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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 8 August 2007
Having concluded its consideration of communication No. 40/2007, submitted
to the Committee on the Elimination of Racial Discrimination on behalf of
Mr. Murat Er under article 14 of the International Convention on the
Elimination of All Forms of Racial Discrimination.
Having taken into account all information made available to it by the
petitioner of the communication, his counsel and the State party,
Adopts the following:
Opinion
1. The communication, dated 20 December 2006, is submitted by Mr. Murat Er,
a Danish citizen of Turkish origin born in 1973. He claims that Denmark has
violated article 2, paragraph 1(d); article 5, paragraph (e) (v); and
article 6 of the International Convention on the Elimination of All Forms of
Racial Discrimination (ICERD). He is represented by counsel, Ms. Line
B�gsted.
Factual Background
2.1 The petitioner was a carpenter student at Copenhagen Technical School at
the time of the events. As part of the study programme, students were
offered the possibility of doing traineeships in private companies. On 8
September 2003, the petitioner accidentally saw a note in a teacher�s hands,
where the words �not P� appeared next to the name of a potential employer
applying for trainees to work in his company. When asked about the meaning
of that note, the teacher explained to him that the P stood for �perkere�
(�Pakis�) and that it meant that the employer in question had instructed the
school not to send Pakistani or Turkish students for training in that
company. That same day, the petitioner complained orally to the school
inspector, arguing that the school collaborated with employers that did not
accept trainees of a certain ethnic origin. The inspector stated that is was
the school�s firm policy �not to accommodate wishes from employers only to
accept ethnic Danes as trainees� and that he was not aware of cases where
this had happened. On 10 September 2003, the petitioner filed a written
complaint with the school management board. He claims that, ever since his
complaint was filed, he has been treated badly by school staff and students
and was assigned to projects which he would normally not be expected to
carry out at the school.
2.2 From October to December 2003, the petitioner worked as a trainee in a
small carpenter business. Upon his return to the school, he was informed
that he had to start a new traineeship with another company four days later,
although he was enrolled in a course that started two weeks later. A
journeyman, with whom he worked at this new company, informed him that the
School had asked the company if it would accept to send �a Black�. Back at
the school, he started a new course. On the second day of the course, he
asked the teacher for help with some drawings, which he did not obtain. He
contends that the frustration experienced as a result of the discriminatory
treatment received at the school led to his dropping the course and becoming
depressive. He sought medical help and was referred to Bispebjerg Hospital,
where he was treated with antidepressants. He abandoned the idea of becoming
a carpenter and started working as a home carer.
2.3 The petitioner contacted an independent institution, the Documentation
and Advisory Centre on Racial Discrimination (DACoRD), and asked for
assistance. He complained that the school had agreed to the employer�s
request and stated that he had experienced reprisals from the school staff
since he had complained about this. DACoRD then filed a complaint on behalf
of the petitioner to the Complaints Committee on Ethnic Equal Treatment
(established under Act No. 374, of 28 May 2003, on Ethnic Equal Treatment),
arguing that the school�s practice consisting in agreeing to employers�
requests to send only trainees of Danish origin constituted direct
discrimination.
2.4 The Complaints Committee examined the case and exchanged correspondence
with the school and with DACoRD. In the correspondence, the school admitted
that unequal treatment based on ethnicity might have occurred in isolated
cases, but that this was not the general practice of the school. By decision
of 1 September 2004, the Complaints Committee considered that, in that
particular case, a staff member of the school had followed discriminatory
instructions and thus violated section 3 of the Danish Act on Ethnic Equal
Treatment. It specified, however, that section 3 was not violated by the
school as such. The Committee further considered that section 8 of the
referred Act (prohibition of reprisals for complaints aimed at enforcing the
principle of equal treatment) did not appear to have been violated, although
it noted that it did not have the competence to interrogate witnesses where
evidence was lacking. It concluded that this issue was for the Danish
tribunals to determine and recommended that free legal aid be granted for
the case to be brought before a court.
