S.A. v. Denmark. Opinion of the Committee on the Elimination of Racial Discrimination dated December 13, 2018. Communication No. 58/2016.
In 2016, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Denmark.
The applicant claimed to be a victim of violations by Denmark of articles 2 (1) (c), 5 and 6 of the Convention on the Elimination of All Forms of Racial Discrimination. He noted that, considering him to be a non-Danish citizen, the authorities of the State party denied him all his rights as a citizen, including the right to reside, the right to vote and the right to a health insurance card. In addition, the threat of the loss of these rights, in particular the right of residence, caused the applicant serious psychological damage. He stressed that because he had been subjected to discriminatory treatment by the Aalborg Municipality, he had to take antidepressants and could no longer work.
The Committee's legal position: In accordance with the practice of the [Committee], the victim's claim for compensation should be considered in all cases, including cases where no bodily injury was caused, but when the victim was subjected to humiliation, defamation or other encroachment on her reputation and self-esteem. The Committee recalls that, in accordance with article 6 of the UN Convention on the Elimination of Racial Discrimination, States parties shall ensure to everyone within their jurisdiction effective protection and remedies through competent national courts and other State institutions in the event of any acts of racial discrimination that infringe, in violation of the UN Convention on the Elimination of Racial Discrimination, on his human rights and fundamental freedoms, as well as the right to bring a claim to these courts for fair and adequate compensation or satisfaction for any damage, caused as a result of such discrimination. The Committee recalls that, in accordance with UN General Assembly resolution 60/147, which refers to article 6 of the UN Convention on the Elimination of Racial Discrimination, full and effective compensation includes the following forms: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition of what happened. The Committee notes that restitution is aimed at restoring the victim's original position prior to the commission of the violation; compensation should be provided for any economically assessable damage in accordance with the established procedure and proportionate to the severity of the violation and the circumstances of each case, including, in particular, the costs of legal or expert assistance; rehabilitation should include the provision of medical and psychological assistance and the provision of legal and social services, as well as judicial and administrative sanctions against persons who responsible for violations; Satisfaction should include measures such as making a public apology, including an admission of facts and responsibility, or an official statement or court decision to restore the dignity, reputation and rights of the victim and persons closely associated with the victim; and guarantees of non-repetition of what happened should include measures such as reviewing and reforming laws that facilitate the commission of such crimes. violations or allowing them (paragraph 7.8 of the Opinion).
The Committee's assessment of the factual circumstances: The Committee took note of the applicant's claim that, by rejecting his request for social assistance, the authorities denied him his civil rights, such as the right to live, the right to vote or the right to receive a health insurance card, and also noted that the applicant had obtained Danish citizenship in 2002; that after living abroad for several years, he returned to Denmark in July 2009 and applied to the municipality of Aalborg in order to receive social assistance. The Committee took note of the Municipality's decision of July 22, 2009, in which it rejected his request and ordered him to contact the Immigration Service. He also noted that on July 23, 2009, the municipality changed the previous decision and indicated that the applicant, being a Danish citizen, was entitled to receive benefits. The Committee noted that this decision was brought to the attention of the applicant on 10 August 2009 (paragraph 7.2 of the Opinion).
