prosecution would unduly dignify a statement that would otherwise be perceived as too ludicrous to be taken seriously. In sum, States parties act properly in determining that a criminal prosecution in a particular instance would cause greater harm to the goals of the Convention than would some other form of response to the offending statement. 13.The Convention does not preclude States parties from adopting a policy of prosecuting only the most serious cases. Indeed, such a policy would appear to be required by the principle that any restriction on the right of free expression must conform to the strict tests of necessity and proportionality. The necessity inquiry asks whether the aim of the restriction “could be achieved in other ways that do not restrict freedom of expression,” and the proportionality inquiry asks whether the State party employed “the least intrusive instrument amongst those which might achieve” its legitimate aims. Criminal prosecution of racist statements will often not be the least intrusive instrument for achieving the legitimate aim of eliminating racial discrimination; indeed, criminal prosecution will sometimes be counterproductive. The Committee implicitly recognized this point in Zentralrat Deutscher Sinti und Roma et al. v. Germany when it declined to find a violation, even though the State party did not criminally prosecute statements that the Committee found to be “discriminatory, insulting and defamatory,” noting that the offending statements had already carried consequences for its author. Unfortunately, the Committee has overlooked the point in this case. 14.In determining whether criminal prosecution is necessary and proportional, States parties properly take a number of factors into account. As relevant to this Communication, these factors include the form in which the statement was disseminated. A speech before a crowd or on television might properly be deemed of greater concern than an interview published in a cultural journal. States parties should also consider the number of persons reached by the publication. A statement in a newspaper of wide circulation may be deemed of greater concern than a statement in a journal of comparatively low circulation.States parties may also consider whether the offensive statements were addressed directly to the offended group or otherwise disseminated in a way that made it difficult for persons from the offended group to avoid them. Thus, racist statements displayed on a billboard or on the subway, where the targeted groups cannot avoid them, may be deemed of greater concern than offensive statements buried in the middle of a dense, lengthy interview mainly focusing on economic matters. Finally, and most importantly, States parties should take account of the context and the genre of the discussion in which the statements were made – for example, whether the statements were part of a vitriolic ad hominem attack or instead were presented as a contribution, however intemperate, to reasoned debate on a matter of public concern, as the State party found Mr. Sarrazin’s statements to be. 15.The Committee faults the State party for “concentrating on the fact that Mr. Sarrazin’s statements were not capable of disturbing public peace,” noting that Article 4 does not contain such a criterion. However, “it is not the Committee’s task to decide in abstract whether or not national legislation is compatible with the Convention.” The Committee’s task, rather, is “to consider whether there has been a violation in the particular case.” Moreover, the Public Prosecutor only mentioned this criterion as one among many reasons not to initiate a criminal prosecution, and the General Procurator did not mention the