concern of the freedom of expression”.9
Nothing is mentioned of the Convention on the Elimination of All Forms of Racial Discrimination, presumably given the fact that it is not an integrated part of Danish law.”
Under the Danish Administration of Justice Act, Section 218, the prosecution authority is given the monopoly of bringing criminal cases before the courts, unless there is specific authority allowing private individuals to sue. Under the Criminal Code, Section 275, the public monopoly for the prosecution authorities is expressly reserved in respect of Section 266b. Since the decision by the Director of Public Prosecutions (Rigsadvokaten) is final and cannot be appealed, the decision not to prosecute constitutes exhaustion of national remedies.
DACoRD observes that the prosecution authorities have for nearly a decade in effect created a barrier against effective investigation of violation of Section 266b by politicians and thereby a presumption against effective remedies for victims of such statements. In expression of the above the Director of Public Prosecution, Henning Fode, said to the newspaper, Jyllandsposten, on 8 October 2006: “I have no obligation to follow the views of ECRI or the UN Committee on Racial Discrimination. I need to comply with the working conditions, which Parliament has laid on the table before me, and that is Section 266b with its travaux préparatoires, the general rules on freedom of expression and the decisions by the European Court of Human Rights”.
In a number of decisions regarding alleged violations of Section 266b the Director of Public Prosecutions have exonerated several leading politicians, in particular from the Danish Popular Party (sometimes called the Danish People’s Party) from effective investigation and prosecution. The standard reason given by the Director of Public Prosecutions in his decisions not to prosecute politicians has been a statement, that they enjoy a “particularly extensive freedom of expression”. The rationale for this reason is given as a reference to the Supreme Court judgement of 23 August 2000, against a politician and then former member of parliament, Mogens Glistrup of the Danish Progress Party, from which the founding leadership of the Danish Popular Party broke-away in 1995. As a matter of fact, the reference by the Director of Public prosecution is however not a reference to the ratio decidendi of the Supreme Court, which convicted Mr. Glistrup, but to a passing obiter in the judgement. In the case Mr. Glistrup was convicted for statements inter alia liking ‘Mohammedans’ to ‘world criminals par excellence’.
In the Glistrup case The Supreme Court panel of 5 judges unanimously found Section 266b applicable in the case: “The defendant had subjected a population group to hate on account of its creed or origin.” (UfR 2000.2234 at 2246). The Court further addressed the relationship between Sec. 266b and freedom of expression:
“Freedom of expression is fundamental for a democratic society, since tolerance vis-à-vis the opinion of others is a necessary precondition for a free debate. Freedom of expression must, however, be exercised with necessary respect for other human rights, including the right to protection against insulting and degrading discrimination on the basis of religious belief.”
9 Decision from the State Attorney of Copenhagen, Frederiksberg and Tårnby Counties, dated May 19th 2006.