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The Committee on the Elimination of Racial Discrimination, established under
article 8 of the International Convention on the Elimination of All Forms of
Racial Discrimination,
Meeting on 17 March 1999,
Having concluded its consideration of communication No. 10/1997, submitted
to the Committee under article 14 of the International Convention on the
Elimination of All Forms of Racial Discrimination,
Having taken into consideration all written information made available to it
by the author and the State party,
Bearing in mind rule 95 of its rules of procedure requiring it to formulate
its opinion on the communication before it,
Adopts the following:
Opinion
1. The author of the communication is Ziad Ben Ahmed Habassi, a Tunisian
citizen born in 1972 currently residing in �rhus, Denmark. He claims to be a
victim of violation by Denmark of article 2, paragraph 1 (d), and article 6
of the International Convention on the Elimination of All Forms of Racial
Discrimination. He is represented by counsel.
The Facts as Presented by the Author
2.1 On 17 May 1996 the author visited the shop "Scandinavian Car Styling" to
purchase an alarm set for his car. When he inquired about procedures for
obtaining a loan he was informed that "Scandinavian Car Styling" cooperated
with Sparbank Vest, a local bank, and was given a loan application form
which he completed and returned immediately to the shop. The application
form included, inter alia, a standard provision according to which the
person applying for the loan declared himself or herself to be a Danish
citizen. The author, who had a permanent residence permit in Denmark and was
married to a Danish citizen, signed the form in spite of this provision.
2.2 Subsequently, Sparbank Vest informed the author that it would approve
the loan only if he could produce a Danish passport or if his wife was
indicated as applicant. The author was also informed that it was the general
policy of the bank not to approve loans to nonnDanish citizens.
2.3 The author contacted the Documentary and Advisory Center for Racial
Discrimination (DRC) in Copenhagen, an independent institution which had
been in contact with Sparbank Vest on previous occasions about the bank's
loan policy visn�nvis foreigners. In a letter dated 10 January 1996 the DRC
had requested Sparbank Vest to indicate the reasons for a loan policy
requiring applicants to declare that they were Danish citizens. Sparbank
Vest had informed the DRC, by letter of 3 March 1996, that the requirement
of citizenship mentioned in the application form was to be understood merely
as a requirement of permanent residence in Denmark. Later, the DRC requested
information from the bank about the number of foreigners who had actually
obtained loans. On 9 April 1996 Sparbank Vest informed the DRC that the bank
did not register whether a customer was a Danish citizen or not and
therefore it was not in a position to provide the information requested. It
also said that in cases of foreign applicants the bank made an evaluation
taking into account whether the connection to Denmark had a temporary
character. In the bank's experience, only by a permanent and stable
connection to the country was it possible to provide the necessary service
and ensure stable communication with the customer.
2.4 On 23 May 1996 the DRC reported the incident concerning the author to
the police department in Skive on behalf of the author, alleging that the
bank had violated the Danish Act on the prohibition of differential
treatment on the basis of race. The DRC enclosed copies of its previous
correspondence with Sparbank Vest. By letter dated 12 August 1996 the police
informed the DRC that the investigation had been discontinued given the lack
of evidence that an unlawful act had been committed. The letter indicated
that the requirement of Danish citizenship had to be considered in
connection with the possibility of enforcement and that the bank had given
assurances that the provision would be deleted when printing new application
forms.
2.5 On 21 August 1996 the DRC lodged a complaint with the State Prosecutor
in Viborg, challenging the decision of the police department to consider the
citizenship criterion legitimate. The author had a clear permanent
connection to Denmark in view of the fact that he was married to a Danish
citizen and had a regular job. The fact that the bank still insisted on
documentation with regard to Danish citizenship constituted a discriminatory
act which could not be justified by the bank's interest in enforcing its
claim. The DRC also emphasized the fact that Sparbank Vest had not provided
any information regarding foreign customers, despite the fact that such
information was relevant to determine whether or not the loan policy was
discriminatory. By letter dated 6 November 1996 the State Prosecutor
informed the DRC that he did not see any reason to overrule the police
decision.
