The fact that the CERD-Committee deems individual persons as entitled to complain in similar situations in relation to the Committees own examination of complaints does not affect whether these persons are considered to have a right to complain in Danish administrative law.
Nor do I believe that the Convention against Racial Discrimination or practice according to it can be construed as implying a right for DACoRD in a case as the instant one to appeal the Decision of the Regional Public Prosecutor not to reopen investigation of the case to the Director of Public Prosecution.”49
DACoRD believes that the remarks by the Ombudsmand effectively demonstrates the structural problem for individuals and groups trying to obtain satisfaction under article 6 of the Convention, and problems of the status of the Convention as a non-incorporated Convention. Under the Convention the Government is obligated to secure effective remedies and the right to seek just and adequate reparation and satisfaction and under article 14 an aggrieved party claiming to be a victim under the Convention has a right to petition the Committee. Governments are obliged to cooperate in good faith and not to place hindrances in the way of a complainant. If anything the Ombudsmand overlooks the principle of effectiveness in international law, and suggest that Article 6 seen in conjunction with the obligation to criminalize in Article 4 has not been implemented at all in Danish law – which would be contrary to previous assurances from the Danish Government. Secondly, on may question if the Ombudsmand is of the opinion that a single report to the Police suffice to exhaust domestic remedies in respect of Section 266b in a case of a decision to cease investigations. The Government is not known to have taken a position on this point. The consequence of such position would also be curious since the special decision procedure established for Section 266b beginning with the Regional Prosecutor in the first tier was made in order to secure functional coordination in the prosecuting authority in these cases. Thirdly, the police procedure
49 Compare in contrast the general position of the Ombudsmand expressed in the public Report on the Revision of the Act on the Ombudsmand (Bet. Nr. 1272/1994 Ombudsmandsloven),: “The Ombudsmand ensures in particular that general criteria – including criteria that derives from ideas that underlies the Constitution or which forms part of the international conventions on human rights, especially the European Convention on Human Rights – are included in the assessment, when relevant.” (p. 122, ital.s added).
For the specific case to which DACoRD had referred – as noted by the Ombudsmand in the main text quote – the Ombudsmand had specifically considered the application of ICERD and ILO C.111 Discrimination (Employment and Occupation) Convention in a case, in which DACoRD had complained that the Public Employment Service deferred to employers request for workers with specific racial or ethnic characteristics. The Parliamentary Ombudsmand noted that Denmark had ratified these Conventions, “containing broadly worded norms regarding the participating States’ obligations not to discriminate or treat differently on the basis of race etc. The obligations of the Danish State are important for the limits as to which criteria can lawfully be accorded weight in discretionary decision-making. It is presumed that public authorities when they make concrete discretionary decisions do not come in conflict with treaty obligations that the Danish State have taken on. It follows from the socalled rule of instruction that administrative authorities – when exercising discretionary powers - are obliged to exercise their powers in such a way that a breach of international obligations are avoided.” – The Ombudsmand subsequently noted, that if the social partners at the labour market no longer were in control of the situation through collective agreements, as claimed by DACoRD, then there was “reason to consider whether the international obligations that Denmark had taken on in the area should be implemented through legislation.” (Reports of the Ombudsmand, FOB 1995. 46, ital.s added).
For purposes of clarification Section 99 § 3 of the Administration of Justice Act is found in Chapter 10 of the Act on the Prosecution Authority and only lays down the Director of Public Prosecution decides complaints over decisions by the regional prosecutors as the first tier of the hierarchy. Chapter 10 does not regulate the right to complain over administrative, prosecutorial decision, which is based on administrative practice and discretion. Section 749 of the Act on decisions not to investigate a case, provides in § 3, that such decision must be notified to persons with a “reasonable interest in the case”, while the decision can be appealed under the rules in chapter 10. Thus the right to complain is not regulated in law.