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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
Adopts the following:
Opinion
1.1 The petitioner is A.W.R.A.P., a Danish citizen born on 1 February 1954
in Sweden, now residing in Denmark, and a practising Muslim. He alleges a
violation by Denmark [FN1] of articles 2, paragraph 1(d), 4 and 6 of the
Convention on the Elimination of All Forms of Racial Discrimination. He is
represented by counsel, Miss Line B�gsted of the Documentary and Advisory
Centre on Racial Discrimination (DACoRD).
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[FN1] The Convention was ratified by Denmark on 9 December 1971, and the
Declaration under article 14 made on 11 October 1985.
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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 20 July 2006.
Factual Background
2.1 In 1997, the Danish Parliament adopted a bill abolishing the right of
parents to corporally punish their children. The Danish Peoples Party voted
against the bill. In 2005, the Government introduced a bill amending the
Danish Integration Act by introducing the requirement for immigrants to sign
"declarations of integration", designed to ensure improved integration of
immigrants. All new immigrants would have to sign a declaration stating that
they will respect the fundamental values of Danish society, including
observance of the rules of the Danish Criminal Code, that they will promote
the integration of their children - not least by making sure that the
children attend school, that they will respect the individual's freedom and
personal integrity as well as the equality of the sexes, that they will
respect the freedom of religion and expression, and that they recognise the
prohibition of corporal punishment of their children.
2.2 The Danish Peoples Party supported the amendment bill which led to a new
debate concerning the band on corporal punishment of children because a
politician of the Socialist Peoples' Party asked members of the Danish
People's Party how it could support a bill demanding that all aliens sign a
declaration saying, inter alia, that "corporal punishment of my children is
prohibited" when the same party opposed the ban on corporal punishment of
children.
2.3 On 5 November 2005, Mr. S�ren Krarup, member of the National Parliament
for the Danish Peoples Party, in relation to this debate, stated as follows;
"The problem is that the country unfortunately has been flooded with Muslim
so-called culture, and according to Islam it is the right of the male to
beat his children and wife yellow and blue. That form of violence which they
are practising is of sadistic and brutal character. That is why we can not
reintroduce the act (on corporal punishment) and that it why it is important
to make them sign it."
2.4 On 13 November 2005, Mr. Krarup added the following to his previous
statement;
"What makes it so extremely difficult in relation to discussing the right to
corporal punishment today is that we have been flooded by a culture to which
violence - the holy right of the male to beat up his wife and children
yellow and blue - is a natural thing. And that means that the Danish
tradition for corporal punishment had become more or less compromised by a
Muslim tradition which is much different, but which means
that......................"
2.5 Apparently, after being questioned by the interviewer on the basis for
his remarks, Mr. Krarup stated that:
"Is it unknown to you that, according to Sharia and the Koran, a man has a
special position requiring his wife and children to abide by his doings? And
if they don't, they'll be punished?"
2.6 Having read these articles in the newspaper "Politiken", the petitioner
contacted the Documentation and Advisory Centre on Racial Discrimination (DACoRD)
and asked them to file a complaint to the police on his behalf against Mr.
Krarup, for violation of section 266 b of the Danish Penal Code which
prohibits racial statements [FN2]. On 15 October 2005, such a complaint was
sent to the Copenhagen police. On 27 March 2006, the Police rejected it
because there was no reasonable evidence to support the claim that an
unlawful act had occurred.
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[FN2] According to Section 266b "(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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2.7 On 7 April 2006, the petitioner filed a complaint with the Regional
Public Prosecutor for Copenhagen. On 24 May 2006, the Public Prosecutor
confirmed his agreement with the police decision not to prosecute Mr. Krarup.
He referred to the extended freedom of speech which exists for politicians
in general and Members of Parliament in particular especially when it comes
to politically controversial public matters, including corporal punishment
and how it is practised in other cultures. He did not find that the
"statements, when read in context, appear to be threatening, demeaning or
degrading in the sense of the Penal Code section 266 b."