2.6 The author indicates that the decision of the State Prosecutor is final,
in accordance with section 101 of the Danish Administration of Justice Act.
He also states that questions relating to brining charges against
individuals are entirely at the discretion of the police and, therefore, the
author has no possibility of bringing the case before a court.
The Complaint
3.1 Counsel claims that the facts stated above amount to violations of
article 2, paragraph 1 (d), and article 6 of the Convention, according to
which alleged cases of discrimination have to be investigated thoroughly by
the national authorities. In the present case neither the police department
of Skive nor the State Prosecutor examined whether the bank's loan policy
constituted indirect discrimination on the basis of national origin and
race. In particular, they should have examined the following issues: first,
to what extent persons applying for loans were requested to show their
passports; second, to what extent Sparbank Vest granted loans to nonnDanish
citizens; third, to what extent Sparbank Vest granted loans to Danish
citizens living abroad.
3.2 Counsel further claims that in cases such as the one under consideration
there might be a reasonable justification for permanent residence. However,
if loans were actually granted to Danish citizens who did not have their
permanent residence in Denmark, the criterion of citizenship would in fact
constitute racial discrimination, in accordance with article 1, subparagraph
1, of the Convention. It would be especially relevant for the police to
investigate whether an intentional or an unintentional act of discrimination
in violation of the Convention had taken place.
State Party's Submission on Admissibility and Counsel's Comments
4.1 In a submission dated 28 April 1998 the State party notes that according
to section 1 (1) of Act No. 626 (Act against Discrimination) any person who,
while performing occupational or nonprofit activities, refuses to serve a
person on the same conditions as others due to that person's race, colour,
national or ethnic origin, religion or sexual orientation is liable to a
fine or imprisonment. Violation of the Act is subject to public prosecution,
i.e. private individuals cannot bring a case before the courts.
4.2 If the prosecutor considers that no offence has been committed, or that
it will not be possible to bring evidence sufficient for conviction and,
therefore, discontinues the investigation, the injured party still has the
possibility of bringing a civil action claiming compensation for pecuniary
or nonnpecuniary damage. An action claiming compensation for pecuniary
damage is not relevant in the present case, since the loan was actually
granted with the applicant's wife listed as borrower and the applicant as
spouse. It would, however, have been relevant to bring a civil declaratory
action against the bank claiming that it acted against the law when it
refused the loan application. Such action is recognized in domestic casenlaw.
Accordingly, the State party considers that a civil action is a possible
remedy which the applicant should have made use of and that the nonnuse of
this remedy renders the case inadmissible.
4.3 The State party also argues that the author had the possibility of
complaining to the Ombudsman of the Danish Parliament about the decision of
the prosecutor. The fact that the prosecutors are part of the public
administration means that their activities are subject to the Ombudsman's
power to investigate whether they pursue unlawful aims, whether they make
arbitrary or unreasonable decisions or whether they commit errors or
omissions in other ways in the performance of their duties. The result of a
complaint to the Ombudsman may be that the police and the prosecutor reopen
the investigation.
4.4 The State party also argues that the communication is manifestly
illnfounded. Its objections, however, are explained in its assessment of the
merits of the case.
5.1 Counsel contends that the State party fails to indicate on which
provision of the Danish Act on Tort it bases its claim that civil action can
be taken against Sparbank Vest. He assumes that the State party refers to
section 26 of the Act. However, to his knowledge, no cases relating to
racial discrimination have ever been decided by Danish courts on the basis
of that section. Accordingly, there is no evidence in Danish case-law to
support the interpretation given by the State party.
5.2 Counsel also contends that a private party may only be liable under
section 26 if there is an act which infringes national law. In the present
case, however, the relevant bodies within the prosecution system did not
find any reason to investigate; it would, therefore, have been very
difficult to convince a court that there was any basis for liability on the
part of Sparbank Vest. In those circumstances a theoretical remedy based on
section 26 of the Danish Act on Tort does not seem to be an effective remedy
within the meaning of the Convention.
5.3 With respect to the possibility of filing a complaint with the
Ombudsman, counsel argues that such remedy is irrelevant, since the
Ombudsman's decisions are not legally binding.
