ANNEX
In conformity with article 14, paragraph 6 (a), of the Convention, the Committee transmitted the communication to the State party on 14 September 2006.
Factual background
Detective Superintendent G. W., a member of the Sinti and Roma minority, wrote an article entitled “Sinti and Roma – Since 600 years in Germany”, which was published in the July/August 2005 issue of the journal of the Association of German Detective Police Officers (BDK), “The Criminalist”. In the October 2005 issue of the journal, a letter to the editor written by P. L., vice-chairman of the Bavarian section of the BDK and Detective Superintendent of the Criminal Inspection of the city of Fürth, was published as a reply to Weiss’ article. The authors indicated that “The Criminalist” was a journal distributed to more than 20,000 members of one of the biggest police associations in Germany. The text of the letter by P. L. reads as follows: “With interest I read the article by colleague W., himself also a Sinti, but I cannot leave this non-contradicted. Even at a time where minority protection is put above everything else and the sins of the Nazi-era still affect ensuing generations, one need not accept everything that is so one-sided. As an officer handling offences against property I have dealt repeatedly with the culture, the separate and partly conspirative way of living as well as the criminality of the Sinti and Roma. We infiltrated the life of criminal gypsies through working groups and also with the help of under-cover agents (“Aussteiger”). We were told by Sinti that one feels like a “maggot in bacon” (“Made im Speck”) in the welfare system of the Federal Republic of Germany. One should use the rationalisation for theft, fraud and social parasitism without any bad conscience because of the persecution during the Third Reich. The references to the atrocities against the Jews, homosexuals, Christians and dissidents who did not become criminal, were considered not relevant. As W. states there are no statistics about the share of criminal Sinti and Roma in Germany. If they existed, he could not have written such an article. But it is sure that this group of people, even if only about 100,000, occupies the authorities disproportionately by comparison. Who for example commits nationwide thefts largely to the disadvantage of old people? Who pretends to be a police officer to steal the scarce savings of pensioners which were hidden for the funeral in the kitchen cupboard or in the laundry locker? Who shows disabled and blind persons tablecloths and opens the door to accomplices? What about the trick with the glass of water and the paper trick? Is it really a prejudice when citizens complain about the fact that Sinti drive up with a Mercedes in front of the social welfare office? Is it not true that hardly any Roma works regularly and pays social insurance? Why does this group separate itself in such a way and for example inter-marries without the registry office? Why are fathers of Sinti children not named to the youth welfare office? (…) Whoever does not want to integrate but lives from the benefits of and outside this society cannot claim a sense of community. My lines do not only reflect my opinion as I learned by talking to many colleagues. They are not only a record of prejudices, generalisations (“Pauschalisierungen”) or accusations but a daily reality of criminal activity. It is totally incomprehensible for me that a police officer who knows about this situation is so partial in his argumentation. His origins excuse him partly and his career deserves praise, but he should stick to the truth.”
The authors claimed that P. L.’s letter contained numerous discriminatory statements against Sinti and Roma. They argue that P. L. used racist and degrading stereotypes, going as far as stating that criminality was a key characteristic of Sinti and Roma. In particular, they noted that the terms “maggot” and “parasitism” were used in the Nazi propaganda against Jews and Sinti and Roma. The authors claim that such a publication fuels hatred against the Sinti and Roma community, increases the danger of hostile attitude by police officers, and reinforces the minority’s social exclusion.
In November 2005, after a public protest organized by the Zentralrat Deutscher Sinti und Roma, the Bavarian Ministry of the Interior suspended P. L. from his function in the police commissariat of Fürth, stating that generally negative statements about identifiable groups of the population, like the Sinti and Roma in the present case, were not acceptable.
On 24 November 2005, the Zentralrat Deutscher Sinti und Roma and R. R. lodged a complaint with the District Attorney of Heidelberg, and on 1 December 2005, the Verband Deutscher Sinti und Roma – Landesverband Bayern and F. R. filed a complaint before the District Attorney of Nürnberg-Fürth. Both complaints were then transferred to the competent authority: the District Attorney of Neuruppin in Brandenburg. The District Attorney of Neuruppin dismissed the first complaint on 4 January 2006 and the second one on 12 January 2006 with the same reasoning, namely that the elements constitutive of the offence under article 130 of the German Criminal Code were missing, refusing to charge P. L. with an offence under the German Criminal Code (GCC).
On 12 January 2006, the authors lodged an appeal with the General Procurator (Generalstaatsanwaltschaft) of the Land of Brandenburg against the two decisions of the District Attorney of Neuruppin. This was dismissed on 20 February 2006.
On 20 March 2006, the authors appealed to the Supreme Court of Brandenburg. Their appeal was rejected on 15 May 2006. As regards the individuals, the Court found the claim to be without merits. As regards the Zentralrat Deutscher Sinti und Roma and Verband Deutscher Sinti und Roma – Landesverband Bayern, the Supreme Court found the claim inadmissible on the grounds that, as associations, their rights could only have been affected indirectly.
