The Committee on the Elimination of Racial Discrimination,established under article 8 ofthe International Convention on the Elimination of All Forms of Racial Discrimination,Meetingon 21 August 2009,Having concludedits consideration of communication No. 41/2008, submitted to theCommittee on the Elimination of Racial Discrimination by Mr. Ahmed Farah Jama underarticle 14 of the International Convention on the Elimination of All Forms of RacialDiscrimination,Having taken into accountall information made available to it by the petitioner of thecommunication, his counsel and the State party,Adoptsthe following:OPINION

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1.1 The petitioner is Mr. Ahmed Farah Jama, a Somali citizen living in Denmark, bornin 1963. He claims to be a victim of violations by Denmark of article 2, paragraph 1 (d),article 4 and article 6 of the International Convention on the Elimination of All Forms ofRacial Discrimination. He is represented by counsel, Mr. Niels Erik Hansen.

CERD/C/75/D/41/2008page 31.2 In conformity with article 14, paragraph 6 (a), of the Convention, the Committeetransmitted the communication to the State party on 3 March 2008.The facts as submitted by the petitioner2.1 On 18 February 2007, the Danish newspaperSobdagsavisenpublished an interview withMs. Pia Merete Kjaersgaard, a member of parliament and the leader of the Danish People’sParty. Among other issues, she referred to an incident which had taken place in 1998, when shewas attacked in an area of Copenhagen called Norrebro by a group of individuals. In particular,she said: “Suddenly they came out in large numbers from the Somali clubs. There she is, theycried, and forced the door to the taxi open and then beat me … I could have been killed; if theyhad entered I would have been beaten up. It was rage for blood.” The petitioner claims that noSomalis were involved in the incident in question, and that this was a new false accusation byMs. Kjaersgaard against the Somalis living in Denmark.2.2 The petitioner filed a complaint requesting the police to investigate whetherMs. Kjaersgaard’s statement constituted a crime under section 266b of the Criminal Code.

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He claims that the persons who actually attacked Ms. Kjaersgaard were never arrested by thepolice and their identity and nationality were never established. Furthermore, at the timeMs. Kjaersgaard had not indicated that the authors of the attack were Somalis and none of thenewspaper articles published or witnesses stated that Somalis were involved. He recalls that inthe past Ms. Kjaersgaard had made public statements accusing Somalis of paedophilia and gangrape of Danish women.

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2.3 In a decision dated 25 June 2007, the Commissioner of Police, with the consent of theRegional Public Prosecutor, rejected the complaint, as it seemed unlikely that a crime had beencommitted. The decision indicated that the statement was a mere description of the acts that tookplace and that the context in which it was made had been taken into consideration. It alsoindicated that, because the Regional Public Prosecutor had been involved in the proceedings, anyappeal against it should be forwarded to the Prosecutor-General.

CERD/C/75/D/41/2008page 42.4 The petitioner appealed to the Director of Public Prosecutions on 10 July 2007.On 18 September 2007, the Director dismissed the case, as he considered that the petitioner hadno right to appeal. He held that the petitioner had neither a personal nor a legal interest in thecase and therefore could not be considered a party to it. Only the parties were entitled to appealthe decision. Those reporting the crime, those affected by the crime, witnesses and so on wereconsidered parties only if they had a direct, personal and legal interest in the matter. Lobbyorganizations, companies or other entities or persons handling the interests of others or theinterests of the general public on an idealistic, professional, organizational or similar basis couldnot normally be considered parties to a criminal case, unless they had received a power ofattorney from a party. Accordingly, the Documentation and Advisory Centre on RacialDiscrimination (DACoRD), which was acting on behalf of the petitioner, could not beconsidered entitled to appeal.The complaint3.1 The petitioner claims that the absence of a proper investigation by the police and theRegional Public Prosecutor constitutes a violation of article 2, paragraph 1 (d), and article 6 ofthe Convention. The argument in the decision of 25 June 2007 that Ms. Kjaersgaard’s statementwas a mere description of the acts that took place in 1998 implied that the police had not evenconsulted their own files on the case. If they had, they would have learned that the suspect inthe 1998 incident was a white male.3.2 The petitioner further claims that the State party did not fulfil its obligation, under article 4of the Convention, to take effective action regarding an act of hate speech against Somalis livingin Denmark. He considers that the act in question constitutes racist propaganda and thereforefalls within the scope of section 266b (2) of the Criminal Code. Furthermore, he refers to astatement made by a police officer to the media according to which it was uncontested thatpeople had swarmed out of the Somali clubs when Ms. Kjaersgaard was attacked in 1998. Byconfirming the false accusation made by Ms. Kjaersgaard, this statement may also constitute aviolation of article 4, as it would make the accusations more credible and stir up hatred againstSomalis living in Denmark.3.3 Finally, the petitioner claims that the denial of his right to appeal violates his right to aneffective remedy. The ongoing public statements against Somalis have a negative effect on hisdaily life in Denmark. A study published by the Danish Board for Ethnic Equality in 1999indicated that Somalis living in Denmark constituted the ethnic group most likely to suffer fromracist attacks in the street (verbal abuse, violent attacks, spitting in the face, etc.). As a blackperson of Somali origin, he has to be on the alert when he enters into public spaces, fearing racistattacks and abuse. Thus, he considers himself a victim in the present case and has a personalinterest in it.State party’s observations on admissibility and the merits4.1 On 3 June 2008, the State party submitted observations on the admissibility and merits ofthe communication. It argues that the petitioner has failed to establish a prima facie case for thepurpose of admissibility and that he did not exhaust domestic remedies.

