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U.N. Doc. CERD/C/59/D/19/2000 |
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Communication No. 19/2000 |
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10 August 2001 |
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COMMITTEE ON THE ELIMINATION OF RACIAL DISCRIMINATION |
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Fifty-ninth session |
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30 July - 17 August 2001 |
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Mostafa v. Denmark |
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Decision on Admissibility |
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1.
The petitioner (initial submission dated 12 April 2000) is Mr. Sarwar
Seliman Mostafa, an Iraqi citizen currently residing in Denmark, together
with his wife and daughter. He claims that his rights under article 6 of the
Convention have been violated by Denmark. He is represented by counsel. The Facts as Submitted by the Petitioner
2.1
The petitioner was registered as an applicant for renting an apartment with
the Danish housing company DAB (Dansk Almennyttigt Boligselskab). On 8 June
1998 the DAB informed him that an apartment was available and asked him
whether he would be interested in it. The petitioner confirmed that he was
interested. However, under the existing legislation the municipality of Hoje
Tastrup had to approve the contract. In a letter of 16 June 1998 the
municipality informed the petitioner that his application had not been
approved due to housing social criteria. 2.2
In a letter of 22 June 1998, the petitioner asked the municipality to
reconsider its decision. He stated that he had a good job as an engineer and
also worked as an interpreter; his wife, who was also an engineer, was
training as a kindergarten employee and they both spoke Danish; their
daughter attended a Danish kindergarten. 2.3
In a letter dated 3 July 1998 the municipality informed the petitioner that
the case would not be reopened and that his complaint had been forwarded to
the Social Appeals Board (Det Sociale Ankenaevn). 2.4
On 8 July 1998, the petitioner contacted the non-governmental organization
Documentary and Advisory Centre on Racial Discrimination (DRC). The
petitioner informed the staff of the centre that when he contacted the
municipality on 1 July 1998 and explained that he would submit a letter from
the doctor's family supporting his application in view of the fact that his
daughter suffered from asthma, the municipality officer replied that even if
he sent the letter, his application would be rejected. 2.5
The petitioner reported the case to the police of Glostrup, which in a
decision of 24 November 1998 refused to investigate the matter under the
Danish Act on Racial Discrimination. In a decision of 29 April 1999 the
State Attorney for Sealand concluded that there was no reason for changing
the decision of the police. The petitioner also brought the case before the
Parliamentary Ombudsman who, in a decision of 4 November 1998, indicated
that the petitioner should wait for the decision of the Social Appeals
Board. 2.6
In a letter dated 1 October 1998 the Social Appeals Board informed the
petitioner that the Municipality of Hoje Tastrup had decided to change its
previous decision rejecting the petitioner's application. Later on, on 12
October 1999, the Ministry of Housing and Urban Affairs informed the DRC
that the family was invited to contact the municipality. 2.7
In a letter of 27 November 1999 the Social Appeals Board informed the DRC
that the apartment to which Sarwar Seliman Mostafa was to be approved had
been assigned to another person, therefore it would be impossible to give
Sarwar Seliman Mostafa full satisfaction in his request as neither the
Appeals Board nor the Municipality had legal authority to cancel a rental
agreement made by the housing company. Furthermore, on 26 January 2000 the
housing company informed the DRC that the applicable legislation did not
make it possible for the company to change the decision which had been
annulled by the Social Appeals Board. 2.8
The Social Appeals Board adopted its final decision on the matter on 15
March 2000. It concluded that the municipality's decision of 16 June 1998
was invalid, as Sarwar Seliman Mostafa did fulfil the conditions for
approval to the housing facility. The Complaint 3.
