CERD/C/82/D/48/2010

International Convention on the Elimination of All Forms of Racial Discrimination

Distr.: General

10 May 2013

Original: English

C ommittee on the E limination of Racial Discrimination

Communication No. 48/2010

Opinion adopted by the Committee at its eighty-second session,11 February to 8 March 2013

Submitted by:TBB-Turkish Union in Berlin/Brandenburg (represented by counsel, Ms. Jutta Hermanns)

Alleged victim:The petitioner

State Party:Germany

Date of the communication:12 July 2010 (initial submission)

Date of the present decision:26 February 2013

Annex

Opinion of the Committee on the Elimination of Racial Discrimination under article 14 of the international Convention on the Elimination of All Forms of Racial Discrimination (eighty-second session)

concerning

Communication No. 48/2010 *

Submitted by:TBB-Turkish Union in Berlin/Brandenburg (represented by counsel, Ms. Jutta Hermanns)

Alleged victim :The petitioner

State Party :Germany

Date of the communication :12 July 2010 (initial submission)

The Committee on the Elimination of Racial Discrimination, established under article 8 of the International Convention on the Elimination of All Forms of Racial Discrimination,

Meeting on 26 February 2013,

Having concluded its consideration of communication No. 48/2010, submitted to the Committee on the Elimination of Racial Discrimination by the TBB-Turkish Union in Berlin/Brandenburg under article 14 of the International Convention on the Elimination of All Forms of Racial Discrimination,

Having taken into account all information made available to it by the petitioner of the communication, its counsel and the State party,

Adopts the following:

Opinion

1.The petitioner for the communication, dated 11 May and 13 July 2010, is an association, the TBB-Turkish Union in Berlin/Brandenburg, represented, in accordance with paragraph 9 of its by-laws by the spokesperson of the Board of Directors and an additional member of the Executive Board of Directors. According to paragraph 3 of its by-laws, the aim of the association is threefold: (1) to contribute to the peaceful coexistence and solidarity of all persons in Berlin and Brandenburg and to understanding among the peoples; (2) the furtherance of equal and non-discriminatory cohabitation and cooperation between Germans and Non-Germans, in particular persons of Turkish heritage in Berlin and Brandenburg; (3) education and counselling on issues of consumer protection in connection with protection against discrimination. The petitioner pursues its aims with the following measures: conduct of events, conferences, forums, working groups on different topics, counselling of institutions and authorities on the topic of integration policy, dissemination about issues of concern to persons of Turkish heritage, support for persons in Berlin and Brandenburg on legal and social questions through counselling, courses and seminars, as well as the holding of cultural events, discussions etc. and counselling in and out of court against discrimination. The petitioner claims that its members and the association itself are victims of a violation by Germany of article 2, paragraph 1(d), article 4, paragraph (a), and article 6 of the Convention on the Elimination of All Forms of Racial Discrimination. It is represented by counsel, Ms. Jutta Hermanns.

The facts as submitted by the petitioner

2.1The German cultural journal Lettre International (2009 fall edition, No. 86) published an interview with Mr. Thilo Sarrazin, the former Finance Senator of the Berlin Senate (from 2002 to April 2009, Social Democratic Party) and member of the Board of Directors of the German Central Bank (from May 2009), entitled “Class instead of Mass: from the Capital City of Social Services to the Metropolis of the Elite”. In this interview, Mr. Sarrazin expressed himself in a derogatory and discriminatory way about social “lower classes”, which are “not productive” and would have to “disappear over time” in order to create a city of the “elite”. In this context, he stated, inter alia:

“[…] The city has a productive circulation of people, who work and who are needed, be they part of the administration or of the ministries. Beside them, there are a number of people, about 20% of the population, who are not economically needed. They live off social welfare (Hartz IV) and transfer income; on a federal level this segment is only 8-10%. This part of the population needs to disappear over time. A large number of Arabs and Turks in this city, whose numbers have grown through erroneous policies, have no productive function, except for the fruit and vegetable trade, and other perspectives will probably not develop either […].

[…] One must stop talking about “the” migrant. We must look at the different migrant groups. […]

With the core group of people from Yugoslavia, however, one sees a more “Turkish” problem, the Turkish group and the Arabs ‘slope’ dramatically [in terms of success]. Even in the third generation, a lot of them lack any reasonable knowledge of German. Many of them don’t even finish school and an even smaller number make it to the college entrance exam […].