The Committee also took note of the applicant's claim that after his story was shown on television on 4 August 2009, he contacted the social center and that the staff with whom he dealt reiterated that he was not a Danish citizen, despite the center's decision on 4 August 2009 to admit that there was a mistake has been made and that he is indeed a Danish citizen. In this regard, the Committee also took note of the applicant's claim that, since all Danish citizens are required to register with the municipality at their place of residence after living abroad in order to gain access to social and medical services, the error committed by the Municipality of Aalborg on 22 July 2009 affected all his rights as a Danish citizen, including right of residence and voting rights. The Committee also took note of the decision of the Equal Treatment Council of 13 August 2010, in which it concluded that the applicant had been subjected to direct differential treatment by the Municipality of Aalborg. Confirmation of this conclusion in the decisions of the District Court of 6 May 2013 and the High Court of Western Denmark of 18 December 2014, the Committee agreed with the decisions of the national authorities. At the same time, he also noted the absence of signs that the national courts had taken into account the events of 4 August 2009, and [took into account] that, according to available information, no measures had been [implemented] to punish the employees of the social center who worked with the applicant. In view of the above, the Committee considered that the decisions of the Aalborg Municipality of 22 July and 4 August 2009 denying that the applicant had Danish citizenship amounted to a violation of his rights under article 5 (d) (iii) The Convention (paragraph 7.3 of the Opinion). By virtue of this provision of the Convention, "[in] accordance with the basic obligations set out in article 2 of this Convention, States Parties undertake to prohibit and eliminate racial discrimination in all its forms and to ensure the equal rights of everyone before the law, without distinction as to race, color, national or ethnic origin, in particular with regard to the implementation of the following rights:.. other civil rights, in particular:... the right to citizenship...".
With regard to the complainant's allegations under article 6 of the Convention, the main question before the Committee was whether the State party had fulfilled its obligations under this provision in order to ensure the complainant's right to seek fair and adequate compensation or satisfaction for any damage suffered as a result of racial discrimination from national competent courts and others government agencies. By virtue of the said convention provision, "[d] the participating States shall ensure to every person subject to their jurisdiction effective protection and remedies through competent national courts and other State institutions in the event of any acts of racial discrimination infringing, in violation of this Convention, on his human rights and fundamental freedoms, as well as the rights of to bring a claim to these courts for fair and adequate compensation or satisfaction for any damage suffered as a result of such discrimination."
The Committee took note of the State party's argument that "when drafting the Law on Equal Treatment, it was decided to include in it a provision establishing the right to compensation for non-material losses caused by an act of racial discrimination, and that such a provision should be an effective and deterrent sanction. The Committee further noted the State party's reference to the preparatory materials for the Law, according to which great importance should be attached to the damage caused by the alleged discriminatory act and the nature of the harmful act, as well as an analysis of whether this discriminatory act was intentional or caused by negligence in one form or another. The Committee took note of the State party's argument that these criteria had been fully applied in the present case and that, accordingly, the Equal Treatment Council had decided that the amount of compensation should be DKK 2,000. This decision was upheld by the Aalborg District Court and the High Court of Western Denmark in their decisions of 6 May 2013 and 18 December 2014, respectively. The Committee further took note of the State party's statement that the compensation provided to the applicant was in accordance with the provisions of the Convention and General recommendation No. 26 [on article 6 of the Convention] Since it is impossible to conclude from either article 6 of the Convention or General Recommendation No. 26 that there is a requirement for a specific amount of compensation" (paragraph 7.5 of the Opinion). As can be seen from the text of the Opinion, we are talking about the Law on Equal Treatment, adopted in implementation of Directive 2000/43/EC of the Council of the European Union (paragraph 4.2 of the Opinion).
The Committee also took note of the complainant's claim that the amount of compensation was significantly less than the "fair and adequate compensation" provided for in article 6 of the Convention and therefore was not an effective remedy against racial discrimination, given that in other cases of racial discrimination, more substantial amounts of compensation were paid, that the cost of living in the State party, it is very high and that such an amount is sharply different from the amount that he had to pay to cover the legal costs, namely DKK 25,000, and he sees this as a "punishment." The Committee further noted the applicant's claim that the fact that he was ordered to pay such a significant amount of legal costs was contrary to article 6 of the Convention, as it violated the right to receive fair and adequate compensation and was an obstacle to obtaining an effective remedy from perpetrators of acts of racial discrimination, as provided for in paragraph 6 of General Recommendation No. 31 [on the prevention of racial discrimination in the administration and functioning of the criminal justice system] Of the Committee (paragraph 7.6 of the Opinion).
