as having mainly psychological consequences by opening the eyes of the legal practitioners of the ECHR and the convention organs and improving the possibility of the national judges of having a human rights-updated level of protection in domestic courts decisions.
Prior to this Denmark had argued in an individual communication, that the ICCPR might be argued before the courts:2.
"4.4.The State party also observes that the courts may directly rule on the alleged violations of Denmark's international obligations under the International Covenant on Civil and Political Rights. It concludes that, as the author failed to submit his complaint to the Danish courts, the communication is inadmissible under articles 2 and 5, paragraph 2(b), of the Optional Protocol."
A claim that the Convention can not only be applied by the Danish Court, but must be applied, was is further stressed in mandatory language in the 14th Danish periodical report to the Committee on the Elimination of Racial Discrimination:
"258.Thus the Danish authorities must apply the provisions of the Convention in connection with the interpretation and the application of Danish Law."
In actual practice, however, the situation may be somewhat different. This can be seen both when the Crown counsel argues in Court that the Convention is not incorporated into Danish law, and in the fact that actual court practice applying non-incorporated Conventions is rare – even when parties has made submissions based upon them. DACoRD continues to be of the opinion that the Convention is not being applied by the authorities in the same manner as it would be, if the Convention had been incorporated. The situation is similar to the description by the Government in the core document, para. 103, above, of the rare application by the European Convention on Human Rights before incorporation.
Two surveys have been published on the application by human rights conventions in the Danish Courts.
In 2001 a committee appointed by the Ministry of Justice recommended the incorporation of several additional Human rights Conventions, including ICERD. In its public report No. 1407/2001 “On the Incorporation of Human Rights Conventions in Danish Law” the Committee conducted a survey in Chapter 3 (pp. 31-62, cf. detailed review of the published decision in Annex 1, pp. 336-401) showing how Danish Courts have applied the ECHR after its incorporation in 1992. “The chapter also describes how Danish courts have applied other human rights conventions during the same period. It is pointed out that other human rights conventions are not invoked or applied to the same extent as the European Convention on Human Rights. While there were 12 published decisions relating to other human rights conventions, there were 158 decisions concerning the European Convention on Human Rights.”(p. 322). The Report further demonstrates a steady growth in the number of cases where the ECHR have been pleaded or applied since its incorporation in 1992: from 3 in 1993 to 43 in 1999 and 34 for 2000. The Annex 1 review further in laconic language detailed that the court in question did not address the “other” convention pleaded. Of the 12 cases reported ICERD had been argued in
2Com. No. 397/1990, P.S. v. Denmark, Decision of 22 July 1992, Report of the Human Rights Committee, 47 GAOR Suppl. 40 (A/47/40), p. 395, at 399; inadmissible for lack of exhaustion of domestic remedies.