CERD/C/75/D/41/2008page 54.2 The State party states that on 16 March 2007 the Documentation and Advisory Centre onRacial Discrimination, on behalf of the petitioner, reported Ms. Kjaersgaard to the police forviolation of section 266b of the Criminal Code. On 25 June 2007, the Commissioner of theWest Copenhagen Police decided, pursuant to section 749 (1) of the Danish Administration ofJustice Act, not to initiate an investigation. The Commissioner indicated that Ms. Kjaersgaard’sstatement did not “constitute an aggravated insult and degradation of a group of persons that canbe considered to fall within the scope of section 266b of the Criminal Code. I have emphasizedin particular the nature of the statement, which is a description of a specific sequence of events,as well as the context in which it was made (…). Hence, as the statement cannot be considered tofall within the scope of section 266b of the Criminal Code, there is no basis for initiating anyinvestigation”. The decision was issued after endorsement by the Regional Public Prosecutor forNorth Zealand and West Copenhagen.4.3 As a result of the appeal filed by DACoRD on behalf of the petitioner, the Directorof Public Prosecutions obtained an opinion from the Regional Public Prosecutor dated20 July 2007. The Prosecutor stated, inter alia, that in his view the statements did not fall withinthe scope of section 266b of the Criminal Code, whether or not it could actually be proved whohad assaulted Ms. Kjaersgaard in 1998. Accordingly, it would have made no difference to hisdecision on the matter if he had had police reports on the 1998 incident or on the questioning ofMs. Kjaersgaard at his disposal.4.4 The communication should be declared inadmissible in its entirety because thepetitioner has failed to establish a prima facie case. One of the themes of the interview withMs. Kjaersgaard to theSondagsavisendealt with what it is like to have to live under policeprotection and, in that connection, the 1998 incident was mentioned. The statements are in thenature of a description of a specific sequence of events, as part of a description of howMs. Kjaersgaard perceived the incident. She only stated in the interview that the attackers cameout from “the Somali clubs”, but did not express any attitude or make any degrading statementabout persons of Somali origin. The statements in question therefore cannot be consideredracially discriminating, and they thus fall outside the scope of article 2, paragraph 1 (d), article 4and article 6 of the Convention.4.5 In the communication to the Committee, the petitioner referred to a statement ofMs. Kjaersgaard (“I could have been killed; if they had got in, I would have been beaten to apulp at least. It was a killing rage.”) This statement was not included in the complaint lodged bythe petitioner with the police, nor was it subsequently reported to the Danish authorities. Sincethe applicant has thus not exhausted domestic remedies in this respect, this part of thecommunication should be declared inadmissible.4.6 It appears that the petitioner considers himself to be a victim of a racist attack and that hehas an interest in the case because the ongoing statements affect his life in a negative way.According to section 267 (1) of the Criminal Code, any person who violates the personal honourof another by offensive words or conduct or by making or spreading allegations of an act likelyto disparage him in the eyes of his fellow citizens, is liable to a fine or to imprisonment for aterm not exceeding four months. Further, according to section 268, if an allegation has beenmade or disseminated in bad faith, or if the author had no reasonable ground to regard it as true,he is guilty of defamation. Pursuant to section 275 (1) of the Criminal Code, these offences aresubject to private prosecution. The State party recalls the Committee’s Opinion in

