers to its 14th (CERD/C/362/Add.1, at paras.
135-143) and 15th (CERD/C/408/Add.1, at paras. 30-45) periodic reports to
the Committee, describing the background and practical application of
section 266 (b).
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5.1 On 25 October 2004, the petitioner replied that the title of Ms.
Kjærsgaard's letter to the editor of the Kristeligt Dagblad ("A crime
against humanity") sweepingly and unjustly accuses persons of Somali origin
living in Denmark of practicing female genital mutilation. Given that the
offensive character of Ms. Kjærsgaard's statements was explicitly
acknowledged by the Danish authorities (see paras. 2.3 and 2.4), the State
party should withdraw its argument that the communication was prima facie
inadmissible.
5.2 The petitioner argues that the possibility, under article 63 of the
Danish Constitution, to challenge the decision of the Regional Public
Prosecutor judicially is not an effective remedy within the meaning of
article 6 of the Convention, because the deadline for initiating criminal
proceedings under section 266 (b) of the Criminal Code would have expired by
the time the courts refer the matter back to the police. The Committee must
have been unaware of this fact when deciding on the case of Quereshi v.
Denmark. [FN11] The Danish authorities' assumption that Members of
Parliament enjoy an "extended" right to freedom of speech in the context of
a political debate was not confirmed by the Danish courts and therefore
requires clarification by the Committee.
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[FN11] Communication No. 27/2002 (see above note 7)
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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 its is admissible under the
Convention.
6.2 With regard to the State party's objection that the petitioner failed to
establish a prima facie case for purposes of admissibility, the Committee
observes that Ms. Kjærsgaard's statements were not of such an inoffensive
character as to ab initio fall outside the scope of articles 2, paragraph 1
(d), 4 and 6 of the Convention. It follows that the petitioner has
sufficiently substantiated his claims, for purposes of admissibility.
6.3 On the issue of exhaustion of domestic remedies, the Committee recalls
that the petitioner brought a complaint under section 266 (b) of the
Criminal Code, which was rejected by the Copenhagen police and, on appeal,
by the Regional Public Prosecutor. It notes that the Regional Public
Prosecutor stated that his decision of 18 November 2004 was final and not
subject to appeal, either to the Director of Public Prosecutions or to the
Minister of Justice.
6.4 As to the State party's argument that the petitioner could have
challenged the decision of the Regional Public Prosecutor not to initiate a
criminal investigation under section 266(b) of the Criminal Code before the
courts, in accordance with article 63 of the Danish Constitution, the
Committee notes the petitioner's uncontested claim that the statutory
deadline for initiating criminal proceedings under section 266 (b) would
have expired by the time the courts refer the matter back to the police.
Against this background, the Committee considers that judicial review of the
Regional Public Prosecutor's decision under article 63 of the Constitution
would not have provided the petitioner with an effective remedy.
6.5 On the State party's argument that the petitioner should have initiated
private prosecution under the general provision on defamatory statements
(section 267 of the Criminal Code), the Committee recalls that, in its
Opinion in Sadic v. Denmark, [FN12] it had 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. 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, however, 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) in respect
of circumstances directly implicating the language and object of that
provision. [FN13]
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[FN12] See Communication No. 25/2002, Ahmad Najaati Sadic v. Denmark,
Decision on admissibility adopted on 19 March 2003, at paragraphs 6.2-6.4.
[FN13] See Communication No. 33/2003, Kamal Quereshi v. Denmark (II),
Opinion adopted on 9 March 2005, at paragraph 6.3.
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6.6 As to the possibility of instituting civil proceedings under section 26
of the Torts Act, the Committee notes the petitioner's argument that the
Eastern High Court of Denmark, in a previous judgment, held that an incident
of racial discrimination does not in itself constitute a violation of the
honour and reputation of a person. Although mere doubts about the
effectiveness of available civil remedies do not absolve a petitioner from
pursuing them, [FN14] the Committee observes that by instituting a civil
action the petitioner would not have achieved the objective pursued with his
complaint under section 266 (b) of the Criminal Code to the police and
subsequently to the Regional Public Prosecutor, i.e. Ms. Kjærsgaard's
conviction by a criminal tribunal. [FN15] It follows that the institution of
civil proceedings under section 26 of the Torts Act cannot be considered an
effective remedy that needs to be exhausted for purposes of article 14,
paragraph 7 (a), of the Convention, insofar as the petitioner seeks a full
criminal investigation of Ms. Kjærsgaard's statements.
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[FN14] See Communication No. 19/2000, Sarwar Seliman Mostafa v. Denmark,
Decision on admissibility adopted on 10 August 2001, at paragraph 7.4.
[FN15] See Communication No. 32/2003, Emir Sefic v. Denmark, Opinion adopted
on 7 March 2005, at paragraph 6.2.