2.5 A civil claim was filed in the City Court of Copenhagen, seeking
compensation of DKK 100,000 (13,500� approximately) for moral damages
incurred as a result of ethnic discrimination. On 29 November 2005, the City
Court considered that the evidence produced did not prove that either the
school or its staff members were willing to meet discriminatory requests
from employers and that, therefore, there was no reason to set aside the
inspector�s statement. It further found that the petitioner was not among
the students to whom a traineeship was to be allocated on 8 September 2003
as he was undergoing an aptitude test between 1 September and 1 October
after having failed the first main course and could only subsequently be
considered for a traineeship, which he obtained as of 6 October 2003. It
concluded that the petitioner could not be considered to have been subjected
to differential treatment on the basis of his race or ethnic origin, nor
that he was a victim of reprisals by the defendant because of the complaint
filed by him. The petitioner contends that, under Act on Ethnic Equal
Treatment, the burden of proof should have been on the staff member and not
on him.
2.6 The petitioner appealed the judgement of the Copenhagen City Court to
the High Court of Eastern Denmark. He did not obtain legal aid to appeal the
case and DACoRD subsequently assisted him to appeal the case. One of the
witnesses called before the High Court was a school staff member in charge
of contacts between the school and potential employers. He stated that he
had chosen not to send a student of ethnic origin other than Danish to the
company, because �the school had received before negative feedbacks from
students of other ethnic origin who had been training with the company. They
had felt maltreated because employees at the company had used abusive
language.� The school argued that the complainant had not experienced
reprisals as a consequence of his complaint, but that he simply was not
qualified enough to be sent for training. In the petitioner�s view, this
argumentation is irrelevant, since the school had already admitted to have
refrained from sending students of an ethnic background other than Danish to
certain employers. The High Court decided that it had not been proved that
the complainant had been subjected to discrimination or had experienced
reprisals as a consequence of his complaint and confirmed the judgement of
the City Court. According to the complainant, the High Court based its
decision on the statement made by the school that the complainant did not
have the necessary qualifications to be sent to training. The school was
acquitted and the complainant was required to pay the procedural costs
amounting to DKK 25.000 (3,300� approximately). This amount was covered by
DACoRD.
2.7 Under Danish law, a case can only be tried twice before national courts.
If the case is of significant importance, there is the possibility to apply
for leave to appeal to the Supreme Court. After the judgement of the High
Court of Eastern Denmark, the complainant indeed applied for leave to
appeal. On 5 December 2006, his application was dismissed.
The Complaint
3.1 The petitioner claims that Denmark has violated article 2, paragraph 1
(d); article 5 (e) (v); and article 6 of the Convention.
3.2 He contends that, as a consequence of the school�s discriminatory
practice, he was not offered the same possibilities of education and
training as his fellow students and no remedies were allegedly available to
address this situation effectively, in violation of article 5 (e)(v) of the
Convention. Furthermore, he experienced a financial loss as a result of
national procedures.
3.3 The petitioner claims that Danish national legislation does not offer
effective protection to victims of discrimination based on ethnicity, as
required by article 2, subparagraph 1 (d) of the Convention, and does not
meet the requirements of article 6. According to the petitioner, this
resulted in his claims being dismissed. He further claims that the
legislation is not interpreted by Danish courts in accordance with the
Convention, since the concept of shared burden of proof and the right to
obtain an assessment of whether discrimination based on ethnicity has taken
place are not enforced.
State Party�s Observations on the Admissibility and Merits of the
Communication
4.1 On 17 April 2007, the State party submitted observations on the
admissibility and merits of the case. It claims that the communication is
inadmissible ratione personae because the petitioner is not a �victim� for
the purposes of article 14 of the Convention. It refers to the Human Rights
Committee�s case-law on article 1 of the Optional Protocol to the
International Covenant on Civil and Political Rights on �victim status�.
[FN1] Under this case-law, the victim must show that an act or an omission
of a State party has already adversely affected his or her enjoyment of a
right or that such an effect is imminent, for example, on the basis of
existing law and/or judicial or administrative practice. The State party
submits that its alleged failure to provide effective protection and
effective remedies against the reported act of racial discrimination does
not constitute and imminent violation of the petitioner�s rights under the
articles of the Convention invoked.
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[FN1] The State party invokes the Human Rights Committee�s Views in E.W. et
al v the Netherlands (Communication No. 429/1990), adopted on 8 April 1993,
para. 6.4; Bordes and Temeharo v France (Communication No. 645/1995),
adopted on 22 July 1996. para. 5.5; and Aalbersberg et al v the Netherlands
(Communication 1440/2005), adopted on 12 July 2006, para. 6.3.
