Alleged victim: The author
State party concerned : Denmark
Date of communication: 13 July 1999 (initial submission)
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 17 March 2000,
Having concluded its consideration of communication
No. 17/1999, submitted to the Committee under article 14 of the International
Convention on the Elimination of All Forms of Racial Discrimination,
Having taken into consideration all written information
made available to it by the author and the State party,
Bearing in mind rule 95 of its rules of procedure
requiring it to formulate its opinion on the communication before it,
Adopts the following:
1.1The author of the communication is Mr. B.J., a Danish engineer of
Iranian origin born in 1965 who claims to be a victim of violations
by Denmark of article 2, subparagraph l (a), (b) and (d), article 5
(f) and article 6 of the Convention. He is represented by counsel.
1.2In 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 bv the author
2.1The author has lived in Denmark since 1984 and has
Danish nationality. On 1 February 1997 he went to a discotheque in Odense
with his brother and a group of friends. Two of them were of Danish
origin and four were not. The doorman of the discotheque, Mr. M.R.S.,
refused to let them in. When the author asked the reason Mr. M.R.S.
replied that it was because they were "foreigners".
2.2On 2 February 1997 the author reported the matter to
the police, complaining of racial discrimination. The police assistant
on duty was unwilling to accept the complaint and informed the author
that the admissions policy was entirely up to the owners of the discotheque.
2.3On 3 February 1997 the author filed a written complaint
that was rejected by the police. He then appealed to the State Attorney
who decided to initiate an investigation. Subsequently, the Public Prosecutor
brought the case before the District Court of Odense. By decision of
20 March 1998 the Court ruled that Mr. M.R.S. was to be fined DKr 1,000
for violation of section 1, subparagraph 2, of Consolidated Act No.
626 of 29 September 1987 on racial discrimination.
2.4The author had also requested the Public Prosecutor
to file a claim for compensation in accordance with section 26 of the
Act on Civil Liability. In that respect the court decided that the violation
to which the author had been subjected was not of such a grave or humiliating
character as to justify the granting of pecuniary compensation. Accordingly,
the claim was rejected.
2.5The author did not receive a copy of the court's judgement
until the time-limit for filing an appeal to the High Court had expired.
With the assistance of the Documentary and Advisory Centre on Racial
Discrimination (DRC) he obtained a special permit from the High Court
of the Eastern Circuit to bring the case before it. However, the High
Court did not find any basis for a claim of compensation. According
to its judgement, the doorman had informed the author and his friends
that they could not enter the discotheque because, in accordance with
the discotheque's rules, there were already more than ten foreigners
inside. That information was first given to the author's brother and
then to the author himself in a polite manner. In the circumstances
the High Court concluded that the violation of the author's honour committed
by the doorman was not of such severity and did not involve such
humiliation as to justify the granting of compensation under section
26 of the Act on Civil Liability. The Court made reference to the fact
that the doorman had been fined for rejecting the author and that, accordingly,
the necessary verification and condemnation of the act had taken place
and the author had had sufficient satisfaction.
2.6Judgements of the High Court in appeal cases may normally
not be appealed to the Supreme Court. However, the Procesbevillingsnaevn
may grant a special permit if the case involves issues of principle.
On 4 March 1999 the author's counsel applied to the Procesbevillingsnaevn
for such a permit, arguing that Danish courts had never before had
the possibility to interpret section 26 of the Act on Civil Liability
in the light of article 6 of the Convention. The application, however,
was rejected by letter of 11 May 1999 and was not brought before the
Supreme Court. No further remedies are available under Danish law.
3.1According to counsel, it is undisputed that the author's
exclusion from the discotheque was an act of racial discrimination.
Article 6 of the Convention stipulates that effective satisfaction and
reparation must be granted for any damage suffered as a result of discrimination.
However, the purely symbolic fine imposed by the Odense court does not
provide effective satisfaction or reparation in accordance with that
provision. Furthermore, under section 26 of the Danish Act on Civil
Liability it is possible to grant compensation for insult. By refusing
such compensation the Danish courts have failed to apply Danish law.
3.2Counsel further claims that by refusing the author's
right to compensation the Danish courts have not fulfilled their obligations
under article 2, subparagraph 1 (a), (b) and (d), of the Convention.
He finally claims that by allowing the discotheque to refuse the author
access on racial grounds the State party has not fulfilled its obligations
under article 5 (f) of the Convention.
State party's observations
4.1In a submission dated 29 November 1999 the State party
recognizes that the conditions for admissibility of the communication
are satisfied. However, it claims that no violation of the Convention
has occurred and that the communication is manifestly ill-founded.
