The case of S.A. v. Denmark. The opinion of the Committee dated December 13, 2018. Message No. 58/2016 <22>.
In 2016, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Denmark.
The Committee concluded that the compensation received by the applicant did not comply with article 6 of the Convention on the Elimination of All Forms of Racial Discrimination, 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 an act of racial discrimination recognized by the State party to the Convention. The Committee considered that the applicant was in a difficult financial situation, and that the court's 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 was simply seeking adequate compensation. The Committee concluded: this practice can be considered as a deterrent for victims of racial discrimination in terms of challenging the amount of compensation that they consider insufficient or ineffective, this may result in denial of access to justice in cases of racial discrimination.
As follows from the text of the Opinion, the applicant claimed that he was a victim of a violation by Denmark of articles 2, 5 and 6 of the Convention. He noted that, considering him to be a non-Danish national, 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 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 Municipality of O., he had to take antidepressants and could no longer work.
The Committee's legal position: In accordance with the Committee's practice, the victim's claim for compensation should be considered in all cases, including situations 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 Convention, States parties shall ensure to everyone 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 that infringe, in violation of the 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 recalls that, in accordance with UN General Assembly resolution 60/147, which refers to article 6 of the Convention, full and effective reparation 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 who are responsible for violations; Satisfaction should include measures such as a public apology, including recognition of facts and responsibility, or an official statement or judicial 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 violations or allowing them (paragraph 7.8 of the Opinion).
We are talking about UN General Assembly Resolution No. 60/147 "Basic Principles and Guidelines on the Right to legal Protection and reparation for Victims of Gross Violations of International Human Rights Norms and Serious Violations of international Humanitarian Law."
The Committee's assessment of the factual circumstances: It 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. The Committee 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 O. in order to receive social assistance. The Committee took note of the municipality's decision of July 22, 2009, in which it rejected S.A.'s request and ordered him to contact the Immigration Service. He also noted that on 23 July 2009 the municipality had changed the previous decision and indicated that the applicant, being a Danish national, 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 national, despite the Center's decision on 4 August 2009 to admit that he was indeed He was a Danish citizen. In this regard, the Committee took into account: 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 mistake made by the Municipality of O. on July 22, 2009 affected all rights of S.A. as a citizen of the Kingdom of Denmark, including the 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 O., and this was confirmed by the conclusions 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 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 taken 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 Municipality of Dated 22 July and 4 August 2009, denying that the applicant has Danish citizenship, amount to a violation of his rights under article 5 of the Convention (paragraph 7.3 of the Opinion).
With regard to the applicant'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 applicant'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 other State authorities institutions.
The Committee took note of the State party's argument that, when drafting the Equal Treatment Act of the Kingdom of Denmark, 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, 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, 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, consequently, the Equal Treatment Council had decided that the amount of compensation should be DKK 2,000. This decision was upheld by the District Court in Denmark 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 Committee's Convention, since it was impossible to conclude from either article 6 of the Convention or General Recommendation No. 26 that there was a requirement for a specific amount of compensation (para. 7.5 Opinions).
The Committee also took note of the complainant's claim that the amount of compensation was very far from 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, which cost the cost of living in the State party was very high and this amount is sharply different from the amount that he had to pay to cover legal costs, namely - 25,000 Danish crowns, which he regards as a "punishment". The Committee further noted the complainant'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 District Court of O., stating that the compensation paid to him in the amount of DKK 2,000 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 the Article 6 of the Convention, as this amount was too small. The Committee further noted that on May 6, 2013, the District Court upheld the decision of the Equal Treatment Council, considering that the municipality corrected its mistake as soon as possible and apologized for it, therefore there were no grounds for increasing the amount of compensation. 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: the civil servant who made the mistake did not act intentionally or through gross negligence, 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 that compensation had been provided to the applicant. 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, it was necessary to analyze the compensation provided, 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 complainant'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, where he had not resided for many years. The Committee further noted: Although the authorities corrected their decision fairly quickly, this situation was serious enough to cause concern to the person concerned, especially given that he was told he could be deported. Therefore, compensation should reflect the impact it could have had on the applicant. The Committee took note of the applicant's argument that, according to a statement made by the Danish Prime Minister in 2013, only a "pair of shoes" could be purchased for 2000 Danish crowns 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, more specifically, 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. The Committee therefore 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 the 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 pointed out that in its decision of 18 December 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 that court costs should be covered by public funds. The Committee noted that on 7 December 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 stressed 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 was simply seeking adequate compensation. The Committee concluded that such practices could be seen as a deterrent for victims of racial discrimination to challenge the amount of compensation they consider insufficient or ineffective, which could 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 indicated a violation of articles 5 and 6 of the Convention (paragraph 8 of the Opinion).