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4.2 The State party claims that the complaint is based on the Copenhagen
Technical School�s alleged practice of complying with discriminatory
requests from certain employers who apparently refused to accept trainees
with an ethnic origin other than Danish for traineeships. However, the State
party contends that the petitioner was never in a position where he was
directly and individually subjected to and/or affected by this alleged
discriminatory practice and therefore has no legal interest in contesting
it. It notes that the reason why the applicant did not start his traineeship
in September 2003 was, as established by both the Copenhagen City Court and
the High Court of Eastern Denmark, solely his lack of professional
qualifications. He had failed the examination after his first year of
training and was thus ineligible for a traineeship in September 2003 but had
to undergo a one-month aptitude test at the School. It concludes that the
School�s treatment of the applicant with regard to the traineeship was
merely based on objective criteria. In the State party�s view, this
statement is confirmed by the fact that the petitioner started a traineeship
on 6 October 2003, after having completed the relevant aptitude test.
4.3 The State party maintains that, even if it were concluded that the
School and/or certain staff members acted in a racially discriminatory
manner in some cases when allocating traineeships to students, there was no
discrimination in the petitioner�s case and had thus no existing or imminent
effects on the applicant�s enjoyment of his rights under the Convention.
4.4 On the merits, the State party contends that both the protection offered
to the applicant and the remedies available to address his claim of racial
discrimination fully satisfy the Convention�s requirements under articles 2,
paragraph 1 (d); 5 (e) (v) and 6. It notes that the Convention does not
guarantee a specific outcome of the complaints of alleged discrimination but
rather sets out certain requirements for the national authorities�
processing of such cases. The judgements of both the City Court and the High
Court are based on the Danish Act on Ethnic Equal Treatment, which offers
comprehensive protection against racial discrimination under Danish law. It
notes that this Act entered into force on 1 July 2003 to implement EU
Council Directive 2000/43/EC, yet it is not the only instrument that
recognises the principle of equal treatment. The State party adapted its
legislation back in 1971 to meet its obligations pursuant to the Convention.
[FN2]
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[FN2] The State party refers the its initial and second report to CERD (CERD/C/R.50/Add.3
and CERD/C/R.77/Add.2)
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4.5 According to the State party, the petitioner�s submissions, particularly
his claims under article 2, paragraph 1 (d) and article 6 of the Convention,
are phrased in abstract and general terms. It recalls the Human Rights
Committee�s established practice that, when examining individual complaints
under the Optional Protocol, it is not its task to decide in abstract
whether or not the national law of a State party is compatible with the
Covenant, but only to consider whether there is or has been a violation of
the Covenant in the particular case submitted to it. [FN3] It further
recalls that the issue is to determine whether the applicant was offered
effective protection and remedies against an alleged and concrete act of
racial discrimination. It considers that the more general and abstract
issues raised by the petitioner should more rightly be dealt with by the
Committee, in connection with the examination of Denmark�s periodic report
under article 9 of the Convention.
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[FN3] The State party refers to the Human Rights Committee�s Views in
MacIsaac v Canada (Communication No. 55/1979), adopted on 14 October 1982,
para. 10.
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4.6 The State party recalls that article 2, paragraph 1 (d), is a policy
statement and that the obligation contained therein is, by its nature, a
general principle. In the State party�s view, this article does not impose
concrete obligations on the State party and, even less, specific
requirements on the wording of a possible national statute on racial
discrimination. On the contrary, State parties enjoy a significant margin of
appreciation in this regard. Concerning article 5 (e) (v), the State party
notes that, although being more concrete in obliging States parties to
guarantee equality before the law in relation to education and training, it
also leaves a significant margin of appreciation to them with regard to the
implementation of this obligation.
4.7 The State party notes that the Act on Ethnic Equal Treatment offers
individuals a level of protection against racial discrimination which, in
certain aspects, such as the rule of shared burden of proof of section 7 and
the explicit protection against victimisation of section 8, goes further
than the protection required by the Convention. It notes that this law was
effectively implemented by both national courts in examining the
petitioner�s case. It further notes that both the City Court and the High
Court thoroughly assessed the evidence submitted and heard the petitioner
and all key witnesses. Therefore, these Courts had an adequate and informed
basis for assessing whether the petitioner had been a victim of racial
discrimination. The State party adds that the petitioner�s complaint was
also examined by the Complaints Committee for Ethnic Equal treatment and,
even if it does not constitute an �effective remedy within the meaning of
article 6, by the Technical School at a Manager�s meeting, which resulted in
a warning to the training instructor and a written reply to the petitioner.
