Submitted by: Kashif Ahmad (represented by legal counsel)
victim: The author
communication: 28 May 1999 (initial submission)
on the Elimination of Racial Discrimination, established under article
8 of the International Convention on the Elimination of All Forms of
on 13 March 2000,
its consideration of communication No. 16/1999, submitted to the
Committee under article 14 of the International Convention on the Elimination
of All Forms of Racial Discrimination,
into consideration all written information made available to it
by the author and the State party,
in mind rule 95 of its rules of procedure requiring it to formulate
its opinion on the communication before it,
1.1 The author of the communication is Kashif Ahmad, a Danish citizen
of Pakistani origin born in 1980 who claims to be a victim of violations
by Denmark of article 2, subparagraph 1 (d), and article 6 of the Convention.
He is represented by counsel.
1.2 In conformity
with article 14, paragraph 6 (a), of the Convention, the Committee transmitted
the communication to the State party on 27 August 1999.
The facts as submitted by the author
2.1 On 16 June
1998 family members and friends had come to meet pupils after the exams
at the Avedore Gymnasium, Hvidovre, as is the usual practice in Danish
high schools. The author and his brother were waiting with a video camera
outside an examination room, where a friend of theirs was taking an
exam. While they were waiting, a teacher, Mr. K.P., asked them to leave.
Since they refused the teacher informed the headmaster, Mr. O.T., who
immediately called the police. Mr. O.T. publicly referred to the author
and his brother as "a bunch of monkeys". When the author told
Mr. O.T. that he was going to complain about the manner in which he
had been treated, Mr. K.P. expressed doubts about the effectiveness
of such a complaint and said that the author and his brother were "a
bunch of monkeys" who could not express themselves correctly. When
the police arrived the author and his friends discussed the matter with
them. The police promised to have a discussion with Mr. O.T.
2.2 The same
day the author received a letter in which Mr. O.T. informed him that
he did not want him to be present at the official celebration to be
held at the school on 19 June 1998 in the course of which he was going
to receive his diploma. On 17 June 1998 the author's father went to
Avedore Gymnasium in order to discuss the matter with Mr. O.T. Mr. O.T.
first refused to receive him and when he finally accepted, told him
that the matter had been settled and asked him to leave. Subsequently,
the author learned from one of the employees at the school that Mr.
O.T. had given instructions to the door guards not to let him in.
2.3 By letter
dated 25 June 1998, counsel informed Mr. O.T. that the matter was a
serious one and that the expressions he had used against the author
amounted to a violation of section 266b of the Danish Penal Code. Counsel
also requested an explanation and an apology for his client. Mr. O.T.
replied that the author and his brother had been noisy outside the examination
rooms but he did not deny having used the racist expressions referred
filed a complaint with the police of Hvidovre on 7 July 1998. By letter
dated 23 September 1998 the police informed him that they had interviewed
Mr. O.T. and Mr. K.P. and concluded that the expressions used were outside
the scope of section 266b of the Penal Code and that the case would
be discontinued in accordance with section 749, subparagraph 2, of the
Danish Administration of Justice Act. The letter also said that the
expressions used had to be seen in connection with a tense incident.
In the opinion of the police, they should not be understood as insulting
or degrading in terms of race, colour, national or ethnic origin, since
they could also be used towards persons of Danish origin who behaved
as the author had.
2.5 By letter
dated 1 October 1998 counsel requested the police to have the case brought
before the State Attorney. On 30 November 1998 the State Attorney upheld
the decision of the police.
claims that, in accordance with section 101 of the Administration of
Justice Act, a decision by the State Attorney relating to an investigation
by the police departments cannot be appealed to other authorities. As
questions relating to the pursuance by the police of charges against
individuals are entirely up to the discretion of the police, there is
no possibility of bringing the case before a court. Furthermore, legal
action by the author against Mr. O.T. and Mr. K.P. would not be effective,
taking into account that the police of Hvidovre and the State Attorney
had rejected the author's complaints.
further contends that the High Court of the Eastern Circuit, in a decision
of 5 February 1999, held the view that an incident of racial discrimination
did not in itself imply a violation of the honour and reputation of
a person under section 26 of the Danish Act on Tort. According to counsel
the position of the High Court, as a result of that decision, is that
racial discrimination carried out politely would not in itself constitute
a basis for a claim for compensation.
3.1 It is submitted
that the case was not examined properly by the national authorities
and that the author never obtained an apology or sufficient satisfaction
or reparation. As a result the State party has violated its obligations
under article 2, subparagraph 1 (d) and article 6 of the Convention.
claims that neither the police department of Hvidovre nor the State
Attorney examined, in particular, the following issues: (a) had Mr.
