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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 22 February 2008
Having concluded its consideration of communication No. 38/2006, submitted
to the Committee on the Elimination of Racial Discrimination by the
Zentralrat Deutscher Sinti und Roma et al. 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
petitioners, their counsel and the State party,
Adopts the following:
Opinion
1.1 The petitioners are the association Zentralrat Deutscher Sinti und Roma,
acting on its own behalf and on behalf of G. W.; the association Verband
Deutscher Sinti und Roma - Landesverband Bayern; R. R.; and F. R. They claim
to be victims of a violation by Germany [FN1] of articles 4 (a) and (c); and
6 of the Convention on the Elimination of All Forms of Racial
Discrimination. They are represented by counsel.
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[FN1] The Convention was ratified by Germany on 16 May 1969, and the
declaration under article 14 was made on 30 August 2001.
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1.2 In conformity with article 14, paragraph 6 (a), of the Convention, the
Committee transmitted the communication to the State party on 14 September
2006.
Factual Background
2.1 Detective Superintendent G. W., a member of the Sinti and Roma minority,
wrote an article entitled "Sinti and Roma - Since 600 years in Germany",
which was published in the July/August 2005 issue of the journal of the
Association of German Detective Police Officers (BDK), "The Criminalist". In
the October 2005 issue of the journal, a letter to the editor written by P.
L., vice-chairman of the Bavarian section of the BDK and Detective
Superintendent of the Criminal Inspection of the city of Fürth, was
published as a reply to Weiss' article. The authors indicated that "The
Criminalist" was a journal distributed to more than 20,000 members of one of
the biggest police associations in Germany. The text of the letter by P. L.
reads as follows:
"With interest I read the article by colleague W., himself also a Sinti, but
I cannot leave this non-contradicted. Even at a time where minority
protection is put above everything else and the sins of the Nazi-era still
affect ensuing generations, one need not accept everything that is so
one-sided. As an officer handling offences against property I have dealt
repeatedly with the culture, the separate and partly conspirative way of
living as well as the criminality of the Sinti and Roma. We infiltrated the
life of criminal gypsies through working groups and also with the help of
under-cover agents ("Aussteiger"). We were told by Sinti that one feels like
a "maggot in bacon" ("Made im Speck") in the welfare system of the Federal
Republic of Germany. One should use the rationalisation for theft, fraud and
social parasitism without any bad conscience because of the persecution
during the Third Reich. The references to the atrocities against the Jews,
homosexuals, Christians and dissidents who did not become criminal, were
considered not relevant. As W. states there are no statistics about the
share of criminal Sinti and Roma in Germany. If they existed, he could not
have written such an article. But it is sure that this group of people, even
if only about 100,000, occupies the authorities disproportionately by
comparison.
Who for example commits nationwide thefts largely to the disadvantage of old
people? Who pretends to be a police officer to steal the scarce savings of
pensioners which were hidden for the funeral in the kitchen cupboard or in
the laundry locker? Who shows disabled and blind persons tablecloths and
opens the door to accomplices? What about the trick with the glass of water
and the paper trick?
Is it really a prejudice when citizens complain about the fact that Sinti
drive up with a Mercedes in front of the social welfare office? Is it not
true that hardly any Roma works regularly and pays social insurance? Why
does this group separate itself in such a way and for example inter-marries
without the registry office? Why are fathers of Sinti children not named to
the youth welfare office?
(...)
Whoever does not want to integrate but lives from the benefits of and
outside this society cannot claim a sense of community. My lines do not only
reflect my opinion as I learned by talking to many colleagues. They are not
only a record of prejudices, generalisations ("Pauschalisierungen") or
accusations but a daily reality of criminal activity.
It is totally incomprehensible for me that a police officer who knows about
this situation is so partial in his argumentation. His origins excuse him
partly and his career deserves praise, but he should stick to the truth."
2.2 The authors claimed that P. L.'s letter contained numerous
discriminatory statements against Sinti and Roma. They argue that P. L. used
racist and degrading stereotypes, going as far as stating that criminality
was a key characteristic of Sinti and Roma. In particular, they noted that
the terms "maggot" and "parasitism" were used in the Nazi propaganda against
Jews and Sinti and Roma. The authors claim that such a publication fuels
hatred against the Sinti and Roma community, increases the danger of hostile
attitude by police officers, and reinforces the minority's social exclusion.
2.3 In November 2005, after a public protest organized by the Zentralrat
Deutscher Sinti und Roma, the Bavarian Ministry of the Interior suspended P.
L. from his function in the police commissariat of Fürth, stating that
generally negative statements about identifiable groups of the population,
like the Sinti and Roma in the present case, were not acceptable.
