CERD/C/67/D/30/2003
Page 11
case involved criminal proceedings which were discontinued by the police, without
any action being taken on the part of the authors to have the proceedings re-instigated.
The present case involved an authoritative decision by the highest Norwegian Court to
acquit a person accused of racist statements. In the former case, the authors could
have taken the initiative to protest the decision by the police to discontinue the
criminal proceedings, but did not. In the present case, the authors had no possibility of
altering the course of the criminal proceedings. Further, Mr. Sjolie had now been
acquitted and cannot be retried. The Committee further noted that, in answer to the
question asked of it by the Committee during its 64th session, the State party
confirmed that the authors could not have requested to become a party to the criminal
proceedings against Mr. Sjolie. The State party submitted that the authors could have
taken defamation action against Mr. Sjolie. However, the authors contended that the
application of defamation laws to racist speech was an unresolved issue in Norwegian
law, and the Committee was not in a position to conclude that such proceedings
constituted a useful and effective domestic remedy. In the circumstances, the
Committee considered that there were no effective domestic remedies to be
exhausted, and that according no barrier to admissibility arose in this regard.
The authors claimed that they were ‘victims’ of alleged violations of articles 4
7.3
and 6 of the Convention because of the general inability of Norwegian law to protect
them against the dissemination of anti-Semitic and racist propaganda. They also
claimed that they were ‘victims’ because of their membership of a particular group of
potential victims; the authors, together with any other Jews or immigrants, faced an
imminent risk of suffering racial discrimination, hatred or violence. They referred in
particular to the jurisprudence of other international human rights bodies to support
their argument. They invoked the decision of the Human Rights Committee in the
case of Toonen v Australia, where the very existence of a particular legal regime was
considered to have directly affected the author’s rights in such a way as to give rise to
a violation of the International Covenant on Civil and Political Rights. They also
referred to the decision of the European Court of Human Rights in Open Door and
Dublin Well Women v Ireland, in which the Court found certain authors to be
‘victims’ because they belonged to a class of persons which might in the future be
adversely affected by the acts complained of. 14 Similarly, in the present case the
authors stated that, following the decision of the Supreme Court, they are at risk of
being exposed to the effects of the dissemination of ideas of racial superiority and
incitement to racial hatred, without being afforded adequate protection. They also
submitted that the decision contributed to an atmosphere in which acts of racism,
including acts of violence, are more likely to occur, and in this regard they referred to
specific incidents of violence and other ‘Nazi’ activities. The Committee agreed with
the authors’ submissions; it saw no reason why it should not adopt a similar approach
to the concept of ‘victim’ status as was adopted in the decisions referred to above. It
considered that, in the circumstances, the authors had established that they belong to a
category of potential victims.
7.4
The Committee did not consider the fact that three of the authors are
organizations posed any problem to admissibility. As has been noted, article 14 of the
Convention refers specifically to the Committee’s competence to receive complaints
from ‘groups of individuals’. The Committee considered that to interpret this
provision in the way suggested by the State party, namely to require that each
14
See footnote 17 below, paragraph 44.