Hussain v. Norway

The author of the communication is Sajjad Hussain, a national of Norway, born on 10 June 1977. He claims to be a victim of a violation by the State party of articles 2 (1) (a), 5 (a) and 6 of the Convention. Norway acceded to the Convention on 6 August 1970 and made the declaration under article 14 on 23 January 1976. The author is represented by counsel.

On 18 August 2014, the author was arrested by order of the Nedre Romerike District Court. He was charged along with 12 other persons, including family members and business partners, in relation to the trafficking of 10 persons from Pakistan to Norway, in order to work in very poor conditions³ in the grocery stores that he owned. The author was accused of being the main perpetrator of those crimes.

3. The charges against the author included 34 violations of the Penal Code, the Working Environment Act, the Immigration Act and the Income Tax Act (information provided by the State party in its observations of 2 February 2019). ↩

The author was held in pretrial detention from 18 August 2014 until 31 May 2016.⁴ From the time of his arrest until 24 June 2015, the author was detained on the ground of risk of destruction of evidence, in accordance with several sections of chapter 14 of the Criminal Procedure Act, in particular section 171 (2).⁵ From that date until the start of trial hearings, in January 2016, he was kept in pretrial detention on the ground of risk of flight (absconding), pursuant to section 171 (1) of the Criminal Procedure Act of Norway. On 20 January 2016, the author’s main hearing started before the Oslo District Court; from that date, he was kept in detention in accordance with section 185 of the Criminal Procedure Act, which establishes that a person who is subject to pretrial detention can be kept in custody until a judgment in the person’s case is delivered.⁶

4. The Criminal Procedure Act (sect. 185) establishes that, if a court decides to remand a person charged in custody, it shall fix a specific time limit for such custody. The time limit cannot normally exceed four weeks. The court may extend the period for an additional four weeks if the prosecuting authority files an application for extension. The detained person may file a petition for release, which will be examined by a court, following the ordinary procedure. ↩
5. According to the Criminal Procedure Act, two conditions must be fulfilled to arrest or keep a person in preventive detention: (a) that there is a “just case”, in which a person is suspected of having committed one or more acts punishable by a penalty exceeding six months in prison (sect. 171); and (b) that the decision to arrest or keep a person detained must be proportionate, in view of the nature of the case and other circumstances (sect. 170 (a)). In addition, one of the three following requirements must be fulfilled: (a) there is reason to fear that the person will evade prosecution or the execution of the sentence (sect. 171 (1)); (b) there is an imminent risk that the person will interfere with any evidence in the case, for example, by removing clues or influencing witnesses or accomplices (sect. 171 (2)); and (c) the arrest or detention is necessary to prevent the person from committing another crime punishable by imprisonment for a term exceeding six months (sect. 171 (3)). ↩
6. Sect. 185 states that, if the main hearing has begun when the person charged is remanded in custody or when the time limit for the custody expires, the person charged may be kept in custody until judgment is delivered. ↩

Immediately after the main hearing started, on an unknown date, the author filed a petition to the Oslo District Court to be released from detention. The petition was rejected on 2 February 2016. The author appealed the decision to the Borgarting Court of Appeal, which rejected the author’s appeal on 18 February 2016.

On 4 April 2016, the author filed a new petition to be released. On 13 April 2016, the Oslo District Court determined that the author could be released. It indicated that, even though the conditions to keep the author in pretrial detention continued to be fulfilled, further prolonging his detention would be disproportionate, as his trial would last about 12 additional months. To arrive at that conclusion, the Court considered that it was not likely that the author would leave the State party’s territory and referred to the fact that he was Norwegian, that he did not have any other nationalities, that his spouse and children were all Norwegian, that his older children were enrolled in schools and that their friends and networks were in Norway. The Court also considered that, even if the author left the country, it would still be able to deliver a verdict. In addition, the Court indicated that persons who fled to Pakistan would be returned to Norway, referring to a case in which a person who had travelled to Pakistan with a fake passport after that person’s passport had been confiscated as part of a criminal proceeding was subsequently extradited to Norway. The Court took into account provisions of the Constitution of Norway⁷ and of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights),⁸ as well as jurisprudence of the European Court of Human Rights, according to which, as a general rule, alternative measures to detention should be put in place.⁹ The court imposed a number of conditions on the author’s release, including the confiscation of his passport, the voluntary handing-in of the passports of his spouse and children, the duty to attend all court proceedings and the duty to report to the police during the periods when the trial would be suspended, for example during the summer holidays.