Counsel claims that the State party has breached its obligations
under article 6 of the Convention. He states that, despite the decision of
the Social Appeals Board, the petitioner has still not been provided with an
appropriate apartment and that the Danish legislation does not provide for
adequate satisfaction in cases like the one under consideration. Since
neither the police of Glostrup nor the State Attorney were willing to
interfere in the case, there is no possibility for the petitioner to make
use of any further remedies at the national level. Observations by the State Party 4.1
By a submission of 13 December 2000, the State party challenges the
admissibility of the communication. It recalls that on 1 September 1998 the
municipality had decided to alter its decision of 16 June 1998 and informed
the Social Appeals Board that it had decided to approve the petitioner for
the dwelling applied for or a corresponding one. As a result the Board
considered that the appeal had become moot and, on 1 October 1998, notified
the petitioner accordingly. However, in the light of, inter alia, a request
from the Parliamentary Ombudsman, the Board decided subsequently to consider
the appeal concerning the decision of 16 June 1998. In its decision of 15
March 2000 the Board found that the decision of 16 June 1998 was invalid,
although it had been modified by the decision of 1 September 1998. 4.2
The State party further recalls that in a letter of 12 October 1999
addressed to the DRC, the Ministry of Housing and Urban Affairs stated that
Hoje-Taastrup local authority's administration of the rules on approval of
tenants for non-profit housing in general was contrary to the rules in
force, as the local authority used unlawful criteria such as whether the
tenant was a refugee or an immigrant. She indicated that, in the future, she
would be very alert to the manner in which local authorities administered
the approval scheme and continue her efforts to ensure that the local
authorities do not violate national or international law regarding racial
discrimination. 4.3
Having acknowledged that the decision of 16 June 1998 was unlawful according
to Danish law, the State party examines the consequences of such
acknowledgment, in light of the petitioner's claims under article 6 of the
Convention. The State party understands those claims to mean that, as a
result of the wrongful act and on the basis of article 6 of the Convention,
the petitioner should (a) have had the apartment which he had been
wrongfully refused; or (b) have had a similar dwelling assigned to him; or
(c) have received financial compensation. 4.4
Options (a) and (b) are not possible. A non-profit housing organisation such
as the DAB is not part of the local authority, but an independent legal
entity whose activities are governed by specific rules. When a local
authority refuses to approve a person as a tenant, the non-profit housing
organisation will offer the apartment in question to another person on the
waiting list. This means that the apartment will not be vacant when it is
subsequently established that the local authority's refusal to approve the
applicant was wrongful. Article 6 of the Convention cannot be interpreted to
mean that the Convention would require specific performance in such a
situation. 4.5
The State party interprets article 6 as having two parts. The first one
concerns the provision of 'effective protection and remedies' and the second
one the provision of 'adequate reparation or satisfaction'. The first part
imposes on the States parties a positive obligation to introduce remedies
that are available, adequate and effective and that: (i) protect the
citizens against acts of racial discrimination contrary to the Convention;
(ii) make it possible for the citizens to have established whether they have
been subjected to racial discrimination contrary to the Convention; and
(iii) make it possible for the citizens to have the acts of racial
discrimination brought to an end. The State party considers that this part
of article 6 is not relevant for assessing whether the applicant is entitled
to specific performance. 4.6
The second part applies to situations where a person has been subjected to
racial discrimination. In such cases the States parties must ensure that the
victim has access to 'adequate reparation or satisfaction'. That means that
the act or omission constituting racial discrimination is brought to an end
and that the consequences for the victim are remedied in such manner that
the state of affairs prior to the violation is restored to the widest extent
possible. There will always be cases in which it is not possible to restore
the situation prior to a violation. This may be due to the fact, for
example, that the racially discriminatory act or omission is delimited in
time and place and therefore cannot be reversed (such as a racist
statement), or that the interests of innocent third parties should also be
protected. In such cases one has to determine whether there have been
attempts to remedy the consequences for the victim of the racially
discriminatory act or omission. 4.7
The present case is one of those where it is impossible to restore the
situation prior to the violation. The apartment for which the petitioner was
wrongfully refused approval as a tenant has been let to a third party and
regard for the interests of such party is a crucial argument against
subsequently calling into question the legal relationship between that party