CERD/C/75/D/41/2008page 6communication No. 25/2002,Sadic v. Denmark,in which the Committee recognized that theinstitution of proceedings under section 267 (1) of the Criminal Code could be regarded as aneffective remedy which the petitioner had failed to exhaust. It also recalls communicationNo. 34/2004,Gelle v. Denmark,where the Committee held that the case in question concernedstatements that were made squarely in the public arena and that it would thus be unreasonable toexpect the petitioner to institute separate proceedings under the general provision of section 267,after having unsuccessfully invoked section 266b in respect of circumstances directlyimplicating the language and object of that provision. Finally, the State party recalls the decisionof the Human Rights Committee declaring inadmissible communication No. 1487/2006,Ahmad v. Denmark,concerning the publication of an article called “The Face of Muhammad” ina Danish newspaper on 30 September 2005. The Director of Public Prosecutions decided againstbringing criminal prosecutions in respect of the publications at issue pursuant to sections 140and 266b of the Criminal Code. Subsequently, Mr. Ahmad, on behalf of the Islamic Communityof Denmark, instituted private criminal proceedings against the editors of the newspaper undersections 267 and 268 of the Code. Eventually, the editors were acquitted. The judgement wassubsequently appealed to the High Court, where the case was still pending when the HumanRights Committee declared it inadmissible for failure to exhaust domestic remedies. Accordingto the State party, this decision should be taken into account when assessing whether thepresent communication should be declared inadmissible. It does not follow from article 2,paragraph 1 (d), and article 6 of the Convention that the petitioner is entitled to a specificremedy. The crucial factor is that a remedy is available.4.7 Regarding the merits, the State party finds that no violation of article 2, paragraph 1 (d),article 4 or article 6 took place. The assessment carried out by the Commissioner of theWest Copenhagen Police fully satisfies the requirements that can be inferred from theConvention as interpreted in the Committee’s practice. The question in the present case wassolely whether Ms. Kjaersgaard’s statements could be considered to fall within the scope ofsection 266b of the Criminal Code. There were thus no problems with the evidence and thepublic prosecutor simply had to perform a legal assessment of the statements in question. Thislegal assessment was thorough and adequate, although it did not have the outcome sought by thepetitioner. In his refusal to initiate an investigation, the public prosecutor placed particularemphasis on the nature of Ms. Kjaersgaard’s statements as a description of a specific sequence ofevents and on the fact that the statements were made as part of Ms. Kjaersgaard’s description ofthe 1998 events.4.8 According to the guidelines on the investigation of violations of section 266b of theCriminal Code, issued by the Director of Public Prosecutions, “in cases where a report of aviolation of section 266b of the Criminal Code is lodged with the police, the person who issuedthe written or oral statement should normally be interviewed, inter alia, to clarify the purpose ofthe statement, unless it is obvious that section 266b of the Criminal Code has not been violated”.The reason why the case files concerning the 1998 incident were not reviewed and thatMs. Kjaersgaard was not interviewed is that the statements did not fall within the scope of thesaid section, regardless of whether it could be proved who had allegedly assaulted her in 1998.Ms. Kjaersgaard simply stated that her attackers came out from “the Somali clubs”, and did notmake any disparaging or degrading remarks about persons of Somali origin. In that light,obtaining the police reports on the 1998 incident was irrelevant to the decision on the matter.Nothing in the present case could provide the public prosecutor with a basis for establishing thatMs. Kjaersgaard had criminal intent to make disparaging statements about a specific group of

