The case of Mahali Dawas and Youssef Shava v. Denmark. The opinion of the Committee dated March 6, 2012. Messages No. 46/2009.
In 2009, the author was assisted in preparing a complaint. Subsequently, the complaint was communicated to Denmark.
The Committee considered: Given the established circumstances of the incident, namely: the applicants were violently attacked in their own home by 35 offenders, some of whom were armed, there was sufficient evidence requiring a thorough investigation at the initiative of the State authorities of the fact of the attack on this family, due to a possible racist nature. Instead, this possibility was rejected during the criminal investigation process, as a result of which the issue was not even considered during the criminal trial. The facts presented indicated a violation of articles 2, paragraph 1, and 6 of the Convention on the Elimination of All Forms of Racial Discrimination.
As could be seen from the text of the Opinion, the applicants claimed that, in violation of the Convention on the Elimination of All Forms of Racial Discrimination, the State party had failed to investigate the racist nature of the attack committed against them and had not offered them effective legal protection in connection with the offenses committed, deprived them of the right to compensation for the suffering and humiliation suffered.
The Committee's legal position: in the presence of threats of violence, and especially when they are expressed publicly and in a group, the State party is responsible for conducting an investigation with due care and promptness (paragraph 7.4 of the Opinion).
The Committee's assessment of the factual circumstances of the case: it was necessary to consider whether the State party had fulfilled its positive obligation to ensure proper investigation and prosecution of the attack on the complainants on 21 June 2004, taking into account its obligations under article 2 of the Convention to take effective measures in response to reports of cases of racial discrimination. With regard to the case, the Committee noted that, following an investigation into the offence by the police, the Prosecutor's Office requested criminal proceedings against four suspects based on the defendants' plea statements and decided to reclassify the charges from a violation of article 245 (1) of the Danish Criminal Code, which criminalizes specific acts of particularly heinous, cruel or dangerous nature the nature and entailing a maximum penalty of six years in prison, in violation of article 244 of the Criminal Code, which provides for criminal liability for minor violent acts and a more lenient punishment - up to three years in prison. The defendants were eventually sentenced to 50 days in prison (suspended). The Committee found that during the criminal investigation, the possible racist nature of the crime was removed from the corpus delicti and was not considered during the trial. The Committee further noted: On September 11, 2007, the District Court of N. rejected the applicants' claim for non-pecuniary damage on the grounds that they failed to sufficiently substantiate the racist motivation of this attack or that it was otherwise specifically motivated by the applicants' race, nationality or ethnic origin (paragraph 7.2 of the Opinion).
The Committee pointed out that it was indisputable that 35 offenders had attacked the applicants' home on 21 June 2004 and that there had been repeated cases of racist insults against the applicants both during and before the attack. It was also not disputed that the police had reported the incident to the Danish Security and Intelligence Service in accordance with a Memorandum on Notification of criminal acts Potentially Racially or Religiously motivated. The Committee noted that the State party had not been able to provide any information on the consequences of such notification, in particular on the conduct of any investigation to determine whether the attack could be classified as incitement to racial discrimination or an act thereof (paragraph 7.3 of the Opinion).
The Committee considered that in such serious circumstances as those that took place in this case, when the applicants were violently attacked in their own home by 35 offenders, some of whom were armed, there were sufficient facts requiring a thorough investigation at the initiative of public authorities in connection with the possible racist nature of the attack on this a family. Instead, this possibility was rejected at the level of criminal investigation, as a result of which the issue was not even considered during the criminal trial. The Committee stressed that the State party has an obligation to initiate an effective criminal investigation instead of placing the burden of proof on the complainants in civil proceedings. This obligation to investigate with due care and promptness in the presence of threats of violence and especially when they are expressed publicly and by a group, a fortiori (especially in Latin).) applies in the circumstances of this case, when 35 people actually participated in the attack on the family (paragraph 7.4 of the Opinion).
The Committee's conclusions: the facts presented indicated a violation of articles 2, paragraph 1, and 6 of the Convention.