7. The Court referred to article 94 (1) of the Constitution, which indicates that the deprivation of liberty must be necessary and cannot constitute an unreasonable encroachment; article 96 (2), which establishes that everyone has the right to be presumed innocent until proven guilty according to law; and article 104 (2), which establishes that in actions and decisions regarding a child, the best interests of the child shall be a fundamental concern. ↩
8. The Court referred to art. 5 (3) of the European Convention on Human Rights, which establishes that release may be conditioned by guarantees to appear for trial. ↩
9. European Court of Human Rights, Khodorkovskiy v. Russia, Application No. 5829/04, Judgment, 28 November 2011. ↩

On 13 April 2016, the prosecutors appealed the decision of the Oslo District Court. The appeal had a suspensive effect, so the author was not released.

On 19 April 2016, the Borgarting Court of Appeal reversed the Oslo District Court’s decision of 13 April 2016 by a two-to-one majority ruling. The question before the Court of Appeal was whether there were grounds for keeping the author in detention until a verdict was delivered, pursuant to section 185 of the Criminal Procedure Act, and whether keeping him in custody would be a disproportionate measure. The Court considered that maintaining the pretrial detention of the author was not disproportionate, and based the conclusion on several elements. The Court indicated that, despite the fact that the author’s association with Norway was comparatively strong, a not-inconsiderable risk of him absconding existed. The Court also considered that the prosecutor’s possible claim for a sentence of 10 years of imprisonment provided a strong motivation for absconding to avoid such a long sentence, and that the author’s Pakistani background would contribute to making it possible that he would abscond. Moreover, the Court stated that the terms imposed by the Oslo District Court’s decision did not “materially reduce” the risk of absconding, as the author’s financial assets would allow him to do so. The Court referred to the author’s attempt to leave the State party in 2014, and quoted as a basis for that affirmation a judicial decision issued by the Eidsivating Court of Appeal on 27 October 2015.¹⁰ In addition, the Borgarting Court of Appeal indicated that, taking into account the lack of passport control at the State party’s border, the author could easily leave, and that dealing with a petition for extradition from Pakistan, for example, might involve a protracted process with an uncertain outcome. The Court also indicated that it would be difficult to continue with the proceedings if the author left the country, as he was accused of being the ringleader of a criminal organization; therefore, his absence in the last part of the trial would have negative consequences for the conclusion of the proceedings. The Court also took into account the complexity of the investigation, which involved 13 persons, and referred to the gravity of the charges, indicating that, as they were highly harmful for society, public interest was on the side of the investigation’s effectiveness, which could have been hampered had the author been released.

10. The decision of the Eidsivating Court of Appeal was issued as a consequence of an appeal submitted by the author against an extension of his detention issued by the Nedre Romerike District Court on 15 September 2015, on the ground of risk of flight (absconding), as established in section 171.1 of the Criminal Procedure Act. In that decision, the Eidsivating Court of Appeal indicated that it considered that there were subjective and objective grounds to believe that the author was guilty of the charges of trafficking in persons. The Court also indicated that, even though the author’s attachment to Norway could be qualified as strong, there was a risk that he would abscond, taking into account that he had family connections in Pakistan, as well as the fact that he and close family members owned significant assets there, including money transfers made by his family. The Court further indicated that, according to evidence presented by the prosecutor (telephone conversation of 12 August 2014), it had become clear to the author that he would be arrested soon, and that, as result, he was trying to leave the country when he was arrested. The Court considered that keeping the author in detention would not violate his rights under article 8 of the European Convention on Human Rights and would constitute a proportionate measure. One judge of the Court disagreed, on the grounds that alternative measures could be put into place to avoid the risk of absconding, citing European Court of Human Rights, Khodorkovskiy v. Russia, Application No. 5829/04, Judgment, 28 November 2011. ↩

One judge of the Borgarting Court of Appeal agreed with the decision of the Oslo District Court of 13 April 2016. That judge stated that, despite the fact that a risk of absconding existed, the question was whether adding more time to the author’s pretrial detention would be adequately justified and proportional, bearing in mind the relevant provisions of the Constitution and the European Convention of Human Rights.¹¹ The judge considered that keeping the author in pretrial detention would not be a proportionate measure owing to several factors: the proceedings would take longer than originally envisaged; the author had already appeared regularly in court proceedings and had provided evidence regarding the most serious charges against him; if the author evaded, the Court would still be able to deliver a verdict, even taking into account that he was the ringleader of a criminal organization and that the case was complex, as the author was not under any obligation to provide further evidence; by absconding, the author would miss the opportunity to contest any further evidence against him; and there was no doubt of the author’s attachment to the State party, as he and his family were Norwegian citizens and all of his close relatives lived in Norway. In the opinion of that judge, those elements would constitute a deterrent against flight, as absconding would mean that the author would have to be absent from Norway for a long period of time. The judge further indicated that the conditions established by the Oslo District Court were enough to reduce the flight risk.