2.4 On 24 November 2005, the Zentralrat Deutscher Sinti und Roma and R. R.
lodged a complaint with the District Attorney of Heidelberg, and on 1
December 2005, the Verband Deutscher Sinti und Roma - Landesverband Bayern
and F. R. filed a complaint before the District Attorney of Nürnberg-Fürth.
Both complaints were then transferred to the competent authority: the
District Attorney of Neuruppin in Brandenburg. The District Attorney of
Neuruppin dismissed the first complaint on 4 January 2006 and the second one
on 12 January 2006 with the same reasoning, namely that the elements
constitutive of the offence under article 130 of the German Criminal Code
were missing, refusing to charge P. L. with an offence under the German
Criminal Code (GCC).
2.5 On 12 January 2006, the authors lodged an appeal with the General
Procurator (Generalstaatsanwaltschaft) of the Land of Brandenburg against
the two decisions of the District Attorney of Neuruppin. This was dismissed
on 20 February 2006.
2.6 On 20 March 2006, the authors appealed to the Supreme Court of
Brandenburg. Their appeal was rejected on 15 May 2006. As regards the
individuals, the Court found the claim to be without merits. As regards the
Zentralrat Deutscher Sinti und Roma and Verband Deutscher Sinti und Roma -
Landesverband Bayern, the Supreme Court found the claim inadmissible on the
grounds that, as associations, their rights could only have been affected
indirectly.
2.7 The authors argue that, since the judicial authorities refused to
initiate criminal proceedings, German Sinti and Roma were left unprotected
against racial discrimination. By so doing, the State party would be
tolerating a repetition of such discriminatory practices. The authors
highlight a similar case involving discriminatory public statements against
Jews, in which the Supreme Court of the Land of Hessen had stated that, in
the past, the terms "parasite" and "social parasitism" had been used
maliciously and in a defamatory way against Jews, and held that such public
statements denied members of a minority the right to be considered as equals
in the community.
The Complaint
3. The authors claim that Germany violated their rights as individuals and
groups of individuals under articles 4 (a) and (c); and 6 of the Convention
on the Elimination of All Forms of Racial Discrimination, as the State party
does not afford the protection under its Criminal Code against publications
which contain insults directed against Sinti and Roma.
State Party's Observations on the Admissibility And Merits of the
Communication
4.1 On 26 January 2007, the State party commented on the admissibility and
merits of the communication. On admissibility, it submits that the
Zentralrat Deutscher Sinti und Roma and Verband Deutscher Sinti und Roma -
Landesverband Bayern have no standing to submit a communication under
article 14 (1) of the Convention. It submits that only individuals or groups
of individuals who assert that they are victims of a violation of a right
set forth in the Convention can submit communications to the Committee.
Neither of these two associations claims to be a victim of State action or
lack thereof, and that they cannot be accorded personal dignity. In
addition, the present communication distinguishes itself from a previous
decision adopted by the Committee [FN2], inasmuch as the complainants here
do not claim impairment of their work and do not claim to be victims as
organisations.
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[FN2] See Communication No. 30/2003, The Jewish Community of Oslo et al v.
Norway, opinion of 15 August 2005.
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4.2 The State party submits that all complainants have failed to
substantiate their claims under article 4 (a) and (c) of the Convention, and
that none of them has exhausted domestic remedies as required by article
14(2) of the Convention. It adds that the domestic remedies include an
appeal to the Federal Constitutional Court and that none of the complainants
made use of this option. It would not have been clear from the outset that a
constitutional complaint would fail for lack of prospect of success. The
State party submits that the Brandenburg Supreme Court, in its decision of
15 May 2006, only rejected the application by the two first complainants as
inadmissible because of lack of victim status. It submits that, at least in
respect of the complainants that are natural persons, the Federal
Constitutional Court could have examined the assessment made by the
Brandenburg Supreme Court with respect to the right of freedom of
expression, protected by article 5 of the German Basic Law. As regards W.,
the State party notes that he did not file a criminal action although this
option was open to him. For that reason alone, he did not exhaust domestic
remedies that were both available and potentially effective.
4.3 On the merits, the State party denies that there was a violation of
articles 4, paragraph (a) and (c) and 6 of the Convention. As regards
article 4(a), it maintains that all categories of misconduct under that
provision are subject to criminal sanctions under German criminal law,
particularly through the offence of incitement to racial or ethnic hatred ("Volksverhetzung")
in article 130 of the GCC [FN3] In addition, the GCC contains other
provisions that criminalise racist and xenophobic offences, e.g. in article.
86 (dissemination of propaganda by unconstitutional organisations) and
article 86(a) (use of symbols by unconstitutional organisations). The
obligations arising from article 4 paragraph (a) of the Convention have thus
been completely fulfilled by art. 130 of the GCC; there is no protection gap
in this respect. That some discriminatory acts are not covered by the
provision is not contrary to the Convention. The list in article 4 paragraph
(a) of the Convention does not enumerate all conceivable discriminatory
acts, but rather acts in which violence is used or where racist propaganda
is the goal.