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6.7 In the absence of any further objections to the admissibility of the
petitioner's claims, the Committee declares the petition admissible, insofar
as it relates to the State party's alleged failure fully to investigate the
incident.
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 issue before the Committee is whether the State party fulfilled its
positive obligation to take effective action against reported incidents of
racial discrimination, having regard to the extent to which it investigated
the petitioner's complaint under section 266 (b) of the Criminal Code. This
provision criminalizes public statements 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.
7.3 The Committee observes that it does not suffice, for purposes of article
4 of the Convention, merely to declare acts of racial discrimination
punishable on paper. Rather, criminal laws and other legal provisions
prohibiting racial discrimination must also be effectively implemented by
the competent national tribunals and other State institutions. This
obligation is implicit in article 4 of the Convention, under which State
parties "undertake to adopt immediate and positive measures" to eradicate
all incitement to, or acts of, racial discrimination. It is also reflected
in other provisions of the Convention, such as article 2, paragraph 1(d),
which requires States to "prohibit and bring to an end, by all appropriate
means," racial discrimination, and article 6, guaranteeing to everyone
"effective protection and remedies" against acts of racial discrimination.
7.4 The Committee notes that the Regional Public Prosecutor dismissed the
petitioner's complaint on the ground that Ms. Kjærsgaard's letter to the
editor did not refer to all Somalis as criminals or otherwise as equal to
paedophiles or rapists, but only argued against the fact that a Somali
association is to be consulted about a bill criminalizing offences committed
particularly in the country of origin of Somalis. While this is a possible
interpretation of Ms. Kjærsgaard's statements, they could however also be
understood as degrading or insulting to an entire group of people, i.e.
persons of Somali descent, on account of their national or ethnic origin and
not because of their views, opinions or actions regarding the offending
practice of female genital mutilation. While strongly condemning the
practice of female genital mutilation, the Committee recalls that Ms.
Kjærsgaard's choice of "paedophiles" and "rapists" as examples for her
comparison were perceived as offensive not only by the petitioner, but also
were acknowledged to be offensive in character in the letter of 26 September
2003 from the Copenhagen police. The Committee notes that although these
offensive references to "paedophiles" and "rapists" deepen the hurt
experienced by the petitioner, it remains the fact that Ms. Kjærsgaard's
remarks can be understood to generalize negatively about an entire group of
people based solely on their ethnic or national origin and without regard to
their particular views, opinions or actions regarding the subject of female
genital mutilation. It further recalls that the Regional Public Prosecutor
and the police from the outset excluded the applicability of section 266 (b)
to Ms. Kjærsgaard's case, without basing this assumption on any measures of
investigation.
7.5 Similarly, the Committee considers that the fact that Ms. Kjærsgaard's
statements were made in the context of a political debate does not absolve
the State party from its obligation to investigate whether or not her
statements amounted to racial discrimination. It reiterates that the
exercise of the right to freedom of expression carries special duties and
responsibilities, in particular the obligation not to disseminate racist
ideas, [FN16] and recalls that General Recommendation 30 recommends that
States parties take "resolute action to counter any tendency to target,
stigmatize, stereotype or profile, on the basis of race, colour, descent,
and national or ethnic origin, members of 'non-citizen' population groups,
especially by politicians [...]."[FN17]
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[FN16] CERD, General Recommendation XV: Organized violence based on ethnic
origin (art. 4), at paragraph 4.
[FN17] CERD, General Recommendation 30: Discrimination against non-citizens,
at paragraph 12.
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7.6 In the light of the State party's failure to carry out an effective
investigation to determine whether or not an act of racial discrimination
had taken place, the Committee concludes that articles 2, paragraph 1(d),
and 4 of the Convention have been violated. The lack of an effective
investigation into the petitioner's complaint under section 266 (b) of the
Criminal Code also violated his right, under article 6 of the Convention, to
effective protection and remedies against the reported act of racial
discrimination.
8. 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 article 2, paragraph 1 (d), article 4 and article 6 of the
Convention.
9. The Committee on the Elimination of Racial Discrimination recommends that
the State party should grant the petitioner adequate compensation for the
moral injury caused by the above-mentioned violations of the Convention.
Taking into account the Act of 16 March 2004, which, inter alia, introduced
a new provision in section 81 of the Criminal Code whereby racial motivation
constitutes an aggravating circumstance, the Committee also recommends that
the State party should ensure that the existing legislation is effectively
applied so that similar violations do not occur in the future. The State
party is also requested to give wide publicity to the Committee's opinion,
including among prosecutors and judicial bodies.
10. The Committee wishes to receive from Denmark, within six months,
information about the measures taken to give effect to the Committee's
opinion.
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