The authors argue that, since the judicial authorities refused to initiate criminal proceedings, German Sinti and Roma were left unprotected against racial discrimination. By so doing, the State party would be tolerating a repetition of such discriminatory practices. The authors highlight a similar case involving discriminatory public statements against Jews, in which the Supreme Court of the Land of Hessen had stated that, in the past, the terms “parasite” and “social parasitism” had been used maliciously and in a defamatory way against Jews, and held that such public statements denied members of a minority the right to be considered as equals in the community.
Additional comments by the parties
By submissions dated 31 May 2007 and 16 November 2007, the State party generally reiterated the points made in the initial submission. In particular, it states that article 130 of the GCC has been successfully used in the past to act against instances of extreme right-wing extremist propaganda. By submission of 27 June 2007, the complainants replied to the State party’s comments, restating the arguments previously offered.
Issues and proceedings before the Committee
Before considering any claims contained in a petition, the Committee on the Elimination of Racial Discrimination must, in accordance with rule 91 of its rules of procedure, decide whether or not it is admissible under the Convention.
The Committee notes that two legal entities are among the authors of the complaint: the Zentralrat Deutscher Sinti und Roma and the Verband Deutscher Sinti und Roma – Landesverband Bayern. The Committee takes note of the State party's objection that, a legal person as opposed to an individual or a group of individuals is not entitled to submit a communication or to claim victim status under article 14, paragraph 1. It equally notes the authors’ argument that the organizations submit the complaint on behalf of their members, as “groups of individuals” of the German Sinti and Roma community, and that their own rights are harmed by the statements in the impugned article. The Committee does not consider the fact that two of the authors are organisations to be an obstacle to admissibility. Article 14 of the Convention refers specifically to the Committee's competence to receive complaints from “groups of individuals”, and the Committee considers that, bearing in mind the nature of the organisations’ activities and the groups of individuals they represent, they do satisfy the “victim” requirement within the meaning of article 14(1).6
- See Communication No. 30/2003, The Jewish community of Oslo et al v. Norway, opinion of 15 August 2005, para. 7.4. ↩
On the issue of exhaustion of domestic remedies, the Committee notes that the State party argues that the complainants failed to lodge an appeal with the Federal Constitutional Court. The authors in turn maintain that such an appeal would have no prospect of success and refer to the established jurisprudence of the Court. They argue, and the State party concedes, that individuals have no right under German law to face the State to initiate criminal prosecution. The Committee has previously held that a petitioner is only required to exhaust remedies that are effective in the circumstances of the particular case.7 It follows that, with the exception of W., the petitioners have fulfilled the requirements of art. 14(7)(a).
- See Communication No. 11/1998, Miroslav Lacko v. Slovak Republic, opinion of 9 August 2001, para. 6.2; Communication No. 13/1998, Anna Koptova v Slovak Republic, opinion of 8 August 2000, para. 6.4. ↩
As regards W., the Committee notes that he did not file criminal charges nor was a party to the proceedings before the Brandenburg Supreme Court. Thus, the complaint is inadmissible with respect to W. because of non-exhaustion of domestic remedies.8
- See Communication No. 22/2002, POEM and FASM v. Denmark, decision of 17 March 2003, para. 6.3. ↩
As regards article 4(c) of the Convention, the Committee accepts the State party’s contention that the BDK is a professional union and not a State organ, and that P. L. wrote the impugned letter in his private capacity. The Committee thus finds this claim inadmissible.
In light of the above, the Committee declares the case admissible inasmuch as it relates to articles 4(a) and 6 of the Convention and proceeds to examine the merits.
On the merits, the main issue before the Committee is whether the provisions in the GCC provide effective protection against acts of racial discrimination. The petitioners argue that the existing legal framework and its application leave Sinti and Roma without effective protection. The Committee had noted the State party’s contention that the provisions of its Criminal Code are sufficient to provide effective legal sanctions to combat incitement to racial discrimination, in accordance with article 4 of the Convention. It considers that it is not the Committee’s task to decide in abstract whether or not national legislation is compatible with the Convention but to consider whether there has been a violation in the particular case.9 The material before the Committee does not reveal that the decisions of the District Attorney and General Prosecutor, as well as that of the Brandenburg Supreme Court, were manifestly arbitrary or amounted to denial of justice. In addition, the Committee notes that the article in “The Criminalist” has carried consequences for its author, as disciplinary measures were taken against him.10
The Committee on the Elimination of Racial Discrimination, acting under article 14, paragraph 7, of the Convention on the Elimination of All Forms of Racial Discrimination, is of the view that the facts before it do not disclose a violation of articles 4(a) and 6 of the Convention.
Notwithstanding, the Committee recalls that P. L.’s article was perceived as insulting and offensive not only by the petitioners, but also by the prosecutorial and judicial authorities who dealt with the case. The Committee wishes to call the State party’s attention to (i) the discriminatory, insulting and defamatory nature of the comments made by P. L. in his reply published by “The Criminalist” and of the particular weight of such comments if made by a police officer, whose duty is to serve and protect individuals; and (ii) General Recommendation 27, adopted at its fifty-seventh session, on discrimination against Roma. [Adopted in English, French, Spanish and Russian, the English text being the original version. Subsequently to be issued also in Arabic and Chinese as part of the Committee’s annual report to the General Assembly.]