4.2The State party recalls that by indictment of 3 June
1997, the Chief Constable of Odense charged the doorman in question
with violation of section 1 (2), of the Act Prohibiting Discrimination
on the basis of Race (Consolidated Act No. 626 of 29 September 1987),
because on 2 February 1997 he refused the author admittance on the basis
of the latter's colour and ethnic origin. On 20 March 1998 the District
Court of Odense found the doorman guilty of the charge. Upon counsel's
request, the prosecutor claimed that the doorman should pay compensation
for non-pecuniary damage to the author, in accordance with section 26
of the Act on Liability in Damages (erstatningsansvarsloven)
and article 6 of the Convention. However, the claim for compensation
was dismissed by the District Court. The author filed an appeal with
the Eastern High Court claiming that the offender should be ordered
to pay compensation for non-pecuniary damage of DKr 10,000 with the
addition of pre-judgement interest. However, the Eastern High Court
upheld the judgement of the District Court.
4.3In connection with the alleged violation of article
2 (1) (a), (b) and (d) of the Convention, the State party argues that
article 2 (1) (d) is the most relevant provision, as article 2 (1) (a)
and (b) do not make any independent contribution in relation to the
author's complaint, which concerns discrimination committed by a private
individual. The adoption of Consolidated Act No. 626 of 29 June 1987
prohibiting discrimination on the basis of race is to be seen, inter
alia, as fulfilment of the obligations following from article
2 (l) (d), 5 (f) and 6 of the Convention. Not only has the State party
adopted law that criminalizes acts of racial discrimination such as
that of which the applicant was a victim on 2 February 1997, but Danish
authorities have enforced these criminal provisions in the specific
case by prosecuting and penalizing the doorman.
4.4Concerning the author's claim that the purely symbolic
nature of the fine does not provide effective satisfaction or reparation,
the State party claims that the Convention cannot be interpreted to
mean that it requires a specific form of penalty (such as imprisonment
or a fine) or a specific severity or length (such as a non-suspended
custodial penalty, a suspended custodial penalty, a fine of a specific
amount or the like) as the sanction for specific types of acts of racial
discrimination. In the State party's view, it is not possible to infer
a requirement of a penalty of a specific type or severity from the wording
of the Convention, the practice of the Committee in its consideration
of communications under article 14, or from the general recommendations
adopted by the Committee.
4.5Violations of section 1 of the Act prohibiting discrimination
on the basis of race are punished with "a fine, lenient imprisonment
or imprisonment for a term not exceeding six months". In determining
the penalty within the maximum penalty provided for by the provision,
the court in question must take into account a multiplicity of elements.
It thus follows from section 80 (1) of the Danish Criminal Code that,
in determining the penalty, account shall be taken of the gravity of
the offence and information concerning the offender's character, including
his general personal and social circumstances, his conduct before and
after the offence and his motives in committing it.
4.6Determination of suitable sanctions in specific cases
falls within the margin of appreciation of the State party. The national
authorities have the benefit of direct contact with all the persons
concerned and are better able to assess what is a suitable sanction
in the specific case. Moreover, it must be up to the State party to
decide what sanction must be deemed sufficiently deterrent and punitive.
It is recognized, however, that the margin of appreciation should not
be exercised in a manner which would impair the very essence of article
6 of the Convention.
4.7The penalty imposed on the doorman in the present case
accords with domestic case law in similar cases and can be compared
with the sanctions in criminal cases concerning racist statements falling
within section 266b of the Criminal Code. It can therefore not be considered
a fine of a "purely symbolic nature".
4.8In view of the foregoing, the State party is of the
opinion that there is no basis for alleging that article 2 (l) (d),
article 5 (f) or article 6 of the Convention has been violated by the
conduct of the criminal proceedings against the doorman, as the judgement
established that the author had been the victim of a prohibited act
of racial discrimination.
4.9An individual who believes that he or she has been
the subject of discrimination in violation of the Act prohibiting discrimination
on the basis of race, interpreted in the light of the Convention, can,
if relevant, claim compensation for pecuniary or non-pecuniary damage
from the offender. However, the State party finds that it must be left
to the individual State party to determine the detailed procedural rules
and rules of substance for awarding compensation for non-pecuniary damage.
4.10The right to "adequate reparation or satisfaction"
is not an absolute right, but may be subject to limitations. These limitations
are permitted by implication since such a right, by its very nature,
calls for regulation by the State. In this respect, the States parties
enjoy a margin of appreciation and can lay down limitations provided
that those limitations do not restrict or reduce the right in such a
way or to such extent that its very essence is impaired. In this respect
guidance may be found in the jurisprudence of the European Court of
4.11The State party finds that the last part of article
6 of the Convention is to be interpreted in the same way as article
5 (5) of the European Convention for the Protection of Human Rights
and Fundamental Freedoms. It appears from the latter that everyone who
has been the victim of arrest or detention in contravention of its provisions
"shall have an enforceable right to compensation". In the interpretation
of this provision the European Court has established that the provision
does not involve an unconditional right to compensation, as the Contracting
States have a right to demand that certain conditions be satisfied.