2.8 The petitioner argues that questions relating to the pursuit by the
police of charges against individuals are discretionary, and that there is
no possibility to bring the case before the Danish courts. Any decision by
the Public Prosecutor relating to the investigation by the police
departments cannot be appealed. A legal action against Mr. Krarup would not
be effective, given that the police and Public Prosecutor have rejected the
complaints against him. The petitioner refers to a decision of the Eastern
High Court of 5 February 1999, where it was held that an incident of racial
discrimination does not in itself imply a violation of the honour and
reputation of a person under section 26 of the Act in Civil Liability [FN3].
The petitioner concludes that he has no further remedies under national law.
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[FN3] See Communication No. 17/1999, B.J. v Denmark, Opinion adopted on 17
March 2000, paras. 2.4 to 2.6.
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The Complaint
3.1 The petitioner claims that the decision of the Copenhagen police not to
initiate an investigation into the alleged facts violates articles 2,
paragraph 1(d); 4(a); and 6 of the Convention, as the documentation
presented should have motivated the police to investigate the matter
thoroughly. There were no effective means to protect him from racist
statements in this case.
3.2 The petitioner adds that the decisions of the Copenhagen police and the
Public Prosecutor to reject his complaints violate article 6 of the
Convention. He contends that the Danish authorities did not examine the
material in full, did not take his arguments into account and did not make
reference to their obligations under the ICERD.
State Party's Observations on the Admissibility and Merits of the
Communication:
4.1 On 20 July 2006, the State party made its submissions on the
admissibility and merits of the communication. On admissibility, it submits
that the claims fall outside the scope of the Convention and that the
petitioner has failed to establish a prima facie case, for purposes of
admissibility. The statements concern Mr. Krarup's perception of persons of
a specific religion and of a religious doctrine but do not concern persons
of a particular "race, colour, descent, or national or ethnic origin" within
the meaning of article 1 of the Convention. The State party notes that not
all Muslims are of a particular ethnic origin and that not all Muslims are
of the same race. Even the petitioner himself referred to the statements as
"offensive and degrading to persons of the Muslim faith". Thus, confirming
that the statements cannot be characterised as "racially discriminating" as
they concern a religious and not a racial issue. For this reason, the
statements fall outside the scope of article 1 of the Convention.
4.2 On the merits, the State party disputes that there was a violation of
articles 2, paragraph 1 (d), 4 and 6 of the Convention. On the claim that
the documentation presented to the police should have motivated it to
initiate a thorough investigation, the State party argues that the Danish
authorities' evaluation of the petitioner's reports of alleged racial
discrimination fully satisfies the requirements of the Convention, even
though they did not produce the outcome desired by the petitioner. The
Convention does not guarantee a specific outcome of cases on alleged
racially insulting statements, but sets out certain requirements for the
investigation of such statements. For the State party, these requirements
were satisfied in the current case, as the Danish authorities did take
effective action, by processing and investigating the complaints lodged by
the petitioner.
4.3 Under section 749(2) of the Administration and Justice Act [FN4] , the
police may discontinue an investigation already initiated when there is no
basis for its continuation. In criminal proceedings, the prosecutor has the
burden of proof that a criminal offence was committed. It is important for
the sake of due process that the evidence is of a certain weight for the
courts to convict an accused. Pursuant to section 96(2) of the
Administration of Justice Act [FN5], public prosecutors must observe the
principle of objectivity. They cannot prosecute a person unless they believe
that the prosecution will lead to conviction with a reasonable prospect of
certainty.
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[FN4] "Section 749.
(1) The police shall dismiss a report lodged if it deems that there is no
basis for initiating investigation. (2) If there is no basis for continuing
an investigation already initiated, the police may decide to discontinue the
investigation if no charge has been made (...).
(3) If the report is dismissed or the investigation is discontinued, those
who may be presumed to have a reasonable interest therein shall be notified.