11. The judge in the minority opinion referred to article 94 (1) of the Constitution and article 5 of the European Convention of Human Rights. ↩

On 19 April 2016, the author appealed the decision of the Borgarting Court of Appeal, delivered on the same date, to the Supreme Court of Norway. The author affirmed that the judges of the Borgarting Court of Appeal had made several errors in applying the law. The author indicated that the Court had misinterpreted a statement made by the Oslo District Court regarding his assets and, on the basis of that error, had concluded that the author would have the resources to pay to abscond. The author affirmed that, on the contrary, his financial resources were not as great as interpreted by the Court, as, although he had several assets in Norway, all of them were under encumbrances. The author also indicated that the Borgarting Court of Appeal had committed an error by affirming that he had admitted to trafficking in persons, even though he had never plead guilty to those charges. The author therefore claimed that his right to a presumption of innocence, protected under the Constitution and the European Convention on Human Rights, had been violated. The author maintains that the Court’s assertion that a possible penalty of 10 years of prison would constitute a strong motive to abscond was not sufficient proof that he would indeed try to flee the country. Furthermore, the author refers to the statement by the Court that his Pakistani background would contribute to making it possible that he would abscond. He considers that such a statement violates the State party’s Constitution (art. 92),¹² the International Convention on the Elimination of All Forms of Discrimination (arts. 1, 2, 5 and 6) and Norwegian legislation.¹³ The author affirms that he was born in Norway, that he is a Norwegian citizen, that he is married to a Norwegian citizen and that his children are also Norwegian. Moreover, he states that he has never lived in any other country and that he had grown up in the “Norwegian culture”. The author adds that, even though one could consider that he has a Pakistani physical appearance and name, he has no “Pakistani background”.¹⁴ The author contests the Court’s assertion that his absence from a trial would have serious consequences for the proceedings. He refers to similar cases in which the Supreme Court found that the absence of the accused had had no impact on the proceedings.¹⁵ Finally, the author indicates that the Court did not respond to his arguments on the need to find alternatives to pretrial detention, as required by article 5 of the European Convention of Human Rights.

12. Article 92 establishes that the authorities of the State shall respect and ensure human rights as they are expressed in the Constitution of Norway and in the treaties concerning human rights that are binding for Norway. ↩
13. Act No. 60 of 2013, relating to prohibition of discrimination on the basis of ethnicity, religion and belief, establishes that harassment on the grounds of discrimination on the basis of ethnicity, national origin, descent, skin colour, language, religion or belief, is prohibited. In addition, it states that harassment shall mean acts, omissions or statements which have an offensive, frightening, hostile, degrading or humiliating effect, or which are intended to have such an effect. ↩
14. The author referred to relevant case law, including a case in which the prosecutors did not refer to the Pakistani background of the accused, even though the accused’s background was directly linked to the facts of the case (Case Rt. 1194, p. 1,671). ↩
15. The author refers to Supreme Court decision HR-2016-379-A of (Case No. 2015/1628, Decision, 17 February 2016. ↩

On 22 April 2016, the Appeals Committee of the Supreme Court unanimously held that the author’s appeal would not succeed. It noted that its competence was limited, as it could only review the Borgarting Court of Appeal’s interpretation in certain cases, according to the relevant provisions of the Criminal Procedure Act.¹⁶ In reference to the author’s claim of a possible violation of the European Convention on Human Rights, the Appeals Committee indicated that there also existed a possibility of interpreting and applying the text as contained in the Convention. However, the Appeals Committee dismissed the author’s appeal without indicating on which grounds.

16. Article 388 of the Criminal Procedure Act establishes that no further interlocutory appeal may be brought against the court of appeal’s decision of an interlocutory appeal, except in the following cases: (a) when the Court summarily dismisses a case from the lower court because the case does not come within the jurisdiction of the courts, or because it has already been decided by a legally enforceable judgment; (b) when the interlocutory appeal relates to procedure in the court of appeal; (c) when the interlocutory appeal relates to the interpretation of a statutory provision; or (d) when the interlocutory appeal relates to a decision concerning a duty to testify pursuant to section 125. If the Appeals Committee of the Supreme Court unanimously finds that neither the significance of the decision beyond the current case nor other matters indicate that an interlocutory appeal against the court of appeal’s decision of an interlocutory appeal shall be heard, the Committee may summarily dismiss the interlocutory appeal. The decision to do so shall be made by a court decision, which may be reversed in favour of the person charged when there are special reasons for doing so. ↩

On 3 June 2016, the author was released following a “medical breakdown”.¹⁷ His release followed the terms of the Oslo District Court’s decision of 13 April 2016.

