laid down in express law, but based on practice and discretionary rules – must be interpreted in accordance with the societal interests that Section 266b is intended to protect. If the necessary balance cannot be struck in practice by the prosecuting authority, the aim could be provided for by incorporation or the adoption of a legislative amendment.
As a victim of a human right violation the interests of the victims are indeed “legal” since it is based on legal standards in the international Convention, accorded to the individual. In this context DACoRD refers to the reasons adopted by the Committee on the elimination of Racial Discrimination in the case of The Jewish Community of Oslo et al. v. Norway in Com. No. 30/2003 of 15 Aug. 2005.
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Absent incorporation the preferred Danish method of implementation of international human rights treaties, noting ‘harmony of norms’ or ‘transformation’, may give rise to lacunae in the protection. A question that was not perceived of or seen as a problem area at the time of ratification procedure may end up falling outside the scope of the treaty or the limits of its application. A recent example concerned ethnic profiling and left the aggrieved party without a remedy as noted below.
A young student participated in a trip with his school CPH West to the Prague in the beginning of April 2008. Before the trip back to Denmark a teacher decided to body search the complainant. The facts around this visitation have been disputed by the parties, however the complainant is of the opinion, that he was specific targeted and thus subject to “ethnic profiling” and that the teacher from CPH West lack any authority to search him.
On the other hand the school teacher explained to the Danish police that they search all students and they did not want to involve the local police, rather do the search themselves.
Furthermore it was stated by the teacher, that the complainant agreed to the visitation.
However, all agreed that nothing illegal was found on the student.
The main problem in the case seems to be that victims of discrimination in the form of “ethnic profiling” can not rely on the protection of the Act on the Prohibition against discrimination due to race which was first introduced into Danish law in 1971 in order for Denmark to be able to ratify the ICERD (article 5), today Act no 626 of 29. September 1987 (the 1971 Act was changed in 1987 in order to include sexual orientation, however the content of the legislation stayed the same).
The question of discrimination on the basis of race was disputed between the parties, and the Regional Prosecutor in June 2008 decided to close investigations of the file.
The Director General of Public Prosecution agreed in the result in his decision of 14 Oct. 2008, but based on different reasons, finding the act in question fell outside the scope of of the Act, both Section 1 § 1 and § 2:
“.. it is my opinion that a teacher’s visitation of a student during a study trip is outside the scope of the Racial discrimination Act, section 1.1. Nor can the provision in the Racial Discrimination Act section 1.2 be considered violated by searches, since this provision relates to denial of access …. Finally the case details in my view includes no basis for believing that there in the said visitation should have been committed any criminal offence.”