and the non-profit housing organisation. To the extent that the petitioner
claims that on the basis of article 6 he is entitled to specific
performance, the State party finds that the communication should be declared
inadmissible on the ground that no prima facie case of violation of the
Convention has been established in respect of this part of the
communication. 4.8
Furthermore, neither the Social Appeals Board nor any other authority have
the possibility of assigning another dwelling to a person whom a local
authority has wrongfully refused to approve as a tenant of a non-profit
dwelling. Apart from cases where a local authority can assign a non-profit
dwelling for the purpose of solving urgent social problems, it is the
non-profit housing organisation itself who allocates vacant dwellings to
applicants. In practice, the person in question will remain on the waiting
list and will have an apartment offered when one becomes vacant, whereupon
the local authority will approve the person, unless new circumstances have
arisen as a result of which the person no longer satisfies the conditions
for approval. In this case, however, the petitioner had chosen to have his
name removed from the waiting list of the DAB in Hoje-Taastrup. 4.9
Regardless of the wrongful conduct of the Hoje-Taastrup municipality, it was
the petitioner's own choice not to remain on the list, as a result of which
it became impossible for the DAB to offer him another dwelling. To the
extent that the petitioner claims that as a consequence of article 6 of the
Convention he should have been offered another and corresponding dwelling
without otherwise satisfying the general conditions for obtaining one,
including being on the waiting list, the communication should be declared
inadmissible, as no prima facie case of violation of the Convention has been
established in respect of this part of the communication. 4.10 As for the
question of damages, the State party argues that the issue has not been
brought before the Danish courts and, therefore, the petitioner has failed
to exhaust domestic remedies. For this purpose it is irrelevant that the
police and the public prosecutor rejected the petitioner's claims. 4.11 The local
authority's refusal to approve the petitioner as a tenant raised two
different issues: First, whether the refusal constituted a criminal offence
and second whether the refusal was otherwise wrongful, including whether the
local authority had used unlawful criteria such as the petitioner's race,
colour, descent or national or ethnic origin. The police and the public
prosecutor only had to assess the first issue, while the second one was
assessed by other authorities, including the Social Appeals Board. 4.12 The State
party claims that the decisions of the police and the public prosecutor were
decisive in the context of the criminal proceedings, but did not in any way
preclude the petitioner from instituting civil proceedings. In connection
with such proceedings the petitioner would have been able to refer, inter
alia, to the decision of the Social Appeals Board and the opinion of the
Ministry of Housing and Urban Affairs. If the petitioner believes that he
has suffered a pecuniary or non-pecuniary loss, the institution of civil
proceedings will be an effective remedy. Damages do not depend, directly or
indirectly, on the outcome of criminal proceedings. 4.13 It follows
from the general rules of Danish law on damages in tort that administrative
authorities may incur liability in damages for actionable acts and
omissions. It is therefore possible to claim damages for losses suffered by
a person because of an invalid administrative decision. Cases in dispute are
dealt with by ordinary courts in connection with civil proceedings against
the administrative authority in question. Counsel's Comments 5.1
Counsel argues that the fact that neither the Social Appeals Board nor any
other authority have the possibility to assign another appropriate dwelling
to a person who has wrongfully been refused approval as a tenant of a
non-profit dwelling only demonstrates the failure of Danish legislation to
provide effective reparation in a case like the one under consideration. 5.2
Counsel refers to the State party's statement in paragraph 4.8 above that
the person in question would remain on the waiting list and have an
apartment offered when one becomes vacant. He claims that the petitioner was
not aware of that practice and that the letter of 1 September 1998 from the
Municipality of Hoje-Taastrup to the Social Appeals Board was never sent to
the petitioner or the DRC. 5.3
Counsel disagrees with the State party's statement that it was possible for
the petitioner to claim damages for losses suffered or for tort and says
that Danish courts have refused to apply rules on damages in tort in cases
of discrimination. The fact that a person has been subjected to
discrimination does not automatically entitle that person to damages in
tort. In this respect he provides copy of a decision of 4 August 2000
concerning a case in which discrimination was established where the
Copenhagen City Court did not find that the act of discrimination entitled
the victims to damages in tort. Counsel reiterates that all domestic
remedies have been exhausted. 5.4
Counsel further submits that the Convention is not incorporated into
domestic law and expresses doubts as to whether the Danish courts would
apply the Convention in a dispute between private parties.