The decision can be appealed to the superior public prosecutor under the
rules of Part 10.
[FN5] "Section 96.
(1) It is the duty of the public prosecutors, in cooperation with the
police, to prosecute offences according to the rules of this Act.
(2) The public prosecutors shall dispatch any one case at the speed
permitted by the nature of the case, and shall thus ensure not only that
guilty persons are held responsible, but also that prosecution of innocent
persons does not occur."
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4.4 The State party accepts that investigations must be carried out with due
diligence and expeditiously and must be sufficient to determine whether or
not an act of racial discrimination has taken place. It does not follow,
however, that a prosecution should be initiated in all cases reported to the
police. The State party emphasises that the question in the current case was
whether Mr. Krarup's statements could be considered to fall within the scope
of section 266b of the Criminal Code. The State party considers that this
legal assessment was thorough and adequate. There were no problems
concerning evidence, as the statements were printed in the newspaper as Mr.
Krarup's quotations. Thus, there was no need for the police to initiate an
investigation to clarify the specific contents of the statements, to
discover the originator of the statements, or to question the petitioner
about his view of the statements.
4.5 In the State party's view, the prosecution service correctly balanced
the right to freedom of expression, including politicians' freedom of
expression in connection with debates about essential social issues, with
the right for protection of religion (or the right for protection against
racial discrimination). The statements must be seen in the context in which
they were made, namely as contributions to a political debate about the
right of chastisement, and whether the reader supports Mr. Krarup's views or
not, a democratic society must allow for a debate on such viewpoints within
certain limits. The State party highlights its view that freedom of
expression is particularly important for elected representatives of the
people, who draw attention to their concerns and defend their interests.
Thus, interference with the freedom of expression of a Member of Parliament
calls for close scrutiny on the part of the prosecution service.
4.6 The State party acknowledges that a politicians right to freedom of
expression is not absolute and refers to the data contained in its 16th and
17th periodic report to the CERD, in which it informed the Committee that
between 1 January 2001 and 31 December 2003, the Danish courts considered 23
cases concerning violations of section 266b of the Criminal Code, and that
10 of these cases concerned statements made by politicians - only one of
whom was acquitted.
Petitioner's Comments
5.1 On 29 December 2006, the petitioner commented on the State party's
submissions. With respect to the argument that the communication falls
outside the scope of the Covenant, the petitioner contends that "Islamophobia",
just like attacks against Jews, has manifested itself as a form of racism in
many European countries, including Denmark. After 11 September 2001, attacks
against Muslims have intensified in Denmark. Members of the Danish People's
Party use hate speech as a tool to stir up hatred against people of Arab and
Muslim background. In their view, culture and religion are connected in
Islam. The petitioner recalls that CERD has already concluded that Danish
authorities do not ensure an effective implementation of criminal law in
relation to hate speech against Muslims and Muslim culture, especially by
politicians. He invokes the CERD's Concluding Observations on Denmark of
2002 [FN6]:
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[FN6] CERD/C/60/CO/5, 21 May 2002
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["16.] The Committee is concerned about reports of a considerable increase
in reported cases of widespread harassment of people of Arab and Muslim
backgrounds since 11 September 2001. The Committee recommends that the State
party monitor this situation carefully, take decisive action to protect the
rights of victims and deal with perpetrators, and report on this matter in
its next periodic report".
["11.] The Committee, while taking note of the State party's efforts to
combat hate crimes, is concerned about the increase in the number of
racially motivated offences and in the number of complaints of hate speech.
The Committee is also concerned about hate speech by some politicians in
Denmark. While taking note of the statistical data provided on complaints
and prosecutions launched under section 266(b) of the Criminal Code, the
Committee notes the refusal by the Public Prosecutor to initiate court
proceedings in some cases, including the case of the publication of some
cartoons associating Islam with terrorism (arts. 4(a) and 6)" (emphasis
added).
