Fatima Andersen v Denmark, UN Doc CCPR/C/99/D/1868/2009 (26 July 2010)
The UN Human Rights Committee has held that to be a 'victim' under the International Covenant on Civil and Political Rights requires the identification of specific consequences of the conduct that forms the basis of the complaint, such consequences specifically affecting the alleged victim.
Further, State Parties to the Covenant are not required to make 'competent authorities' available to determine complaints pursuant to State Party obligations under the Covenant in circumstances where complaints are insufficiently founded and the complainant cannot meet the definition of 'victim'.
Andersen, the author of the communication, claimed to be a victim of her rights by Denmark pursuant to arts 2, 20(2) and 27 of the Covenant.
Andersen, a Danish citizen and Muslim, wears a headscarf in connection with her religion.
The substance of Anderson’s complaint was that a Danish Member of Parliament (the leader of the Danish People's Party) made remarks comparing Muslim headscarves with the Nazi swastika symbol. The remarks were made in the context of a debate concerning the appropriate appearance of Members when speaking at the rostrum in Parliament.
Anderson asserted that the remarks evidenced a ‘pattern of Islamophobic statements amounting to hate propaganda against Muslims in Denmark carried out by a number of leading members of the Danish People’s Party.’ Andersen alleged that these remarks, and other conduct, by Members of Parliament, are influential and productive of hatred towards Muslims in the Danish community.
Exhaustion of domestic remedies
Article 2 of the Optional Protocol requires a prospective author to have 'exhausted all available domestic remedies' before making a communication to the Committee. Various provisions of the Danish Criminal Code were examined by the Committee. The Committee considered that as Andersen had sought, without success, to invoke the most specific section of the Code applicable to her complaint, it would be 'unreasonable' to expect her to then go about seeking to invoke more general provisions. The Committee also seemed to accept Andersen's contention that she was not required to pursue private domestic remedies, such as by bringing an action for defamation. On that basis, the Committee found that domestic remedies had been exhausted.
The Committee noted that a person cannot make a communication under the Covenant 'in theoretical terms' on behalf of a collective interest. Rather,
[a]ny person claiming to be a victim of a violation of a right protected by the Covenant must demonstrate either that a State party has by an act or omission already impaired the exercise of his right or that such impairment is imminent, basing his argument for example on legislation in force or on a judicial or administrative decision or practice.
Denmark had not made any submissions to the Committee directly on point. Andersen relied on Toonen v Australia to establish herself as a victim. Toonen v Australia concerned a communication made by a homosexual man from Tasmania, in relation to legislation criminalising homosexual activity, even between consenting adults in private. In that instance the Committee accepted that, despite the fact that the legislation had not been enforced for some time, Toonen had:
made reasonable efforts to demonstrate that the threat of enforcement and the pervasive impact of the continued existence of the incriminated facts on administrative practices and public opinion had affected him and continued to affect him personally.
With respect to Andersen's communication, however, the Committee was unable to find that the statement by the Member of Parliament 'had specific consequence for her or that the specific consequences were imminent and would personally affect the author'.
The Committee therefore found that Andersen was not a victim for the purposes of the Covenant and the Optional Protocol.
Operation of article 2 of the Covenant
Article 2(3) of the Covenant concerns the obligation of State Parties to ensure that persons claiming to have their rights or freedoms violated are able to have their claims determined by a 'competent authority' of the State, such as a Court. The Committee noted that art 2 can only be invoked in conjunction with alleged contraventions of other articles of the Covenant. Competent authorities of State Parties are not required to deal with 'complaints which are insufficiently founded and where the author has not been able to prove that she was a direct victim of such violations'.
Relevance to the Victorian Charter
This decision may assist persons contemplating making a communication to the Committee to assess whether they have exhausted Australian domestic remedies. The decision can also be used to inform consideration of the nexus that must be shown between infringements of rights protected by the Charter and identifiable effects on specific persons.
The decision is at www2.ohchr.org/tbru/ccpr/CCPR-C-99-D-1868-2009.pdf.
Brendan Wood is a Law Graduate with Allens Arthur Robinson