4.8 According to the State party, the fact that the applicant was not
granted legal aid in the High Court proceedings does not imply that these
proceedings cannot be considered an effective remedy.
4.9 With regard to the petitioner�s claim that the Danish courts do not
interpret Danish legislation in accordance with the Convention, the State
party notes that this is a general statement and does not refer to the
petitioner�s own case. [FN4] It further notes that, in any event, it is not
the Committee�s task to review the interpretation of Danish law made by
national courts. Nevertheless, the State party contends that both national
courts in the petitioner�s case delivered reasoned decisions and applied the
rule of shared burden of proof. It recalls that this rule, recognised in
section 7 of the Danish Act on Ethnic Equal Treatment, provides for a more
favourable burden of proof for alleged victims of discrimination than the
Convention. It provides that if a person presents facts from which it may be
presumed that there has been direct or indirect discrimination, it is
incumbent on the other party to prove that there has been no breach of the
principle of equal treatment. By contrast, under the Convention, it is up to
the applicant to provide prima facie evidence that he or she is a victim of
a violation of the Convention. [FN5] The State party concludes that the fact
that the petitioner�s complaint under the Act invoked was unsuccessful does
not imply that this instrument is ineffective.
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[FN4] The State party invokes the Committee�s Views in Michel Narrainen v
Norway (Communication No. 3/1991), adopted on 15 March 1994, paras. 9.4 and
9.5.
[FN5] The State party invokes the Committee�s Views in C.P. v Denmark
(Communication No. 5/1994), adopted on 15 March 1995, paras. 6.2 and 6.3;
and K.R.C. v Denmark (Communication No. 23/2002, adopted on 14 August 2002,
para. 6.2.
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Petitioner�s Comments
5.1 On 28 May 2007, the petitioner challenged the State party�s argument
that because he did not prove that he was more qualified than the 14
students who obtained a traineeship in September 2003 he c victim. He notes
that, when a traineeship was earmarked for �Danes�, the number of
traineeships left to students of non-Danish origin was reduced accordingly,
being discriminated de facto irrespective of whether they could in the end
obtain one of the remaining internships or not. He claims that this fact was
not taken into consideration by the High Court, which only decided on the
issue of whether the petitioner was qualified and thus eligible for the
traineeship in September 2003. He contends that, by not making any
assessment on whether or not race discrimination took place, the Danish
Court violated his right to an effective remedy guaranteed by articles 2 and
6, in relation to article 5 (e) (v), of the Convention.
5.2 The petitioner contends that the fact that the teacher at the Copenhagen
Technical School admitted before the High Court that he chose not to send a
student of non-Danish origin to the company shows that the principle of
equal treatment was violated.
Issues and Proceedings before the Committee
Decision on Admissibility
6.1 Before considering any claims contained in a petition, the Committee on
the Elimination of Racial Discrimination must, in accordance with rule 91 of
its rules of procedure, decide whether or not it is admissible under the
Convention.
6.2 The Committee notes the State party�s allegation that the communication
is inadmissible ratione personae because the petitioner does not qualify as
a victim under 14 of the Convention. It further notes the Human Rights
Committee�s Views invoked by the State party with regard to the �victim
status� and the State party�s contention that the petitioner was not
individually affected by the school�s alleged discriminatory practice of
complying with employers� requests to exclude non-ethnic Danish students
from being recruited as trainees because he did not qualify for a
traineeship in September 2003 and that he therefore has no legal interest in
contesting it.
6.3 The Committee does not see any reason not to adopt a similar approach to
the concept of �victim status� as in the Human Rights Committee�s Views
referred to above, as it has done in previous occasions. [FN6] In the case
under examination, it notes that the existence of an alleged discriminatory
school practice consisting in fulfilling employers� requests to exclude
non-ethnic Danish students from traineeships would be in itself sufficient
to justify that all non-ethnic Danish students at the school be considered
as potential victims of this practice, irrespective of whether they qualify
as trainees according to the school�s rules. The mere fact that such a
practice existed in the school would be, in the Committee�s view, enough to
consider that all non ethnic Danish students, who are bound to be eligible
for traineeships at some point during their study programme, be considered
as potential victims under article 14, paragraph 1, of the Convention.
Therefore, the Committee concludes that the petitioner has established that
he belongs to a category of potential victims for the purposes of submitting
his complaint before the Committee.