17. The author does not provide further details. ↩

On 22 June 2018, the Oslo District Court issued a guilty verdict, in which it sentenced the author to nine years’ imprisonment¹⁸ and, among other sanctions, confiscated some of his assets, amounting to 42,500,000 kroner (approximately 4,365,000 euros).

18. The State party indicates that this judgment has been appealed. ↩

The author alleges that the State party has violated his rights under articles 2 (1) (a), 5 (a), and 6 of the Convention, in particular by the decision of the Borgarting Court of Appeal of 19 April 2016, which constituted racial discrimination against him.

The author submits that the Borgarting Court of Appeal gave disproportionate weight to his ethnicity when it concluded that there was a considerable flight risk, which is why he was unfairly kept in custody. The author rejects the Court’s statement that he is of Pakistani background, and reiterates the arguments contained in his appeal to the Supreme Court that, apart from his skin colour and family history, he has no connection to Pakistan that could validate the Court’s statement. The author also indicates that he agrees with the assessment that his “primary and clear attachment” is to Norway.

The author maintains that the Borgarting Court of Appeal’s consideration of his ethnicity and the Supreme Court’s decision to uphold the decision of the Borgarting Court of Appeal are contrary to the State party’s obligation not to engage in any act or practice of racial discrimination, an obligation established in article 2 (1) (a) of the Convention. In addition, consideration of his ethnicity would constitute a violation of his right to equal treatment before the tribunals and all other organs administering justice established in article 5 (a) of the Convention.

The author claims that the Supreme Court’s rejection of his appeal is contrary to the obligation to ensure effective protection and remedies against any acts of racial discrimination under article 6 of the Convention, bearing in mind that there was reason to believe that the decision of the Borgarting Court of Appeal was based on discriminatory grounds. He argues that the State party’s failure to ensure his rights under the Convention and prevent racial discrimination against him constitutes a violation of article 6 of the Convention.

On 20 February 2019, the State party submitted its observations on the admissibility and on the merits of the communication. It indicates that the communication is inadmissible because the author failed to exhaust domestic remedies, and that the author’s rights under the Convention were not violated, as no racial discrimination occurred.

The State party refers to the facts, summarizes the domestic proceedings against the author and refers, in particular, to the decision of 19 April 2016 of the Borgarting Court of Appeal. In the view of the State party, the statement made by the Court in relation to the author’s Pakistani background must be understood as a reference to his connection to Pakistan and not to his race, colour, descent or national or ethnic origin. The State party adds that, according to domestic law, when assessing the lawfulness of the prolongation of detention, the courts need to analyse the risk of absconding,¹⁹ which was what the Court of Appeal did in its decision of 19 April 2016. The State party affirms that the Supreme Court has on numerous occasions established that a person’s ties to other countries may be a relevant factor in such an assessment, which must be based on objective grounds, and that a mere reference to a person’s connection with a foreign country is not sufficient. Moreover, an overall assessment must be made on the basis of the person’s connection to Norway, as well as to any other country, taking into account the length of imprisonment that the person is risking.²⁰

19. The State party refers to section 184 (15) (i) of the Criminal Procedure Act, according to which one of the conditions to extend detention is the risk that the person will evade prosecution or the execution of a sentence. ↩
20. The State party refers to, inter alia, the following decisions of the Supreme Court: Rt-2013-1558, paras. 13 and 14; Rt-2000-1938; and Rt 2001-972. ↩

The State party indicates that the author did not exhaust all domestic remedies, and that the communication is therefore inadmissible according to article 14 (7) (a) of the Convention.²¹ The State party points out that the only remedy used by the author was his appeal of the decision of the Borgarting Court of Appeal to the Supreme Court, and maintains that other remedies that would have been effective were at the author’s disposal. The State party affirms that, following the incorporation of the provisions of the Convention into domestic law, an act relating to prohibition of discrimination on the basis of ethnicity, religion and belief was adopted on 21 June 2013 (Act No. 60 of 2013),²² in which it was established that any person who had been discriminated against could claim compensation for economic and non-economic losses.²³ Such claims can be filed in an ordinary civil lawsuit before the national courts. In addition, the Act established a procedure for requesting a declaratory judgment from the national courts, indicating that a discriminatory action that violated the Act had occurred. None of those remedies have been used by the author.