The Committee drew attention to the fact that on 7 June 2012, the applicant appealed the decision of the Equal Treatment Council to the Aalborg District Court, stating that the compensation paid to him in the amount of 2,000 Danish kroner did not meet the requirement of "fair and adequate compensation or satisfaction for any damage suffered as a result of racial discrimination", as provided in article 6 of the Convention, since this amount is too small. The Committee further noted that on 6 May 2013 The District Court upheld the decision of the Equal Treatment Council, considering that the municipality corrected its mistake and apologized for it as soon as possible and that there was no reason to increase the amount of compensation in this regard. As the Committee stressed, the court ruled that the legal costs (DKK 25,000) should be covered by public funds. The Committee also noted that on 3 June 2013 the applicant appealed the District Court's decision to the High Court of Western Denmark, which upheld the District Court's decision on 18 December 2014. The High Court took into account that the civil servant who made the mistake did not act intentionally or through gross negligence, and the applicant received the benefit to which he was entitled. Taking into account the outcome of the case in comparison with the claims of the parties, the High Court also ordered the applicant to cover legal costs in the amount of DKK 25,000 (paragraph 7.7 of the Opinion).
The Committee stressed the following - the applicant had been compensated. However, the fair and adequate nature of such compensation must be analyzed in the light of the context in which it was provided. Thus, in relation to the specific circumstances of the present case, the compensation provided should have been analyzed taking into account the seriousness of the violation, the cost of living in the State party, the applicant's situation and the preventive nature of the measures taken to avoid similar violations in the future. The Committee took note of the applicant's claim that the fact that he was asked to contact the immigration authorities, despite presenting his passport, caused him serious concern, since he decided that he could be deported to Bosnia and Herzegovina, in which he had not resided for many years. The Committee further noted that although the authorities corrected their decision fairly quickly, the situation was serious enough to cause concern to the person concerned, especially since he had been told that he could be deported. Therefore, compensation should reflect the impact it could have had on the applicant. The Committee further took note of the applicant's argument that, according to a statement made by the Danish Prime Minister in 2013, 2,000 Danish kroner could only be purchased for a "pair of shoes" and that, according to the information available in the case, neither the judicial nor administrative authorities had taken any measures to punish the perpetrators or, in particular even more broadly, in order to prevent similar violations in the future, despite the fact that the authorities of the State party recognized that the applicant was the victim of an act of discrimination. Therefore, the Committee concluded that the compensation received by the applicant did not comply with article 6 of the Convention, as it was not fair and adequate and did not rehabilitate the applicant, given that no judicial or administrative sanctions were applied for the commission of a recognized act of racial discrimination (paragraph 7.9 of the Opinion).
In addition, the Committee noted that the amount of DKK 25,000 recovered from the applicant for court costs was significantly higher than the amount of DKK 2,000 that he received as compensation for an act of recognized racial discrimination. The Committee indicated that in its decision of December 18, 2014 The High Court did not explain the reasons why such high court costs were justified in the applicant's case, in particular, given that the court of first instance considered the following - court costs should be covered by public funds. The Committee noted that on December 7, 2011 The Department of Civil Affairs provided the applicant with legal assistance so that he could appeal the decision of the Equal Treatment Council. The Committee considered that this decision was clear evidence that the applicant was in a difficult financial situation and the recovery of a significant amount from him to cover legal costs during the trial constituted a sanction against a person who had been a victim of racial discrimination and who was simply seeking adequate compensation. The Committee concluded: such practices can be seen as a deterrent for victims of racial discrimination to challenge the amount of compensation they consider insufficient or ineffective, which may result in denial of access to justice in cases of racial discrimination (paragraph 7.10 of the Opinion).
The Committee's conclusions: The facts presented indicate a violation by the State party of articles 5 (d) (iii) and 6 of the Convention (paragraph 8 of the Opinion).