O.T. and Mr. K.P. said that the author and his brother were "a
bunch of monkeys" and that they could not express themselves correctly;
(b) had that been used with reference to the Pakistani origin of the
author and his brother; (c) had that expression amounted to a discriminatory
opinion about the author and his brother. According to counsel, the
police limited themselves to interviewing Mr. O.T. and Mr. K.P; they
did not even consider interviewing the author and his brother, or the
six witnesses whose names and addresses were known to them.
party's submission on admissibility and merits
4.1 In a submission
dated 29 November 1999 the State party contends that the author has
failed to establish a prima facie case for the purpose of admissibility
and, accordingly, the communication should be declared inadmissible.
The State party does not dispute that the other conditions for admissibility
set out in article 14 of the Convention and rule 91 of the Committee's
rules of procedure are satisfied. Should the Committee not declare the
communication inadmissible on the above ground, the State party submits
that there has been no violation of the Convention and that the communication
is manifestly ill-founded.
4.2 The State
party quotes excerpts from the complaint lodged by counsel with the
Chief Constable of Hvidovre on 7 July 1998, the letter addressed by
counsel to Avedore High School on 22 June 1998 requesting an explanation
of the incident and an apology, and the response from the headmaster.
It states that as a result of counsel's complaint the police interviewed
Mr. K.P. on 9 September 1998.
4.3 Mr. K.P.
explained to the police that the author had previously been a student
of his and that there had been disagreements between them, including
about the author's grades. On the examination day in question he had
been corridor attendant responsible, inter alia, for peace and
order. At one point he noticed two individuals in the basement at the
door to the sports field and that a cup was jammed into the door to
keep it open. He asked the two persons, one of whom was the author's
brother, what they were doing there. They answered that they were waiting
for the author, who was returning books. Mr. K.P. said that it was a
strange place to be standing and that there had previously been three
cases of theft at the school where that particular door had been used.
The two young people started getting excited and shouted at Mr. K.P.
The author, who was standing at the book return desk, turned round and
insulted Mr. K.P.
4.4 Later, Mr. K.P. noticed four to six persons of foreign origin, including
the author and his brother, waiting outside an examination room. There
was much noise in the corridor and several times the teachers had come
out of the examination rooms and requested quiet. Mr. K.P. then decided
to empty the corridors. Everybody left except the group containing the
author and his brother. The brother shouted that they were not going
to leave. Mr. K.P. asked them four times, quietly and peacefully, to
leave the corridor but they still refused to do so. Both the author
and his brother had threatening, piercing eyes, pointed with their fingers
at Mr. K.P. and shouted and screamed. Mr. K.P. pressed the intercommunication
system on the wall and shortly afterwards the headmaster arrived. The
headmaster tried for about five minutes to talk to the group but they
still refused to leave. The group, mainly led by the brother and, to
some extent, the author, hurled insults and became more and more threatening,
even in the presence of other teachers. As a result, the police were
summoned. Mr. K.P. could not remember whether the group left by themselves
after realizing that the police had been called or whether the police
removed them. In any case, he noted subsequently that police were standing
outside the school talking with the group. Mr. K.P. was asked whether
the headmaster had said anything about "monkeys" to the group.
He replied that he had heard nothing of the sort. He was asked whether
he had said anything similar. He answered that he did not think so but
was not able to reply definitively. If he had said something about "monkeys",
it had nothing to do with race, religion, ethnic origin, etc. of the
group, but had merely been used as an ordinary slang word for a "bunch"
that behaved abnormally. He and Mr. O.T. had not wanted to lodge a complaint
with the police about the threats received, as they were used to cultural
differences and different conduct.
4.5 On 18 September
1998 the police interviewed Mr. O.T., the headmaster. He explained,
inter alia, that Mr. K.P. had come to him and said that he was
unable to control events on the second floor as a group of foreigners
would not comply with his instructions. Upon arriving on the scene he
noticed that a group of foreigners consisting of 8 to 10 persons, including
the author and some of his classmates, were making a lot of noise. When
he asked them to leave the author's brother started to shout, insulted
him and made threatening gestures. While all this was happening the
author was standing with a video camera. Mr. O.T. believes that he was
recording. A group of parents who had been sitting at the end of the
corridor had been very shocked. During the entire episode several adults
had come to the corridor and watched the whole scene with astonishment.