21. The State party refers to the jurisprudence of the Human Rights Committee on the matter and indicates that it assumes that the Committee applies the same standards, as they are based on a principle of international law. It refers to Human Rights Committee, N.A.J. v. Jamaica, communication No. 246/1987, para. 10.3; and D.B.-B v. Zaire (CCPR/C/43/D/463/1991), para. 4.2. ↩
22. The State party informs the Committee that, as of 1 July 2018, Act No. 51 of 2017 (Equality and Anti-Discrimination Act) has been updated to include provisions similar to those contained in Act No. 60 of 2013. ↩
23. The Act established that a person who had been discriminated against could claim redress and compensation; that in employment relationships, liability applied regardless of whether the employer could be blamed for the discriminatory act; and that in other areas of society, liability applied if a person could be assigned responsibility. It also established that compensation should cover financial loss as a result of discrimination and that redress for non-pecuniary damage would be determined at what was reasonable, based on the extent and nature of the damage, the circumstances of the parties and the circumstances in general. These rules did not limit the person’s right to claim relief and damages under general tort rules. ↩

The State party also states that, according to Act No. 60 of 2013, a victim of discrimination can submit a complaint to the Equality and Anti-Discrimination Ombud and to the Equality and Anti-Discrimination Tribunal, the organs that are charged with enforcing and implementing the Act. The State party indicates that the author did not use those remedies either.

The State party adds that the only remedy used by the author, the appeal to the Supreme Court, was not the best suited for his case, as the court’s competence was limited and it was able to reject the appeal without providing any specific grounds, as established in domestic legislation. In the State party’s view, the above-mentioned remedies were better suited, as they could have provided the complainant with the opportunity to file a case in which the alleged racial discrimination was the subject matter of the case, and could have allowed a court to take a decision, using its full reasoning as to whether the alleged discrimination had taken place or not.

Regarding the merits of the communication, the State party reiterates that the remark contained in the decision of the Borgarting Court of Appeal about the author’s Pakistani background did not refer to his race, colour, descent or national or ethnic origin, but to his connection to Pakistan. The State party adds that the remark was linked to the previous sentence, in which the Court indicated that the author had a strong motivation for absconding. It is clear that absconding – leaving the State party for Pakistan or any another country – does not depend on the colour of a person’s skin or his or her ethnic background; it is therefore difficult to understand why the Court, in the context of the decision, would make a statement suggesting that that such characteristics as the author’s race, colour, descent, national or ethnic origin could contribute to making absconding possible. The State party indicates, moreover, that the Court’s remark cannot be understood in the sense that the author’s Pakistani background increased the risk of absconding, or that people of Pakistani background have a higher risk of absconding than other people. Consequently, the natural understanding of the sentence is that it refers to the author’s connection to Pakistan and that this connection is irrespective of the author’s ethnicity or colour.

In addition, the State party affirms that the Borgarting Court of Appeal, in its decision, referred to previous assessments made by different courts in relation to the extension of the author’s pretrial detention (see para. 2.2) and that, taking into account those assessments, the Court concluded that specific objective grounds existed for believing that the author would abscond if released, bearing in mind, in particular, his family and financial connections in Pakistan. In that regard, the State party refers to the decision of the Eidsivating Court of Appeal of 27 October 2015 (see para. 2.6), in which the Court stated that even though the author had a strong attachment to Norway, the risk of absconding existed, taking into account that, according to information available in his criminal file, he had family connections in Pakistan, and that he and close members of his family owned significant assets in the form of properties and businesses. The Court also indicated that, according to information in the file,²⁴ the author’s family, including those who were charged with participating in the same criminal activity as the author, had made transfers of capital to Pakistan, indicating that the author had a significant financial and family foothold in Pakistan.

24. Communication, Romerike Police District (Doc. 01266). ↩

The State party refers to a report dated 18 December 2014 from the Romerike police to the Eidsivating Court of Appeal, in which the police confirmed that the author and his family had, either personally or through others, sent large sums abroad between 2010 and 2014. In addition, the police referred to evidence obtained in a raid at the residence of one of the author’s relatives, in which it was found that the family had several accounts in Pakistani banks that received regular transfers of large amounts of money. Moreover, the police indicated that the family owned assets, including property investments, in Pakistan. In the report, the police also referred to a telephone call between the author and one of his relatives, in which the relative stated that a person in Pakistan had confirmed receipt of the relative’s transfer of funds. In another call, the author stated that he was putting money in a bag so that his father could collect it and take it to Pakistan.²⁵ The State party refers to another report from the police, dated 1 July 2015, in which it was stated that the author’s uncle, who had helped to recruit the victims of trafficking in persons, lived in Pakistan, as well as other aunts, uncles and cousins. The police reported that several witnesses in Pakistan had affirmed that the author had money and contacts in Pakistan and that his family owned several houses there. Lastly, the State party refers to a third report from the police, dated 20 April 2016, which stated that, as indicated in several previous decisions by the Oslo District Court and the Borgarting Court of Appeal, the author had family connections in Pakistan and owned significant assets there.