5.2 The petitioner concludes that he has made a prima facie case, given that
he belongs to a so-called "Muslim culture" and that, as a father, he is
personally affected by the stereotyping that he and other Muslims beat up
their wives and children.
Issues and Proceedings Before the Committee
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 objection that the petitioner's
claims fall outside the scope of the Convention, because the statements in
question are directed at persons of a particular religion or religious
group, and not at persons of a particular "race, colour, descent, or
national or ethnic origin". It also takes note of the petitioner's
contention that the statements in question were indeed aimed at persons of
Muslim or Arab background. The Committee observes, however, that the
impugned statements specifically refer to the Koran, to Islam and to Muslims
in general, without any reference whatsoever to any race, colour, descent,
or national or ethnic origin. While the elements of the case file do not
allow the Committee to analyse and ascertain the intention of the impugned
statements, it remains that no specific national or ethnic groups were
directly targeted as such by these oral statements as reported and printed.
In fact, the Committee notes that the Muslims currently living in the State
party are of heterogeneous origin. They originate from at least 15 different
countries, are of diverse national and ethnic origins, and consist of
non-citizens, and Danish citizens, including Danish converts.
6.3 The Committee recognises the importance of the interface between race
and religion and considers that it would be competent to consider a claim of
"double" discrimination on the basis of religion and another ground
specifically provided for in article 1 of the Convention, including national
or ethnic origin. However, this is not the case in the current petition,
which exclusively relates to discrimination on religious grounds. The
Committee recalls that the Convention does not cover discrimination based on
religion alone, and that Islam is not a religion practised solely by a
particular group, which could otherwise be identified by its "race, colour,
descent, or national or ethnic origin." The Travaux Pr�paratoires of the
Convention reveal that the Third Committee of the General Assembly rejected
the proposal to include racial discrimination and religious intolerance in a
single instrument, and decided in the ICERD to focus exclusively on racial
discrimination. [FN7] It is unquestionable therefore that discrimination
based exclusively on religious grounds was not intended to fall within the
purview of the Convention.
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[FN7] General Assembly resolution 1779 (XVII), General Assembly resolution
1780 (XVII), and General Assembly resolution 1781 (XVII).
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6.4 The Committee recalls its prior jurisprudence in Quereshi v. Denmark
that, "a general reference to foreigners does not at present single out a
group of persons, contrary to article 1 of the Convention, on the basis of a
specific race, ethnicity, colour, descent or national or ethnic origin"
[FN8]. Similarly, in this particular case, it considers that the general
references to Muslims, do not single out a particular group of persons,
contrary to article 1 of the Convention. It, therefore, concludes that the
petition falls outside the scope of the Convention and declares it
inadmissible ratione materiae under article 14, paragraph 1, of the
Convention.
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[FN8] See Petition No. 33/2003, Opinion adopted on 9 March 2005, para. 7.3
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6.5 Although the Committee considers that it is not within its competence to
examine the present petition, it takes note of the offensive nature of the
statements complained of and recalls that freedom of speech carries with it
both duties and responsibilities. It takes the opportunity to remind the
State party of its Concluding Observations, following consideration of the
State party's reports in 2002 and 2006, in which it had commented and made
recommendations upon: (a) the considerable increase in reported cases of
widespread harassment of people of Arab and Muslim backgrounds since 11
September 2001; (b) the increase in the number of racially motivated
offences; and (c) the increase in the number of complaints of hate speech,
including by politicians within the State party. [FN9] It also encourages
the State party to follow-up on its recommendations and to provide pertinent
information on the above concerns in the context of the Committee's
procedure for follow-up to its concluding observations.
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[FN9] CERD/C/60/CO/5, 21 May 2002, and CERD/C/DEN/CO/17, 19 October 2006.
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7. The Committee on the Elimination of Racial Discrimination therefore
decides:
(a) That the communication is inadmissible ratione materiae under article
14, paragraph 1, of the Convention.
(b) That this decision shall be communicated to the State party and to the
petitioner.
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