The Committee's Admissibility Decision
6.1 During its fiftynthird session in August 1998 the Committee examined the
admissibility of the communication. It duly considered the State party's
contention that the author had failed to exhaust domestic remedies but
concluded that the civil remedies proposed by the State party could not be
considered an adequate avenue of redress. The complaint which was filed
first with the police department and subsequently with the State Prosecutor
alleged the commission of a criminal offence and sought a conviction under
the Danish Act against Discrimination. The same objective could not be
achieved by instituting a civil action, which would lead only to
compensation for damages.
6.2 At the same time the Committee was not convinced that a civil action
would have any prospect of success, given that the State Prosecutor had not
considered it pertinent to initiate criminal proceedings regarding the
applicant's claim. Nor was there much evidence in the information brought to
the attention of the Committee that a complaint before the Ombudsman would
result in the case being reopened. Any decision to institute criminal
proceedings would still be subject to the discretion of the State
Prosecutor. No possibilities would then be left for the complainant to file
a case before a court.
6.3 Accordingly, on 17 August 1998, the Committee declared the communication
admissible.
The State Party's Observations on the Merits
7.1 The State party submits that Mr. Habassi complained to the police on 28
May 1996. On 12 August 1996 the police interviewed the credit manager of
Sparbank Vest in Skive, who was notified of Mr. Habassi's complaint.
According to the police report the manager stated that all loan applicants
signed the same type of application form and that the Danish Bankers
Association had decided that the phrase "that I am a Danish national" would
be deleted when the application forms were reprinted. No further
investigative steps were taken. By letter dated 12 August 1996 the Chief
Constable in Skive informed the DRC that it had decided to discontinue the
investigation, since it could not reasonably be assumed that a criminal
offence subject to public prosecution had been committed. The letter also
provided details on the possibility of filing an action for damages and
enclosed guidelines on how to file a complaint. By letter of the same date
the Chief Constable also informed Sparbank Vest that the investigation had
been discontinued.
7.2 The State party recalls that on 21 August 1996 the DRC complained about
the Chief Constable's decision to the District Public Prosecutor in Viborg.
DRC stated in its complaint that it found it worrying that the Chief
Constable apparently considered the requirement of nationality motivated by
the need to ensure enforcement to be a lawful criterion. Mr. Habassi had a
Danish civil registration number and a national register address in Denmark.
That in itself ought to have been sufficient to prove his ties with Denmark.
In addition, he stated on the loan application that he received a salary and
had a Danish spouse. The bank's practice of demanding documentation about
nationality was a discriminatory act which could not be justified by
considerations of enforcement.
7.3 DRC also stated that for Mr. Habassi it was immaterial whether the
refusal of the bank was based on negative attitudes towards ethnic
minorities (for instance that they are poor debtors) or on genuine concern
on the part of the bank about enforcement. The salient fact was that despite
having satisfied all the conditions for being granted a loan, he was
required (probably because of his foreignnsounding name) to provide further
documentation. It was therefore Mr. Habassi's Middle East background that
was the cause of the refusal and not the more formal criterion of
nationality. The bank's statement that the requirement of Danish nationality
would be removed from the application forms did not alter the fact that Mr.
Habassi had been exposed to unlawful differential treatment against which
the Danish authorities had a duty to offer protection pursuant to the
Convention.
7.4 The State party also recalls that the District Public Prosecutor found
no basis for reversing the Chief Constable's decision and argued, in
particular, that neither the Act against Discrimination nor the Convention
include nationality as an independent ground of discrimination. Against this
background it must be assumed that discrimination against foreign nationals
only violates the Act to the extent that it could be assimilated to
discrimination on the basis of national origin or one of the other grounds
listed in section 1 (1). According to the legislative history of the Act, it
had to be presumed that certain forms of differential treatment could be
considered lawful if they pursued a legitimate aim seen in the light of the
purpose of the Act. In the processing of loan applications the applicant's
ties with Denmark may be of importance, among other things, for assessing
the possibility of enforcement of the creditor's claim. In consideration of
this the data concerning the applicant's nationality were objectively
justified.