When asked why he did not file a complaint, Mr. O.T. explained that
they were used to many different nationalities at the school and consequently
they probably had a higher tolerance threshold. As for the use of the
expression "bunch of monkeys", he said that he could not deny
having said something like that. If so, the word "monkey"
was merely used in the light of the conduct of the group and had no
relation to the religious affiliation, colour, ethnic origin, etc. of
the group. He could equally have used the word about a group of ethnic
Danes behaving similarly. He could not remember Mr. K.P. referring to
the group as "a bunch of monkeys who could not express themselves
4.6 By letter
dated 23 September 1998 the Chief Constable of Hvidovre informed counsel,
inter alia, of the following:
"Pursuant to section 742(2) of the Administration of Justice
Act (retsplejeloven), the police initiates an investigation
on the basis of an information when it can reasonably be assumed that
a criminal offence subject to public prosecution has been committed.
had some investigation made in the case, inter alia, by interviewing
Mr. O.T. and Mr. K.P.
I am of the opinion that the statements and the circumstances under
which they may have been made fall outside the provisions of section
266b of the Criminal Code.
therefore decided, pursuant to section 749(2) of the Administration
of Justice Act, to discontinue the investigation and shelve the case.
my assessment I have attached importance to the following:
O.T. does not entirely deny that he may have said something like the
the statements must be seen in connection with a tense episode in
the corridors of the High School, during which both Mr. K.P., the
teacher, and especially Mr. O.T., the headmaster, have borne various
expressions of disapproval and even had to summon the police to get
peace at the examinations rooms.
in my opinion, the alleged statements cannot especially be perceived
as insulting or degrading in relation to race, colour, national extraction
or ethnic origin, as such statements could be made with the same meaning
about others - also of Danish ethnic origin, that exhibit a similar
conduct. The statements refer to the nature of the conduct and not
to the person.
claim for damages is referred to a civil action."
4.7 By letter of 1 October 1998 counsel appealed the decision to the
District Public Prosecutor for Zealand through the Chief Constable of
Hvidovre. He stressed, inter alia, that neither the author
nor his classmates had been interviewed by the police and that a video
recording existed that showed the situation about 30 minutes before
the episode occurred, when a very large number of classmates and relatives
of a student being examined were in the corridor. The video also showed
the situation shortly before the statements in question were made, when
only a quite small number of persons were present in the corridor together
with Mr. K.P.
4.8 On 6 October
1998 the Chief Constable forwarded the case to the District Public Prosecutor
and explained that in view of the context in which the statements in
question had been made he had not found it necessary to interview the
author. Although he had not seen the video he did not consider it relevant,
as it did not concern the episode itself. On 30 November 1998 the District
Public Prosecutor informed counsel that he concurred entirely in the
assessment made by the Chief Constable and found no basis for reversing
4.9 The State
party submits that the central point in the present communication is
the statements allegedly made by Mr. K.P. and Mr. O.T. Those statements,
if made, are not an expression of a difference of treatment that constitutes
discrimination in violation of article 2 (1) and article 5 (e) (v) of
the Convention. It is more relevant to assess the statements in question
in relation to article 4 (a) of the Convention, which requires States
parties to penalize certain categories of misconduct. To enable Denmark
to ratify the Convention, section 266b and other sections of the Danish
Criminal Code were amended. Pursuant to section 266b, any person who,
publicly or with the intent of dissemination to a wider circle, makes
statements or any other communication by which a group of persons is
threatened, insulted or exposed to indignities on the grounds of race,
colour, national extraction or ethnic origin, shall be liable to punishment.
4.10 It is
a condition that the statement in question be directed at a group on
the basis of its race, etc. Statements aimed at a single person must,
if they cannot be seen as an expression of insult or persecution of
the group to which the person belongs, be assessed pursuant to the general
rules of the Criminal Code on invasion of privacy and defamation of
character. When assessing whether some statements must be deemed to
be in violation of section 266b it is necessary to make a concrete assessment
of the substance of the statements, including the context in which they
were made. This was done by the Chief Constable and the District Public
Prosecutors in deciding to discontinue the investigation. The Government
concurs entirely in those assessments and considers that the author
has not substantiated or rendered probable that he was the victim of
racist statements in violation of the Convention, as they were not aimed
at a group because of its race or ethnic origin. Thus, the author has
failed to establish a prima facie case for the purpose of admissibility
of his communication.