Additional Information by the State Party
6.1
In response to a request by the Committee to furnish additional information
on effective remedies available to the author for the implementation of the
decision of the Social Appeals Board dated 15 March 2000, or for receiving
compensation, the State party, by note of 6 July 2001, affirms that the
institution of a civil action against the Hoje-Taastrup local authority for
compensation for pecuniary or non-pecuniary damage is an available and
effective remedy. The author had the possibility of instituting an action
before the ordinary courts based on the Hoje-Taastrup local authority's
decision of 16 June 1998 and invoking the Convention on the Elimination of
All Forms of Racial Discrimination. In this connection the State party
refers to the practical effect of the Committee's recommendation in a prior
case No. 17/1999 Babak Jebelli v. Denmark, which illustrates that Danish
courts interpret and apply section 26 of the Act on Liability in Damages Act
in the light of Article 6 of the Convention. Accordingly, the State party
concludes that the communication should be declared inadmissible because the
author has not exhausted available and effective domestic remedies. 6.2
On 18 July 2001, counsel informed the Committee that he had no further
comments to the additional information from the State party. Admissibility Considerations 7.1
Before considering the substance of a communication, the Committee on the
Elimination of Racial Discrimination examines whether or not the
communication is admissible, pursuant to article 14, paragraph 7(a) of the
Convention and rules 86 and 91 of its rules of procedure,. 7.2 The Committee notes that the petitioner brought his claim before the
police and the State Attorney who, in a decision of 29 April 1999, refused
to investigate the matter under the Danish Act on Racial Discrimination.
Parallel to that, the Social Appeals Board examined the case and concluded,
on 15 March 2000, that the decision of the Municipality not to approve the
author as a tenant was invalid. In the meantime, the municipality had
decided to alter its previous decision and approve the petitioner for the
apartment applied for or an equivalent one. The Social Appeals Board
informed the petitioner of the new municipality's decision by letter of 1
October 1998. 7.3
The Committee notes that, despite the new decision of the municipality and
the one of the Social Appeals Board, the petitioner was not provided with an
apartment equivalent to the one initially applied for, nor granted
compensation for the damages caused to him as a result of the first decision
of the municipality. The Committee notes, however, that the petitioner did
not meet one of the conditions required to be assigned an equivalent
apartment, namely, to remain on the waiting list. This failure cannot be
attributed to the State party. In the circumstances, the petitioner could
not obtain redress in the form of assignment of the original or of an
equivalent dwelling. He could, however, have sought compensation. 7.4
As to the question of damages, the State party argues that the petitioner
did not institute civil proceedings and, therefore, has not exhausted
domestic remedies. Despite the arguments given by the petitioner and the
reference to previous jurisprudence of the Danish courts, the Committee
considers that doubts about the effectiveness of such proceedings cannot
absolve a petitioner from pursuing them. Accordingly, the Committee
considers that, by not exhausting the available domestic remedies, the
petitioner has failed to meet the requirements or article 14, paragraph 7(a)
of the Convention. 8.
The Committee on the Elimination of Racial Discrimination therefore
decides: (a) That the communication is inadmissible; (b) That this decision shall be communicated to the State party and to
the petitioner. 9.
In accordance with rule 93, paragraph 2, of the Committee's rules of
procedure, a decision taken by the Committee that a communication is
inadmissible may be reviewed at a later date by the Committee upon a written
request by the petitioner concerned. Such written request shall contain
documentary evidence to the effect that the reasons for inadmissibility
referred to in paragraph 7 (a) of article 14 are no longer applicable.
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