CERD/C/75/D/41/2008page 7people. Consequently, the public prosecutor’s handling of the case satisfies the requirements thatcan be inferred from article 2, paragraph 1 (d), and article 6 of the Convention, taken togetherwith the Committee’s practice.4.9 The State party rejects the claim that by confirming the false accusation made byMs. Kjaersgaard, the police may also be in violation of article 4. The fact that the Commissionerdismissed the report cannot be taken to mean that it was determined whether the statementsabout the 1998 incident were true or false. In fact, the Commissioner did not give any opinion onthis matter because he considered that the statements fell outside the scope of section 266b.4.10 Regarding the petitioner’s claim that neither he nor DACoRD was able to appeal theCommissioner’s decision, the Convention does not imply a right for citizens to appeal thedecisions of national administrative authorities to a higher administrative body. Nor does theConvention address the question of when a citizen should be able to appeal a decision to asuperior administrative body. Hence, the Convention cannot be considered a bar to a general ruleto the effect that it is normally only the parties to a case or others with a direct, essential,individual and legal interest in the case who are entitled to appeal a decision about criminalprosecution.4.11 The State party refers to Notice No. 9/2006 issued by the Director of Public Prosecutions,according to which police commissioners must notify him of all cases in which a report of aviolation of section 266b is dismissed. This reporting scheme builds on the ability of the Directorof Public Prosecutions, as part of his general supervisory powers, to take a matter up forconsideration to ensure proper and uniform enforcement of section 266b. In the present case, theDirector found no basis for exceptionally disregarding the fact that neither DACoRD nor theapplicant was entitled to appeal the decision. Furthermore, in its appeal, DACoRD did not giveany reason, either in its own right or on behalf of the petitioner, as to why it considered itselfentitled to appeal. The State party concludes that the petitioner did have access to an effectiveremedy.Petitioner’s comments on the State party’s submission5.1 On 18 August 2008, the petitioner commented on the State party’s submission. He heldthat Ms. Kjaersgaard’s description of the 1998 events was incorrect, as nobody (Somalis ornon-Somalis) came out of the Somali clubs when she arrived in her taxi. No Somalis wereinvolved, either as bystanders or aggressors, and no Somalis participated in the planning andexecution of the attack. Refugees from Somalia have been one of the main targets, along withother groups, of the ongoing racist propaganda of the Danish People’s Party. In spite of this, thepolice did not acknowledge that the statement was false.5.2 In connection with the claims related to articles 2 and 6 of the Convention, the policeshould have interviewed Ms. Kjaersgaard in the course of the investigation in order to clarifywhy her statement was different from that made in 1998. At that time she had not indicated thather attackers came out of the Somali clubs. Furthermore, he insists that in being denied the rightto appeal he was also denied the right to an effective remedy.5.3. The petitioner disagrees with the State party’s argument that no prima facie case has beenestablished. As to the argument that domestic remedies were not exhausted in connection with

CERD/C/75/D/41/2008page 8Ms. Kjaersgaard’s statement that “she could have been killed”, the petitioner confirms that nosuch statement was included in his report to the police. However, the police could have includedit in its investigation, as it was mentioned in the article in question. The decision by the policenot to investigate further means that they did not find a violation in connection with that phraseeither.5.4 The petitioner argues that his case is not comparable to communication No. 1487/2006,Ahmad v. Denmark,submitted to the Human Rights Committee. This communication concernsreligious discrimination against Islam and thus does not fall within the scope of the Convention.Furthermore, in communication No. 1487/2006, the legal standing of the authors in connectionwith the appeal was never questioned.5.5 Regarding the State party’s observations on the merits, the petitioner rejects the argumentthat Ms. Kjaersgaard’s statement does not fall within the scope of section 266b of the CriminalCode. False accusations against an ethnic group have always been covered by that provision, aswell as by article 4 of the Convention. If the public prosecutor had consulted the 1998 file, itwould not have been “obvious”, as the State party suggested, that the statement did not fallwithin the scope of section 266b.Issues and proceedings before the CommitteeConsideration of admissibility6.1 Before considering any claim contained in a communication, the Committee on theElimination of All Forms of Racial Discrimination must decide, pursuant to article 14,paragraph 7 (a), of the Convention, whether or not the communication is admissible.6.2 With regard to the State party’s objection that the petitioner failed to establish a primafacie case for the purposes of admissibility, the Committee observes that Ms. Kjaersgaard’sstatement was not of such a character as to fall ab initio outside the scope of article 2,paragraph 1 (d), article 4 and article 6 of the Convention. The Committee also notes thepetitioner’s claim that the ongoing public statements against Somalis have a negative effect onhis daily life and considers that he satisfies the “victim” requirement within the meaning ofarticle 14, paragraph 1, of the Convention. It thus follows that the petitioner has sufficientlysubstantiated his claims for the purposes of admissibility.6.3 Regarding the petitioner’s claim that he was not given the opportunity to appeal thedecision of the police commissioner, the Committee does not consider it within its mandate toassess the decisions of domestic authorities regarding the appeals procedure in criminal matters.This part of the communication is therefore inadmissibleratione materiaeunder article 14,paragraph 1, of the Convention.6.4 On the issue of exhaustion of domestic remedies, the State party claims that part ofMs. Kjaersgaard’s statement was not included in the petitioner’s report to the police, in particularthe sentences: “I could have been killed; if they had got in, I would have been beaten to a pulp atleast. It was a killing rage.” The Committee considers, however, that these sentences are closelylinked to those in which she referred to the authors of the attack. Even if they were not referredto specifically by the petitioner, they are part of the claim which constituted the gist of his report