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[FN3] Article 130. Incitement to racial or ethnic hatred. (1) Whoever, in a
manner that is capable of disturbing the public peace: 1. incites hatred
against segments of the population or calls for violent or arbitrary
measures against them; or 2. assaults the human dignity of others by
insulting, maliciously maligning, or defaming segments of the population,
shall be punished with imprisonment from three months to five years. (2)
Whoever: 1. with respect to writings (article 11, para. 3), which incite
hatred against segments of the population or a national, racial or religious
group, or one characterized by its folk customs, which call for violent or
arbitrary measures against them, or which assault the human dignity of
others by insulting, maliciously maligning or defaming segments of the
population or a previously indicated group: (a) disseminates them; (...)
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4.4 The State party adds that in accordance with General Recommendation No.
XV, para. 2, article 130 of the GCC is effectively enforced. Under German
criminal law, the principle of mandatory prosecution applies, by which
prosecutorial authorities must investigate a suspect ex officio and bring
public charges when necessary. In the present case, the State party submits
that prosecutorial authorities reacted immediately, and that the situation
was investigated thoroughly until the proceedings were terminated by the
District Attorney of Neuruppin.
4.5 Regarding the interpretation and application of article 130 of the GCC,
the State party notes that the District Attorney of Neuruppin, the
Brandenburg General Prosecutor and the Brandenburg Supreme Court did not
find that the elements constitutive of the offences under art. 130 or art.
185 GCC were met. These decisions show that not every discriminatory
statement fulfils the elements of the offence of incitement to racial or
ethnic hatred, but that there must be a certain targeting element for
incitement of racial hatred. The State party recalls that all the above
decisions referred to the wording of the letter as "inappropriate",
"tasteless" and "outrageous and impudent". The State party points out that
the central question is whether the courts correctly interpreted the
relevant provisions of the GCC. It recalls that States parties have some
discretion in the implementation of the obligations arising from the
Convention and particularly as regards the interpretation of their national
legal standards. With respect to the consequences suffered by P. L., it
indicates that disciplinary measures were indeed taken against him.
4.6 On article 4 (c) of the Convention, the State party denies that it
violated this provision. It points to the fact that "The Criminalist" is not
published by a public authority or institution, but by a professional
association. The author of the letter published it as a private person, and
not in his official capacity. The absence of public charges and of a
conviction by public prosecutorial authorities cannot be considered to be a
violation of this provision, as promotion or incitement requires
significantly more than merely refraining from further criminal prosecution.
4.7 Finally, with respect to article 6 of the Convention, the State party
maintains that in the present case the criminal prosecution authorities
acted quickly and fully discharged their obligation of effective protection
through the prompt initiation of an investigation against P. L. After an
in-depth examination the authorities concluded that the offence of
incitement to racial or ethnic hatred could not be established and closed
the proceedings.
Petitioner's Comments
5.1 On 7 March 2007 the authors commented on the State party's submission.
They note that the German authorities did not investigate the matter ex
officio, but that they were prompted to act by a complaint from one of the
complainants (Zentralrat Deutscher Sinti und Roma). They add that, to the
present day, the police union has not disassociated itself in any way from
the article of P. L.
5.2 The authors claim state that, although the organizations which
co-authored the complaint have not been attacked by name in P. L.'s article,
their own rights are harmed by such a sweeping criminalization of the entire
Sinti and Roma minority. They claim that the derogation of the social
reputation of the minority has consequences for the reputation and the
possibility of the organisations to exert political influence, especially
since they act publicly as advocates of the minority and are funded by the
State party to do so.
5.3 On exhaustion of domestic remedies, the authors claim that a complaint
to the Federal Constitutional Court would not only be declared inadmissible
but would have no prospect of success, based on that Court's established
jurisprudence. They state that they know of no case in which the Federal
Constitutional Court accepted a complaint against a decision concerning a
legal enforcement procedure.
5.4 As regards the provisions of the GCC, the authors doubt that articles
130 and 185, with their strict requirements, are sufficient to combat racist
propaganda effectively. They doubt that the intent of the responsible party
"to incite hatred against segments of the population" (as required by art.
130) is absent in the present case, given that P. L. is a police officer.
5.5 The authors reiterate that characterizations made in the article
represent an attack on the human dignity of members of the Sinti and Roma
communities, and that they cannot be considered to be a "permissible
statement of opinion", nor the "subjective feelings and impressions of a
police officer". Had those characterizations been made against Jews, massive
judicial intervention would have resulted. The authors add that the State
party approves of its police officers globally criminalizing an entire
population group. The approval of such public statements carries the danger
that other police officers adopt a similar attitude against Sinti and Roma.