7.5 The State party argues that the police investigation in the present case
satisfies the requirement that can be inferred from the Convention and the
Committee's practice. According to the Administration of Justice Act the
police initiates an investigation when it can be reasonably assumed that a
criminal offence subject to public prosecution has been committed. The
purpose of the investigation is to clarify whether the conditions for
imposing criminal liability or other criminal sanctions have been fulfilled.
The police will reject an information laid if no basis is found for
initiating an investigation. If there is no basis for continuing an
investigation already initiated, the decision to discontinue it can also be
made by the police, provided no provisional charge has been made.
7.6 In the State party's opinion, there is no basis for criticizing the
Chief Constable's and the District Public Prosecutor's decisions, which were
taken after an investigation had actually been carried out. The police took
the information seriously and its decision was not unsubstantiated. The
decision was not only based on the information forwarded by the author,
including the written correspondence with the bank about its credit policy,
but also on interviews with the author and a credit manager of the bank.
7.7 The State party refers to the Committee's opinion regarding
communication 4/1991 in which the Committee stated that Awhen threats of
racial violence are made and especially when they are made in public and by
a group, it is incumbent upon the State to investigate with due diligence
and expedition (1) It argues, however, that the present case is of a
different nature and therefore the Committee cannot reasonably set out the
same requirements to investigate as in the said opinion. Even if the
requirement that it is incumbent on the police to Ainvestigate with due
diligence and expedition were to apply in the present case, where the loan
application was actually granted, the State party considers that the
requirement was met. Although the information laid did not lead to
prosecution, the handling of it by the police did afford the applicant
effective protection and remedies within the meaning of article 2, paragraph
1 (d), and article 6 of the Convention.
7.8 The State party further contends that there is no basis either for
criticizing the legal assessment made by the prosecutor. It is noted in this
connection that not every differentiation of treatment is unlawful
discrimination within the meaning of the Convention. In General
Recommendation XIV on article 1, paragraph 1, of the Convention the
Committee stated that "a differentiation of treatment will not constitute
discrimination if the criteria for such differentiation, judged against the
objectives and purposes of the Convention, are legitimate (...). In
considering the criteria that may have been employed, the Committee will
acknowledge that particular actions may have varied purposes. In seeking to
determine whether an action has an effect contrary to the Convention it will
look to see whether that action has an unjustifiable disparate impact upon a
group distinguished by race, colour, descent or national or ethnic origin."
The decisions of both the Chief Constable and the District Public Prosecutor
show that the decisions were based on the fact that differentiation of
treatment that pursues a legitimate aim and respects the requirement of
proportionality is not prohibited discrimination.
7.9 Finally, the State party dismisses the author's claims that questions
relating to the pursuance by the police of charges against individuals are
entirely up to the discretion of the police and that there is no possibility
of bringing the case before the Danish courts. Firstly, it is possible to
complain to the relevant District Public Prosecutor; secondly, the applicant
had the possibility of filing a civil action against the bank; and thirdly,
the applicant had the possibility of complaining to the Ombudsman. The
effect of such complaint to the Ombudsman may be that the police and the
prosecutor reopen the investigation.
Counsel's Comments
8.1 Counsel contends that the police interviewed the author but had only a
brief telephone conversation with the bank. No detailed investigation, for
example about the requirements concerning Danish citizens living abroad, was
carried out. The police did not at all examine whether the case amounted to
indirect discrimination within the meaning of the Convention. The Committee,
however, stressed the duty of States parties to duly investigate reported
incidents of racial discrimination in its concluding observations regarding
communication 4/1991.
8.2 The State party states that the requirement of Danish citizenship was
only to be seen in connection with the assessment of the ties with Denmark
of the person applying for a loan in correlation, therefore, with the
possibilities of subsequent judicial recovery of the amount of the loan in
case of default. Counsel underlines that such reason was not mentioned by
the credit manager of Sparbank Vest, as reflected in the police report. The
report says that the police assistant E.P. had contacted the credit director
of Sparbank Vest who was of the opinion that the bank had not done anything
illegal in connection with the loan application in question, since all
applicants signed the same type of application form with the formulation
Athat I am a Danish citizen. The bank did not mention any particular reason
for its practice. It did not, in particular, declare that there was a
requirement of residence due to the possibility of enforcing claims against
debtors. It appears, therefore, that the reason in question had been made up
by the police in Skive on their own initiative. Even if the reason came from
the bank itself it appears to be highly irrelevant for an evaluation of
whether the requirements of the Convention have been met.