Thus, the Court has stated that the said provision "does not prohibit
the Contracting States from making the award of compensation dependent
upon the ability of the person concerned to show damage resulting from
the breach. In the context of article 5 (5) ... there can be no question
of 'compensation' where there is no pecuniary or non-pecuniary damage
4.12It is thus the opinion of the State party that the
Convention cannot be interpreted to mean that a person who has been
the subject of an act of discrimination committed by another individual,
including an act of discrimination in violation of article 5 (f) of
the Convention, always has a claim for compensation for non-pecuniary
damage. The fact that a person who has committed such an act is actually
prosecuted and convicted can in certain cases constitute in itself "adequate
reparation or satisfaction". This view is supported, inter alia,
by the interpretative statement concerning article 6 of the Convention
deposited by the United Kingdom when signing the Convention. The statement
in question says: "The United Kingdom interprets the requirement in
article 6 concerning 'reparation or satisfaction' as being fulfilled
if one or other of these forms of redress is made available and interprets
' satisfaction' as including any form of redress effective to bring
the discriminatory conduct to an end".
4.13According to Danish law, it is possible both in law
and in fact to be awarded compensation for pecuniary and non-pecuniary
damage in case of acts of racial discrimination committed by individuals
in violation of the Convention, but this presupposes that the conditions
therefor are otherwise satisfied.
4.14Pursuant to section 26 (1) of the Act on Liability
in Damages, a person who is responsible for unlawful interference with
another person's liberty, invasion of his privacy, damage to his self-esteem
or character or injury to his person shall pay compensation for the
damage to the injured person. The provision is mandatory but the condition
is that the unlawful act has inflicted "damage" (in Danish tort)
the injured party. Tort in the Danish sense is damage to another
person's self-esteem and character, that is, the injured person's perception
of his own worth and reputation. The humiliation is what motivates the
claim for compensation for nonpecuniary damage. It is inherent in the
requirement of " unlawful" damage that it must be culpable and that
it must be of some gravity. When determining the compensation, if any,
account must be taken of the gravity of the damage, the nature of the
act and the circumstances in general.
4.15The decision of the Eastern High Court refusing compensation
to the author for nonpecuniary damage was based on a specific assessment
of the circumstances concerning the criminal act. Thus, the Court found
that the damage to the author's self-esteem had not been sufficiently
grave or humiliating to determine any compensation for non-pecuniary
4.16The fact that a person who has committed an act of
racial discrimination against another individual is actually prosecuted
and convicted can in certain cases constitute in itself "adequate reparation
or satisfaction". The judgement of the Eastern High Court accords with
this view when it states the following: "The Court further refers to
the facts that the doorman has been sentenced to a fine in respect of
the refusal of admittance, that the requisite determination and condemnation
of the act has thus been effected and that this has afforded the applicant
4.17It is thus the opinion of the State party in the specific
case that the fact that the doorman was sentenced to a fine for his
refusal to admit the author to the discotheque in question constitutes
"adequate reparation or satisfaction".
5.1In a submission dated 14 January 2000 counsel maintains
that no effective remedy has been granted to the author in order to
comply with the relevant provisions of the Convention, including article
6. In order to implement the Convention conscientiously the States parties
must be under an obligation to ensure its effective observance. Sanctions
for breaches of national provisions implementing the Convention must
be effective and not only symbolic.
5.2The State party argues that under Danish law it is
possible to be awarded compensation for pecuniary and non-pecuniary
damage in case of acts of racial discrimination in violation of the
Convention committed by individuals, but this predisposes that the conditions
therefor are otherwise satisfied. To counsel's knowledge no such court
decisions exist. The present case was the first in which a claim for
compensation was examined by a Danish court.
5.3Furthermore, according to section 26 of the Danish
Act on Liability compensation is granted in accordance with other statutory
provisions. As no other statutory provisions exist in this field there
would be no point in awaiting coming court decisions.
5.4The decision to refuse compensation implies, as a matter
of fact, that no compensation for non-pecuniary damages is granted in
cases of racial discrimination if the racial discrimination has taken
place "politely" ;. Such a position is not in conformity with the Convention.
Issues and proceedings before the Committee
6.1As readily recognized by the State party the Committee
considers that the conditions for admissibility are satisfied. It therefore
decides, under rule 91 of its rules of procedure, that the communication
6.2The Committee considers that the conviction and punishment
of the perpetrator of a criminal act and the order to pay economic compensation
to the victim are legal sanctions with different functions and purposes.
The victim is not necessarily entitled to compensation in addition to
the criminal sanction of the perpetrator under all circumstances. However,
in accordance with article 6 of the Convention, the victim's claim for
compensation has to be
considered in every case, including those cases where
no bodily harm has been inflicted but where the victim has suffered
humiliation, defamation or other attack against his/her reputation and
6.3Being refused access to a place of service intended
for the use of the general public solely on the ground of a person's
national or ethnic background is a humiliating experience which, in
the opinion of the Committee, may merit economic compensation and cannot
always be adequately repaired or satisfied by merely imposing a criminal
sanction on the perpetrator.
7.While the Committee considers that the facts described
in the present communication disclose no violation of article 6 of the
Convention by the State party, the Committee recommends that the State
party take the measures necessary to ensure that the victims of racial
discrimination seeking just and adequate reparation or satisfaction
in accordance with article 6 of the Convention, including economic compensation,
will have their claims considered with due respect for situations where
the discrimination has not resulted in any physical damage but humiliation
or similar suffering.