Additional Comments by the Parties
6. By submissions dated 31 May 2007 and 16 November 2007, the State party
generally reiterated the points made in the initial submission. In
particular, it states that article 130 of the GCC has been successfully used
in the past to act against instances of extreme right-wing extremist
propaganda. By submission of 27 June 2007, the complainants replied to the
State party's comments, restating the arguments previously offered.
Issues and Proceedings Before the Committee
7.1 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.
7.2 The Committee notes that two legal entities are among the authors of the
complaint: the Zentralrat Deutscher Sinti und Roma and the Verband Deutscher
Sinti und Roma - Landesverband Bayern. The Committee takes note of the State
party's objection that, a legal person as opposed to an individual or a
group of individuals is not entitled to submit a communication or to claim
victim status under article 14, paragraph 1. It equally notes the authors'
argument that the organizations submit the complaint on behalf of their
members, as "groups of individuals" of the German Sinti and Roma community,
and that their own rights are harmed by the statements in the impugned
article. The Committee does not consider the fact that two of the authors
are organisations to be an obstacle to admissibility. Article 14 of the
Convention refers specifically to the Committee's competence to receive
complaints from "groups of individuals", and the Committee considers that,
bearing in mind the nature of the organisations' activities and the groups
of individuals they represent, they do satisfy the "victim" requirement
within the meaning of article 14(1). [FN4]
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[FN4] See Communication No. 30/2003, The Jewish community of Oslo et al v.
Norway, opinion of 15 August 2005, para. 7.4.
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7.3 On the issue of exhaustion of domestic remedies, the Committee notes
that the State party argues that the complainants failed to lodge an appeal
with the Federal Constitutional Court. The authors in turn maintain that
such an appeal would have no prospect of success and refer to the
established jurisprudence of the Court. They argue, and the State party
concedes, that individuals have no right under German law to face the State
to initiate criminal prosecution. The Committee has previously held that a
petitioner is only required to exhaust remedies that are effective in the
circumstances of the particular case. [FN5] It follows that, with the
exception of W., the petitioners have fulfilled the requirements of art.
14(7)(a).
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[FN5] See Communication No. 11/1998, Miroslav Lacko v. Slovak Republic,
opinion of 9 August 2001, para. 6.2; Communication No. 13/1998, Anna Koptova
v Slovak Republic, opinion of 8 August 2000, para. 6.4.
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7.4 As regards W., the Committee notes that he did not file criminal charges
nor was a party to the proceedings before the Brandenburg Supreme Court.
Thus, the complaint is inadmissible with respect to W. because of
non-exhaustion of domestic remedies. [FN6]
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[FN6] See Communication No. 22/2002, POEM and FASM v. Denmark, decision of
17 March 2003, para. 6.3.
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7.5 As regards article 4(c) of the Convention, the Committee accepts the
State party's contention that the BDK is a professional union and not a
State organ, and that P. L. wrote the impugned letter in his private
capacity. The Committee thus finds this claim inadmissible.
7.6 In light of the above, the Committee declares the case admissible
inasmuch as it relates to articles 4(a) and 6 of the Convention and proceeds
to examine the merits.
7.7 On the merits, the main issue before the Committee is whether the
provisions in the GCC provide effective protection against acts of racial
discrimination. The petitioners argue that the existing legal framework and
its application leave Sinti and Roma without effective protection. The
Committee had noted the State party's contention that the provisions of its
Criminal Code are sufficient to provide effective legal sanctions to combat
incitement to racial discrimination, in accordance with article 4 of the
Convention. 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] The material before the Committee does not reveal that
the decisions of the District Attorney and General Prosecutor, as well as
that of the Brandenburg Supreme Court, were manifestly arbitrary or amounted
to denial of justice. In addition, the Committee notes that the article in
"The Criminalist" has carried consequences for its author, as disciplinary
measures were taken against him. [FN8]
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[FN7] See Communication No. 40/2007, Er v. Denmark, decision of 8 August
2007, para. 7.2.
[FN8] See para. 2.3.
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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 do not
disclose a violation of articles 4(a) and 6 of the Convention.
9. Notwithstanding, the Committee recalls that P. L.'s article was perceived
as insulting and offensive not only by the petitioners, but also by the
prosecutorial and judicial authorities who dealt with the case. The
Committee wishes to call the State party's attention to (i) the
discriminatory, insulting and defamatory nature of the comments made by P.
L. in his reply published by "The Criminalist" and of the particular weight
of such comments if made by a police officer, whose duty is to serve and
protect individuals; and (ii) General Recommendation 27, adopted at its
fifty-seventh session, on discrimination against Roma.
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