8.3 It is clear that Danish citizenship is not a guarantee for subsequent
judicial recovery of the defaulted amount if the Danish citizen lives, for
example, in Tunisia. The application of a criterion of citizenship for the
reason given by the police would indeed be a serious indication that
indirect discrimination on grounds prohibited by the Convention had taken
place. The possibilities of subsequent judicial recovery would rather
justify a criterion of residence. However, with respect to such criterion
counsel draws the attention of the Committee to a letter of 6 April 1995
addressed to the DRC in which the Minister of Business Affairs (Erhvervsministeren)
expresses the view that a credit policy according to which no credit is
granted to persons unless they have lived in Denmark for at least five years
would be contrary to the discrimination rules. It is the author's conclusion
that the police did not at all attempt to clarify with the bank the real
reason behind the requirement of citizenship.
8.4 Counsel states that, according to the State party, the decisions of the
Chief Constable and the State Prosecutor were based on the fact that
differentiation of treatment that pursues a legitimate aim and respects the
requirements of proportionality is not prohibited discrimination. He argues,
however, that the authorities did not in fact examine whether a legitimate
aim was pursued by the bank and that in cases of alleged discrimination the
decision whether or not to initiate proceedings must be taken after a
thorough investigation of the alleged cases of discrimination.
Examination of the Merits
9.1 The Committee has considered the author's case in the light of all the
submissions and documentary evidence produced by the parties, as required
under article 14, paragraph 7 (a), of the Convention and rule 95 of its
rules of procedure. It bases its findings on the following considerations.
9.2 Financial means are often needed to facilitate integration in society.
To have access to the credit market and be allowed to apply for a financial
loan on the same conditions as those which are valid for the majority in the
society is, therefore, an important issue.
9.3 In the present case the author was refused a loan by a Danish bank on
the sole ground of his nonnDanish nationality and was told that the
nationality requirement was motivated by the need to ensure that the loan
was repaid. In the opinion of the Committee, however, nationality is not the
most appropriate requisite when investigating a person's will or capacity to
reimburse a loan. The applicant's permanent residence or the place where his
employment, property or family ties are to be found may be more relevant in
this context. A citizen may move abroad or have all his property in another
country and thus evade all attempts to enforce a claim of repayment.
Accordingly, the Committee finds that, on the basis of article 2, paragraph
(d), of the Convention, it is appropriate to initiate a proper investigation
into the real reasons behind the bank's loan policy visn�nvis foreign
residents, in order to ascertain whether or not criteria involving racial
discrimination, within the meaning of article 1 of the Convention, are being
applied.
9.4 The Committee notes that the author, considering the incident an offence
under the Danish Act against Discrimination, reported it to the police.
First the police and subsequently the State Prosecutor in Viborg accepted
the explanations provided by a representative of the bank and decided not to
investigate the case further. In the Committee's opinion, however, the steps
taken by the police and the State Prosecutor were insufficient to determine
whether or not an act of racial discrimination had taken place.
10. In the circumstances, the Committee is of the view that the author was
denied effective remedy within the meaning of article 6 of the Convention in
connection with article 2 (d).
11.1 The Committee recommends that the State party take measures to
counteract racial discrimination in the loan market.
11.2 The Committee further recommends that the State party provide the
applicant with reparation or satisfaction commensurate with any damage he
has suffered.
12. Pursuant to rule 95, paragraph 5, of its rules of procedure, the
Committee would wish to receive information, as appropriate and in due
course, on any relevant measures taken by the State party with respect to
the recommendations set out in paragraphs 11.1 and 11.2.
[Done in English, French, Russian and Spanish, the English text being the
original version.]
Notes
1. // L.K. v. The Netherlands, CERD/C/42/D/4/1991, para. 6.6.
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