State responsibility to investigate possible racist nature of criminal acts

Dawas v Denmark, UN Doc CERD/C/80/D/46/2009 (2 April 2012) Summary

The UN Committee on the Elimination of Racial Discrimination was asked to consider whether the Applicants’ rights under articles 2 (prevention of racial discrimination) and 6 (effective preventions and remedies) of the Convention on the Elimination of All Forms of Racial Discrimination had been breached by Denmark’s failure to investigate the racist character of an attack on the Applicants and to prosecute the attackers on the basis that their alleged crimes had a racist character. The Committee held that various deficiencies in Denmark’s investigation of the attack and its prosecution of the attackers gave rise to contraventions of articles 2 and 6.

Facts

The Applicants, Mahali Dawas and his son Yousef Shava, as well as Mr Dawas’s wife and other seven children, are Iraqi citizens with refugee status in Denmark. In 2004, they were living together in a house in Sorø, Denmark.

On 21 June 2004, a group of 15 to 20 youths gathered in front of Mr Dawas’s house.  They acted aggressively, and alleged that the Applicants had stolen from them. During the altercation, tensions mounted and the number of youths swelled to 35. Ultimately, individual youths attacked the Applicants’ persons and property. They broke windows, forced their way into the house, threw a potted plant at Mr Dawas’s leg, punched Mr Shava in the face, and struck him in the arm with a bat. Others shouted “go home” and made other offensive statements. Shortly before the attack, an unknown person placed a sign near the house saying “no blacks allowed”. Immediately before the attack, one of the attackers telephoned a friend and asked them to join him, as he “had problems with some perkere” (a Danish pejorative term for a foreigner).

On 30 July 2004, four suspects were charged with joint violence under section 245(1) of the Danish Criminal Code, as well as with gaining unauthorised access to another person’s home under section 264(1). Two of the defendants were also charged with vandalism under section 291(1).

Towards the end of 2004, hearings took place in the District Court of Sorø. During proceedings, the prosecution requested that that Court hear the matter summarily based on the defendants’ guilty pleas. It also requested that the joint violence charge be reduced to a lesser assault charge under section 244 of the Code. The Court granted these requests.

On 26 January 2005, the suspects were convicted based on their guilty pleas. The Court sentenced each to a suspended jail term of 50 days. It did not consider the racist nature of the attacks, which, under section 81(1)(vi) of the Danish Criminal Code, could have been an aggravating circumstance, and did not award compensation to the Applicants.

Subsequently, on 23 May 2006, the Applicants instituted civil proceedings. They sought non-pecuniary damages for the physical and mental injuries they sustained as a result of the attack, and they cited the racist element of the crimes as an aggravating factor. On 11 September 2007, the District Court of Naestved rejected the Applicants’ claim. It found that there was no evidence establishing a racist character to the actions, and that the harm suffered by the Applicants was not sufficient to establish a tort. On 3 October 2008, the High Court of Eastern Denmark upheld the judgment of the District Court. Finally, on 12 December 2008, the Danish Supreme Court denied the Applicants leave to appeal.

Arguments and decision

On 16 June 2009, the Applicants petitioned the Committee. They alleged that Denmark violated their rights under articles 2 (prevention of racial discrimination) and 6 (effective preventions and remedies) of the Convention by failing to investigate the racist character of the attack, and by failing to provide an effective legal remedy for the pain and humiliation they suffered as a result of the attack. They also alleged that “the violent attack and the vandalism suffered, as well as the related racist motive and intent to have the family leave and take up residence in another municipality” were tantamount to violations of articles 3 (condemnation of apartheid) and 4 (prohibition of incitement).

Denmark argued that the Applicants failed to establish a prima facie case as there was no evidence that the attack was racially motivated. Therefore, it argued that the Applicants’ communication was inadmissible. The Committee agreed that the Applicants had failed to establish a prima facie case in relation to the alleged violations of article 3, as they had failed to substantiate their claim that the attackers’ intent to have them leave the municipality qualified as an act of segregation or apartheid. However, it found that they had established a prima facie case in relation to the other alleged violations.

In relation to the other alleged violations, the Committee observed that “the issue … is whether the State party fulfilled its positive obligation to investigate and prosecute the assault suffered by the [Applicants], having regard to its duty under article 2 of the Convention, to take effective action against reported incidents of discrimination”. It observed that, by hearing the matters summarily and downgrading the charges against the suspects, the District Court had set aside “the possibly racist nature of the attacks” during the investigation and had failed to adjudicate them at trial. It also observed that the attack on the Applicants was grave. Ultimately, the Committee concluded that “in circumstances as serious as those in this case … enough elements warranted a thorough investigation by public authorities into the possible racist nature of the attack … Instead, the possibility was set aside at the level of criminal investigation, thereby preventing the issue from being adjudicated at criminal trial”. The Committee commented that the onus was on the State party “to initiate an effective criminal investigation, instead of giving the petitioners the burden of proof in civil proceedings”.

This was not sufficient to found an independent breach of article 4. However, it was enough to establish breaches of articles 2 and 6. Ultimately, the Committee recommended that Denmark grant the Applicants compensation for the material and moral injuries caused by the attack.

Relevance to the Victorian Charter

Section 8(3) of the Victorian Charter gives every person “the right to equal and effective protection against discrimination”. As section 8(3) resembles article 2(1)(d) of the Convention, the Committee’s decision provides guidance as to how section 8(3) of the Charter should be interpreted.

The Committee’s decision establishes that, where circumstances suggest that an alleged crime may have a racist element, to comply with article 2(1)(d) of the Convention, a State must thoroughly investigate that possibly racist element, and, when appropriate, vigorously prosecute the suspect on the basis that the alleged crime has a racist element. In turn, the decision suggests that, to comply with section 8(3) of the Charter, Victorian authorities must seriously investigate and prosecute the possibly racist nature of criminal acts.

The decision can be found online at: http://www2.ohchr.org/english/bodies/cerd/docs/jurisprudence/CERD-C-80-D-46-2009_en.doc

Andrew Wilcock is a Lawyer on secondment to PILCH from Allens Arthur Robinson.