25. The police report also indicated that, in an interview, a witness reported that he had taken money abroad with and on behalf of the author, explaining the modus operandi. He also indicated what the money had been used for in Pakistan. ↩

The State party argues that, even if the Committee considers that the Borgarting Court of Appeal’s statement concerning the author’s Pakistani background referred to his race, colour, descent or national or ethnic origin, instead of his connection to Pakistan, no racial discrimination took place.

The State party affirms that the statement by the Borgarting Court of Appeal did not have much weight in its decision to prolong the author’s detention, as the Court referred to several other factors in its decision, including the length of the imprisonment the author risked; the fact that he had a number of assets, which made absconding possible; the fact that he had attempted to leave Norway previously; the important impact that his possible absconding could have on the proceedings; and the fact that the criminal activity of which he was accused was highly harmful to society. In the State party’s view, when taking the judicial decision as a whole, the reference to the author’s Pakistani background had little, if any, impact on the Court’s decision. Therefore, no distinction has been made regarding the author based on his race, colour, descent or national or ethnic origin in the sense of article 1 of the Convention. Consequently, there has been no violation of the author’s rights under articles 2 (a), 5 (a) and 6 of the Convention.

Moreover, the State party indicates that, even if the Committee considers that the remark in the decision of the Borgarting Court of Appeal constituted racial discrimination, no violation of article 6 of the Convention has occurred. The State party affirms that the author was able to appeal the Court’s decision to the Supreme Court, alleging that the Constitution, the Convention and the Anti-Discrimination Act on Ethnicity were violated, and that the Supreme Court, based on domestic legislation, rejected the appeal. The author’s allegation of racial discrimination was, therefore, scrutinized by the Supreme Court. The State party reiterates that the author did not exhaust other remedies that were available. Consequently, based on the existence of available remedies for the author (exhausted and non-exhausted), the State party did not violate article 6 of the Convention.

On 21 September 2022, the author submitted his comments on the State party’s observations. Regarding the admissibility of the communication, the author affirms that the decision of the Borgarting Court of Appeal not only contained a discriminatory statement against the author, but also served as the basis for extending his detention for approximately 12 months. Therefore, not only was the author affected by the discriminatory statement per se, but he was also deprived of his liberty, in an extensive and intrusive measure, on the basis of that statement. The author affirms that the exhaustion of domestic remedies should be assessed under that perspective, and that the only remedies that would have been effective were those that would have had a preventive effect, that is, by annulling the deprivation of liberty and by putting an end to his detention, which was based on a discriminatory statement.²⁶ The author maintains that the appeal to the Supreme Court was the only remedy that could achieve that objective and it has been exhausted. No other remedies could have resulted in putting an end to his detention.

26. See European Court of Human Rights, Avetisyan v. Armenia, Application No. 39087/15, Judgment, 3 May 2022. ↩

The author adds that initiating civil proceedings to obtain compensation, to obtain a declaratory judgement or to file a complaint to the Equality and Anti-Discrimination Ombud, would only, at best, have a compensatory effect. Given the nature and gravity of the measure imposed on him – the continuation of his deprivation of liberty based on the discriminatory statement – such remedies would not have been effective.

Concerning the merits, the author disagrees with the State party’s argument that the Borgarting Court of Appeal statement did not refer to the author’s race, colour, descent or national or ethnic origin, but to his connections to Pakistan. The author affirms that the only possible reading of the Court’s statement on his Pakistani background is that the Court was referring to his ethnic background, making unfounded assumptions as to how such an ethnic background would entail a greater risk of absconding than for persons with other ethnic backgrounds.

The author indicates that when a court takes a decision regarding the prolongation of a detention, it should refer to particular facts and relevant evidence that support the court’s findings. If a court includes references to ethnic backgrounds in its decisions, there are strong reasons to believe that its assessment has been based on stereotyped ideas of the characteristics of members of an ethnic group and that the assessment was therefore of a discriminatory nature. The author therefore affirms that the statement made by the Borgarting Court of Appeal constitutes racial discrimination under article 1 of the Convention.