4.11 The State
party is aware that the Convention makes certain requirements of the
treatment accorded by the authorities to information from private individuals
concerning alleged racial discrimination contrary to the Convention
(1). However, the investigation performed by the police fully satisfied
the requirements that can be inferred from the Convention as interpreted
in the Committee's practice. The police had details on the substance
of the alleged statements both from the author and his counsel and from
the teacher and the headmaster. The author has specifically pointed
out that the police should have assessed whether the statements that
gave rise to the complaint had in fact been made. The State party argues
that both the police and the Public Prosecutor assessed that it was
not necessary to decide definitively whether the statements were in
fact made as, even if they had been made, they were not criminal pursuant
to section 266b.
4.12 The task
of the police in its treatment of a complaint differs from the way a
criminal case is treated by the courts. The task of the police is not
to establish in a binding manner what actually happened, but to assess
"whether the conditions of imposing criminal liability ... are
satisfied ..." (section 743 of the Administration of Justice Act).
The police have determined that, to be able to make this assessment,
it was not necessary to decide whether the alleged statements had in
fact been made, as whether they had been made or not, they were not
the author has pointed out that the police should have determined whether
the expressions used were intended to disparage the national origin
of the author and whether they were racially discriminatory. According
to the State party, such a determination was indeed made, as reflected
in the decisions of the Chief Constable and the District Public Prosecutor.
4.14 The author
has further pointed out that he, his brother and six named witnesses
were not interviewed by the police. The State party argues that the
statements, if they had been made, could not be considered as falling
within section 266b of the Criminal Code. This made it unnecessary to
interview the applicant, who had given an account of his understanding
of the incident in his written information. Against this background,
the State party considers that it was equally unnecessary to interview
the applicant's brother and the six witnesses.
4.15 The State
party finds that the police did initiate a proper investigation. Thus,
article 2 (1) (d), article 5 (e) (v) and article 6 of the Convention
have not been violated, nor has article 4 (a).
5. In a submission
dated 10 January 2000 counsel argues that the State party recognizes
in its response some of the essential elements which gave rise to the
report by the author to the police. In previous cases the Committee
has stressed the need for a thorough investigation of reported cases
of racial discrimination. As explained in the initial submission, the
police declined to examine the case after having interviewed only
the two representatives of the high school. In order to fulfil the requirements
of a thorough investigation, and in order to verify whether the questions
relating to the expressions used and their status under Danish law,
the police should at least have interviewed the author and/or the witnesses.
and proceedings before the Committee
6.1. The State
party submits that Mr. K.P. did not deny having called the author and
his group "monkeys". It also submits that Mr. O.T. did not
deny having said something similar. It is also established that these
utterances were made in the course of a tense episode in a school corridor
and in the presence of several witnesses. Thus, the Committee is of
the opinion that the author was insulted in public, at least by Mr.
6.2. The District
Public Prosecutor did not establish whether the author had been insulted
on the grounds of his national or ethnic origin, in violation of the
provisions of article 2, paragraph 1 (d), of the Convention. It is the
opinion of the Committee that if the police involved in the case had
not discontinued their investigations, it might have been established
whether the author had indeed been insulted on racial grounds.
6.3. From information
submitted by the State party in its fourteenth periodic report (CERD/C/362/Add.1),
the Committee gathers that on several occasions persons have been convicted
by Danish courts for breaches of section 266b of the Criminal Code for
insulting or degrading statements similar to the ones uttered in the
present case. Therefore, the Committee does not share the opinion of
the State party that the statements in question do not fall within section
266b of the Criminal Code.
to the failure of the police to continue their investigations, and the
final decision of the Public Prosecutor against which there was no right
of appeal, the author was denied any opportunity to establish whether
his rights under the Convention had been violated. From this it follows
that the author has been denied effective protection against racial
discrimination and remedies attendant thereupon by the State party.
7. The Committee
considers that the author has established a prima facie case for the
purpose of admissibility. It also considers that the conditions for
admissibility have been satisfied. It therefore decides, under rule
91 of its rules of procedure, that the communication is admissible.
8. As for the
merits, the Committee considers that, in the light of the above findings,
the facts as presented constitute a violation of article 6 of the Convention.
9. The Committee
recommends to the State party to ensure that the police and the public
prosecutors properly investigate accusations and complaints related
to acts of racial discrimination which should be punishable by law according
to article 4 of the Convention.
1. See opinions adopted by the Committee in L.K. v. the Netherlands
(CERD/C/42/D/4/1991), Yilmaz-Dogan v. the Netherlands (CERD/C/36/D/1/1984)
and Habassi v. Denmark (CERD/C/54/D/10/1997).