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[FN6] In this regard, see the Committee�s Opinion in The Jewish community of
Oslo and others v Norway (Communication No. 30/2003, adopted on 15 August
2005, para. 7.3 in fine.
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Consideration on the Merits
7.1 The Committee has considered the petitioner's case in the light of all
the submissions and documentary evidence produced by the parties, as
required under article 14, paragraph 7 (a), of the Convention and rule 95 of
its rules of procedure. It bases its findings on the following
considerations.
7.2 The petitioner claims that Danish national legislation does not offer
effective protection to victims of ethnic discrimination as required by
article 2, paragraph 1 (d), of the Convention, and that Danish courts do not
interpret national legislation in accordance with the Convention. The
Committee notes the State party�s allegation that the petitioner�s claims
are abstract and do not refer to his own case. It considers that it is not
the Committee�s task to decide in abstract whether or not national
legislation is compatible with the Convention but to consider whether there
has been a violation in the particular case. [FN7] It is also not the
Committee�s task to review the interpretation of national law made by
national courts unless the decisions were manifestly arbitrary or otherwise
amounted to a denial of justice. [FN8] In light of the text of the
judgements of both the City Court of Copenhagen and the High Court of
Eastern Denmark, the Committee notes that the petitioner�s claims were
examined in accordance with the law that specifically regulates and
penalises acts of racial or ethnic discrimination and that the decisions
were reasoned and based on that law. The Committee therefore considers that
this claim has not been sufficiently substantiated.
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[FN7] Vid. the Human Rights Committee�s Views in MacIsaac v Canada
(Communication No. 55/1979), adopted on 14 October 1982, para. 10
[FN8] Vid. the Human Rights Committee�s Views in Communications Nos.
811/1998, Mulai v Republic of Guyana, para. 5.3; 867/1999, Smartt v Republic
of Guyana, para. 5.7; 917/2000, Arutyunyan v Uzbekistan, para. 5.7, among
others.
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7.3 In respect of the author�s claim that, as a result of the school�s
practice, he was not offered the same possibilities of education and
training as his fellow students, the Committee observes that the
uncontroversial fact that one of the teachers at the school admitted having
accepted an employer�s application containing the note �not P� next to his
name and knowing that this meant that students of non-Danish ethnic origin
were not to be sent to that company for traineeship is in itself enough to
ascertain the existence of a de facto discrimination towards all non-ethnic
Danish students, including the petitioner. The school�s allegation that the
rejection of the petitioner�s application for traineeship in September 2003
was based on his academic records does not exclude that he would have been
denied the opportunity of training in that company in any case on the basis
of his ethnic origin. Indeed, irrespective of his academic records, his
chances in applying for an internship were more limited than other students
because of his ethnicity. This constitutes, in the Committee�s view, an act
of racial discrimination and a violation of the petitioner�s right to
enjoyment of his right to education and training under article 5, paragraph
e (v) of the Convention.
7.4 With regard to the petitioner�s allegation that the State party failed
to provide effective remedies within the meaning of article 6 of the
Convention, the Committee notes that both national Courts based their
decisions on the fact that he did not qualify for an internship for reasons
other than the alleged discriminatory practice against non-ethnic Danes
�namely, that he had failed a course-. It considers that this does not
absolve the State party from its obligation to investigate whether or not
the note �not P� written on the employer�s application and reported to be a
sign recognised by a school teacher as implying exclusion of certain
students from a traineeship on the basis of their ethnic origin, amounted to
racial discrimination. [FN9] 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 6 of the Convention have been violated.
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[FN9] In this regard, see the Committee�s Opinion in Mohammed Hassn Gelle v
Denmark, Communication No. 34/2004, adopted on 6 March 2006, para.7.5.
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8. In the circumstances, the Committee on the Elimination of Racial
Discrimination, acting under article 14, paragraph 7 (a), of the
International Convention on the Elimination of All Forms of Racial
Discrimination, is of the opinion that the facts as submitted disclose a
violation of articles 2, paragraph 1 (d); 5, paragraph (e) (v); and 6 of the
Convention by the State party.
9. The Committee on the Elimination of Racial Discrimination recommends that
the State party grant the petitioner adequate compensation for the moral
injury caused by the above-mentioned violations of the Convention. 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, within ninety days, information from
the Government of Denmark about the measures taken to give effect to the
Committee�s Opinion.
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