Regarding the State party’s argument that no distinction was made regarding the author based on his race, colour, descent or national or ethnic origin, the author states that it is important to bear in mind that the courts’ decisions on extending the duration of a detention are based on discretionary assessments, and that there is, therefore, a risk that considerations related to stereotyped ideas about ethnic backgrounds can affect such assessments. If a discriminatory assessment is made by a court, this will not be spelled out in the court’s reasoning. It follows that asking the author to extensively prove that an assessment made by a court was discriminatory would set the bar too high and would, consequently, make the protection of rights set out in the Convention illusory.

Thus, the author argues that, when an applicant makes a prima facie case regarding possible discrimination committed by the courts, it is the State party that should present evidence to demonstrate that such discrimination did not take place. In the present case, the State party did not demonstrate that the author’s affirmation that he was the victim of discrimination in the decision of the Borgarting Court of Appeal decision was not true. The author maintains that he has been the object of a distinction made on the basis of his race, colour, descent or national or ethnic origin and that, consequently, his rights under the Convention have been violated.

Before considering any claim contained in a communication, the Committee must decide, pursuant to article 14 (7) (a) of the Convention, whether the communication is admissible.

The Committee takes note of the State party’s argument that the author did not exhaust several remedies that were available to him and were effective. The Committee notes the State party’s argument that, according to the act relating to prohibition of discrimination on the basis of ethnicity, religion and belief (Act No. 60 of 2013), the author could have requested compensation through the civil courts, could have requested a declaration that discrimination against him had taken place and could have submitted a complaint to the Equality and Anti-Discrimination Ombud or to the Anti-Discrimination Tribunal.

The Committee takes note of the author’s allegations that the above-mentioned remedies would, at best, have had a compensatory effect. The Committee also notes the author’s claim that the only effective remedy was to appeal the decision of the Borgarting Court of Appeal to the Supreme Court, taking into account that it was the single remedy that could put an end to his detention, which was unfairly prolonged on the basis of a discriminatory judgment. In that regard, the Committee also takes note of the State party’s argument that the appeal to the Supreme Court was not the most suitable remedy for the author’s situation, as the Court’s jurisdictional competence was limited and it could reject the appeal without providing any specific grounds, as established in the domestic legislation.

The Committee observes that, pursuant to Act No. 60 of 2013, which was in force during the period of time when the facts of the present case were established, any person who had been discriminated against was entitled to claim compensation covering economic and non-economic losses caused by a discriminatory act. The Committee notes that the same Act indicated that a person, as a victim of discrimination, could submit a complaint to the Equality and Anti-Discrimination Ombud and to the Anti-Discrimination Tribunal. The Committee, however, observes that the State party failed to submit sufficient arguments or evidence regarding the effectiveness of those remedies in respect of the author’s allegations. Firstly, the Committee observes that the State party failed to explain the scope of the alleged remedies, in particular, by not providing any details as to the nature, procedure for requesting or effects of a declaration of the existence of discrimination, including whether such a declaration could be issued with respect to a judicial decision, which in the present case was the decision of the Borgarting Court of Appeal. Secondly, the State party did not specify how compensation would redress the author’s rights under the Convention, in particular taking into account the author’s argument that those rights had been violated because the allegedly discriminatory statement made by the Court of Appeals provided the basis for an extensive and intrusive measure that deprived him of his liberty. Thirdly, the Committee notes that the State party did not explain the effects of a possible decision by the Ombud or the Tribunal based on a complaint submitted by the author. Therefore, the Committee considers that in the circumstances of the present case, the requirements established in article 14 (7) (a) of the Convention have been complied with and that the State party’s arguments under this provision do not constitute an obstacle to declaring the admissibility of the communication.

As the Committee finds no other obstacles to the admissibility of the present communication, it declares it admissible insofar as it raises issues under articles 2 (1) (a), 5 (a) and 6, and proceeds with its consideration of the merits.

The Committee has considered the present communication in the light of all the information made available to it by the parties, in accordance with article 14 (7) (a) of the Convention.

The issues before the Committee are whether the decision of the Borgarting Court of Appeal amounted to discrimination on the grounds of race, colour or national or ethnic origin, in violation of articles 2 (1) (a) and 5 (a) of the Convention, and whether the review by the domestic tribunals amounted to a violation of article 6 of the Convention.