CERD/C/75/D/41/2008page 9to the police. Accordingly the Committee does not share the State party’s view that thepetitioner did not exhaust domestic remedies with respect to that part of the statement.6.5 The Committee takes note of the State party’s argument that the applicant is not entitled toa specific remedy, and that private prosecution is possible under sections 267 (1) and 268 of theCriminal Code. The Committee notes, however, that the statements were made in the publicarena, which is the central focus of both the Convention and section 266b of the Criminal Code,and that the petitioner’s choice of remedy was not a controversial issue at the national level. Itwould thus be unreasonable to require the petitioner to initiate also proceedings undersections 267 (1) and 268, after having unsuccessfully invoked section 266b in respect ofcircumstances directly implicating the language and object of that provision.

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6.6 In the absence of any further objections to the admissibility of the communication, theCommittee declares the communication admissible, insofar as it relates to the State party’salleged failure fully to investigate the incident.Consideration of the merits7.1 Acting under article 14, paragraph 7 (a), of the International Convention on theElimination of All Forms of Racial Discrimination, the Committee has considered theinformation submitted by the petitioner and the State party.7.2 The issue before the Committee is whether the State party fulfilled its positive obligation totake effective action against reported incidents of racial discrimination, having regard to theextent to which it investigated the petitioner’s complaint under section 266b of the CriminalCode. This provision criminalizes public statements by which a group of people are threatened,insulted or degraded on account of their race, colour, national or ethnic origin, religion or sexualinclination.7.3 The Committee recalls its earlier jurisprudence

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according to which, it does not suffice, forthe purposes of article 4 of the Convention, merely to declare acts of racial discriminationpunishable on paper. Rather, criminal laws and other legal provisions prohibiting racialdiscrimination must also be effectively implemented by the competent national tribunals andother State institutions. This obligation is implicit in article 4 of the Convention, under whichStates parties undertake to adopt immediate and positive measures to eradicate all incitement to,or acts of, racial discrimination. It is also reflected in other provisions of the Convention, such asarticle 2, paragraph 1 (d), which requires States to prohibit and bring to an end, by all appropriatemeans, racial discrimination, and article 6, which guarantees to everyone effective protection andremedies against any acts of racial discrimination.

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CERD/C/75/D/41/2008page 107.4 The Committee notes the petitioner’s claim that the reference in Ms. Kjaersgaard’sstatement, in the newspaper interview published on 17 February 2007, to the fact that heraggressors in the 1998 incident came out of the Somali clubs constituted an act of racialdiscrimination, as no Somalis were involved in the incident in question. The Committee alsonotes that the Commissioner of the West Copenhagen Police asserts that he examined the claimand concluded that Ms. Kjaersgaard’s statement was merely a description of a specific sequenceof events, in that she stated that the aggressors came out of the Somali clubs but did not makeany disparaging or degrading remarks about persons of Somali origin. The Committee considersthat, on the basis of the information before it, the statement concerned, despite its ambiguity,cannot necessarily be interpreted as expressly claiming that persons of Somali origin wereresponsible for the attack in question. Consequently, without wishing to comment onMs. Kjaersgaard’s intentions in making the statement, the Committee cannot conclude that herstatement falls within the scope of article 2, paragraph 1 (d), and article 4 of the Convention, orthat the investigation conducted by the national authorities into the 1998 incident did not meetthe requirements of an effective remedy under the Convention.8.In the circumstances, the Committee on the Elimination of Racial Discrimination, actingunder article 14, paragraph 7 (a), of the International Convention on the Elimination of AllForms of Racial Discrimination, considers that it is not in a position to state that there has been aviolation of the Convention by the State party.9.On the basis of rule 95, paragraph 1, of its rules of procedure, the Committee wouldnevertheless like to draw attention to earlier recommendations formulated in the course of itsconsideration of individual communications, in which it called on States parties to:•Ensure that the police and judicial authorities conduct thorough investigations intoallegations of acts of racial discrimination as referred to in article 4 of the Convention

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•Draw the attention of politicians and members of political parties to the particular dutiesand responsibilities incumbent upon them pursuant to article 4 of the Convention withregard to their speeches, articles or other forms of expression in the media

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[Adopted in English, French, Russian and Spanish, the French text being the original version.Subsequently to be issued also in Arabic and Chinese as part of the Committee’s annual report tothe General Assembly.]-----