“The defendant has as a politician taken active part in the political debate as a part in his work for a restrictive policy on aliens turned against Muslims. It cannot in itself be considered criminal in such debate to argue with a reference to Islamic texts or to societal consequences of the program of fundamentalistic Muslims. References of this kind cannot, however, justify insults and degradation as the ones expressed in the defendant’s statements. A debate on the political goals of the defendant is not precluded by a criminalization of such statements. The consideration of a particularly extensive freedom of expression10 for politicians in controversial societal matters can therefore not give grounds for exemption from punishment for the defendant.”(ibid. at 2247).
In this context DACoRD briefly observes that its observation is made out of grave concern over the fact that the Prosecution Authorities has in recent years made a series of similar decisions refusing to investigate and prosecute complaints concerning statements from politicians using a similar approach in misrepresenting the Supreme Court judgement in the Glistrup case. Some of these have reached the international level, cf. eg. Gelle v. Denmark, CERD No. 34/2004 where CERD found a violation of ICERD Art. 6, in regard to statements targeting Somalis in Denmark and set forth by Ms. Kjærsgaard. The statements in that case have subsequently been repeated in 2006 by another member of the Danish Popular Party, Søren Espersen, MP. The investigation of his case was discontinued on the same misrepresentation of the Glistrup judgment and a complaint is presently pending before the Committee on the Elimination of Racial Discrimination, CERD No. 43/2008. Another case concerning statements by Ms. Kjærsgaard against Somali is similarly pending before CERD: Jama v. Denmark, No. 41/2008. A similar case Andersen v. Denmark, HRC Com. No. 1868/2009 is currently pending before the Human Rights Committee, citing Art. 20(2) alone and in conjunction with Art. 27 as well as Art. 2 on effective remedies, is expected to be considered by the Human Rights Committee at its July 2010 Session. Extensive comments by DACoRD were submitted in the latter case on 29 June 2009. A case a against 2 MPs and one MEP for Islamophobic statements by MP Søren Krarup, MP Morten Messerschmidt and MEP Mogens Camre is furthermore pending before the Human Rights Committee, Com. No. 1879/2009, Abdul Wahid Pedersen v. Denmark.
on these cases DACoRD observes that the law and practice must secure effective remedies against human rights violations. Purely administrative remedies as a complaint to the policies not sufficient, if the State party cannot demonstrate to the Committee, that the investigative steps have been sufficient and effective in practice. In the cases above no precise information has been given. The executive may not be prepared to tolerate and let go unpunished serious human rights violations notwithstanding the official status of the perpetrator. The duty to investigate violations of human rights violations implies also a correlative duty in appropriate cases to prosecute criminally, try and punish those held responsible for such violations. This duty applies a fortiori in cases such as mentioned above where the perpetrators of such violations are identified. Adoption of laws or a change in practice under existing law that effectively excludes the possibility of investigation into past, present and future human rights violations prevents States from discharging its responsibility to provide effective remedies to victims, and may contribute to an atmosphere of impunity which may give rise to further grave human rights violations.
Failing to prosecute Ms. Kjærsgaard and other members of the Danish People’s Party, the Prosecution Service has in fact given carte blanche to conduct a systematic islamophobic
10 A notion suggested by the defence counsel for Mr. Glistrup during oral proceedings.