The Committee notes the author’s allegation that the statement by the Borgarting Court of Appeal that his Pakistani background would contribute to making his absconding possible constituted discrimination based on his ethnic origin, taking into account that, other than his skin colour and family history, he had no connection to Pakistan that could validate the Court’s statement, as he was born in Norway and all his close relatives were Norwegian. In that regard, the Committee takes note of the State party’s submission that the Court’s statement must be understood as a reference to his connection to Pakistan, and not to his race, colour, descent or national or ethnic origin. The Committee also takes note of the State party’s assertion that, according to the domestic legislation and jurisprudence, the courts need to analyse the risk of absconding, which among other elements, takes into account the person’s ties to other countries, and that this was what the Borgarting Court of Appeal analysed in its decision of 19 April 2016. The Committee notes the State party’s argument that the Court referred to several other factors in its decision, including the length of the potential imprisonment of the author; the fact that he had a number of assets in Pakistan that made absconding possible; the fact that he had attempted to leave Norway previously; the important impact that his possible absconding could have on the criminal proceedings; and the fact that the criminal activity he was accused of was highly harmful to society.

The Committee recalls that it is not the Committee’s role to review the interpretation of facts and national law made by national authorities, unless the decisions were manifestly arbitrary or otherwise amounted to a denial of justice.²⁷

27. Er v. Denmark (CERD/C/71/D/40/2007), para. 7.2; and Belemvire v. Republic of Moldova (CERD/C/94/D/57/2015), para. 7.2. ↩

The Committee notes that, according to domestic legislation, the prolongation of a pretrial detention is periodically reviewed by the competent courts (see para. 2.2). The Committee observes that, in its decision, the Borgarting Court of Appeal referred to such previous assessments, according to which specific and objective grounds existed for believing that, if released, the author would abscond. In that connection, the Committee takes note of the State party’s affirmation that information in the author’s criminal file indicated that he had family and financial connections in Pakistan. The Committee observes that several documents submitted by the State party indicate that the author indeed had important financial assets and family connections in Pakistan. The Committee takes note of the police report dated 18 December 2014, which stated that, according to evidence found in a raid of the residence of one of the author’s relatives, the author’s family had several accounts in Pakistani banks that received regular transfers of large amounts of money. The Committee also takes note of the affirmation in the same report that there was evidence, including several calls made by the author, showing that he and his family had, either personally or through others, sent money to Pakistan. The Committee takes note, moreover, of the police report dated 1 July 2015, according to which several witnesses in Pakistan affirmed that the author had money and contacts in Pakistan, including an uncle involved in the recruitment of the alleged victims of trafficking, and that his family owned several houses there. The Committee further takes note of the decision issued by the Eidsivating Court of Appeal of 27 October 2015, in which the Court made the same assessment as the Borgarting Court of Appeal in its decision of 16 April 2016, that objective grounds existed for believing that the author would abscond if released, in particular taking into account that he had family connections in Pakistan; that he and his close members of his family owned significant assets in the form of properties and businesses there; and that in the criminal file there was evidence that the author’s family members had made transfers of capital to Pakistan. Furthermore, the Committee takes note of the fact that the Borgarting Court of Appeal referred to other factors to justify the prolongation of the author’s detention, including the long prison term that the author risked; the impact that his absence could have on the proceedings; and the nature of the crimes the author was accused of, including trafficking in persons, which were very harmful for society.

The Committee, recalling its general recommendation No. 31 (2005), recognizes that, in assessing whether a risk of flight exists, domestic courts may take into consideration whether a person has financial or personal ties to other countries. The Committee emphasizes, however, that this assessment of the likelihood of absconding must be based on objective criteria and may not be based on the national or ethnic origin of a person alone. The Committee also expresses concern that the focus of courts on the national or ethnic origin of a person when assessing the risk of flight may indicate racial bias and amount to racial discrimination. The Committee will assess whether the decision to hold a person in pretrial detention on the ground of risk of flight is in conformity with the Convention on a casebycase basis, taking into account the reasoning of domestic courts, as well as all other relevant circumstances.

Concerning the author’s claim that the Supreme Court’s rejection of his appeal was contrary to the obligation to assure effective protection and remedies against any acts of racial discrimination under article 6 of the Convention, the Committee takes note of the State party’s affirmation that the Supreme Court examined the author’s claim of having been a victim of racial discrimination and rejected it based on relevant domestic legislation. The Committee observes that the Supreme Court unanimously decided to reject the author’s appeal. It notes that, although the petitioner disagrees with the conclusion of the Supreme Court, there is nothing in the information before the Committee to indicate that the Court’s decision amounted to a violation of the Convention, in particular taking into account previous assessments that the author had not been a victim of racial discrimination. Accordingly, the Committee cannot conclude that the author’s right to effective protection and a judicial remedy against racial discrimination, as guaranteed by article 6 of the Convention, has been violated.²⁸

28. Pjetri v. Switzerland (CERD/C/91/D/53/2013), para. 7.7. ↩

In the circumstances, the Committee, acting under article 14 (7) (a) of the Convention, considers that the facts before it do not disclose a violation of any of the provisions of the Convention by the State party.