and Fundamental Freedoms, and that Section 266b had to be interpreted in accordance with Art. 10 and the case law of the European Court of Human Rights.
DACoRD agrees that freedom of expression is indeed a foundation of democratic society, but notes that the right must be exercised with due regard for the protection of the rights and freedoms of others, and cannot be used as a pretext for any act aimed at the destruction of these rights, cf. Art. 17. of the Convention. It is further noted, that Section 266b was enacted in order to implement ICERD in Danish law; yet the Government in the reference above, makes no reference to the obligation under ICERD to criminalize dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination or to violence. In practice, the Government does not cite this obligation as a relevant source of law for the interpretation of Section 266b of the criminal code.
DACoRD regrets to find no improvement in the situation since the last examination of Denmark by the Committee, and finds reason to restate its observation of 8 June 2006:
“DACoRD is of the opinion that the Convention is not being used by the authorities in the same manner as it would be, had it been incorporated. This perception is based on numerous cases of rejection by the prosecuting authority and the State Attorney to raise charges for racist statements made by e.g. members of Parliament or other persons participating in the public debate.
The legal provision in the Danish penal Code covering racist statements is section 266 b which reads as follows:
“(1) Any person who, publicly or with the intention of wider dissemination, makes a statement or imparts other information by which a group of people are threatened, insulted or degraded on account of their race, colour, national or ethnic origin, religion or sexual inclination shall be liable to a fine or to imprisonment for any term not exceeding two years.
(2) When the sentence is meted out, the fact that the offence is in the nature of propaganda activities shall be considered an aggravating circumstance.”
DACoRD has on several occasions made complaints to the prosecuting authority on behalf of persons who have felt aggrieved by statements covered by the Danish Penal Code section 266b. A number of these complaints have been rejected on the grounds that the prosecuting authority was of the opinion that the statements would not lead to conviction in a court of law. Furthermore, the State Attorney has in a case filed by DACoRD concerning racist statements made by Member of Parliament for the Danish Peoples Party Ms. Louise Frevert stated that:
”The section (section 266 b in the Danish Penal Code, ed.) must be interpreted in concurrency with the principles of freedom of expression laid down in the Danish Constitution section 77 and the European Convention on Human Rights article 10, which implies that section 266 b of the penal code must be interpreted narrowly under