[…] There is another problem: the lower the class, the higher the birth rate. The birth rates of the Arabs and Turks are two to three times higher than what corresponds to their overall proportion in the population. Large segments are neither willing nor able to integrate. The solution to this problem can only be to stop letting people in, and whoever wants to get married should do it abroad. Brides are constantly being supplied: the Turkish girl here is married to someone from Anatolia; the young Turkish man gets a bride from an Anatolian village. It’s even worse with the Arabs. My idea would be to generally prohibit influx, except for highly qualified individuals and not provide social welfare for immigrants any more.

[…] It is a scandal when Turkish boys don’t listen to female teachers because of their culture. Integration is an accomplishment of those who integrate. I don’t have to accept anyone who doesn’t do anything. I don’t have to accept anyone who lives off the State and rejects this very State, who doesn’t make an effort to reasonably educate their children and constantly produces new little headscarf girls. That is true for 70% of the Turkish and for 90% of the Arab population in Berlin. Many of them don’t want any integration, they want to live according to their own rules. Furthermore, they encourage a collective mentality that is aggressive and ancestral […].

[…] The Turks are conquering Germany just like the Kosovars conquered Kosovo: through a higher birth rate. I wouldn’t mind if they were East European Jews with about a 15% higher IQ than the one of Germans.

[…] If the Turks would integrate themselves so that they would have comparable success in the school system like other groups, the topic would become moot. […] However, it does not happen like that. Berliners always say that they have a particularly high number of foreigners. This is wrong. The percentage of foreigners in Munich, Stuttgart, Cologne or Hamburg is much higher, but the foreigners there have a smaller percentage of Turks and Arabs and they are of more diverse origin.

[…] We have to completely restructure family policies: do away with payments, above all to the lower class. I remember a report in the newspaper “Die Zeit” that stated that every Monday morning, the city cleaning services clean 20 tons of leftover lamb from Turkish grill parties in the Tiergarten - this is not a satire. The Neukölln Mayor Buschkowsky spoke about an Arab woman who was having her sixth child to be able to get a bigger apartment through the social welfare law (Hartz IV). We have to say farewell to these structures. One has to assume that human ability is to some extent socially contingent and to some extent hereditary. The road we are following leads to a continuous decrease in the number of intelligent high performers due to demographic reasons. One can’t build a sustainable society that way...

[…] If 1.3 million Chinese are just as intelligent as Germans, but more industrious and in the foreseeable future better educated while we Germans take on ever more of a Turkish mentality, we’ll have a bigger problem […]”

2.2On 23 October 2009, the petitioner, “as the interest group of the Turkish citizens and citizens with Turkish heritage of Berlin and Brandenburg” filed a complaint of criminal offence against Mr. Sarrazin to the Office of Public Prosecution. It claimed, inter alia, that Mr. Sarrazin’s statements constituted incitement of the people (Volksverhetzung), pursuant to article 130 of the Criminal Code, in particular because “Turks and Arabs were presented as inferior and denied a right to existence in our society”.

2.3Mr. Sarrazin’s statements were reviewed with respect to article 130 (incitement to hatred) and article 185 (insult) of the German Criminal Code. On 16 November 2009, the Office of Public Prosecution established that there was no criminal liability for Mr. Sarrazin’s statements and terminated the proceedings on the basis of article 170 (2) of the German Code of Criminal Procedure. The Office of Public Prosecution based its decision on article 5 of the Basic Law (freedom of expression) and concluded that incitement to hatred against a segment of the population vs an individual, was not recognized and that Mr. Sarrazin’s statements are considered as a “contribution to the intellectual debate in a question that [was] very significant for the public […].”

2.4On 21 December 2009, the petitioner submitted a written complaint, challenging the decision of the Office of Public Prosecution. On 24 February 2010, the Prosecutor General informed the petitioner that it was not entitled to file a formal complaint against the decision of the Office of Public Prosecution, because it was not the “injured party” within the meaning of article 172 (1), sentence 1, of the Code of Criminal Procedure. The Prosecutor General, however, reviewed the facts of the case in his supervisory role and decided that the Office of Public Prosecution in Berlin had correctly terminated the proceedings. He established that Mr. Sarrazin’s comments were made in the context of a critical discussion about; inter alia, structural problems of an economic and social nature in Berlin.

2.5In addition to the petitioner, two individual members of the petitioner, Ms. C.B. and Mr. S. Y. filed a complaint against Mr. Sarrazin to the Office of Public Prosecution. These proceedings were also terminated. The complaints against the termination of investigative proceedings against Mr. Sarrazin were rejected in an identical way by the Prosecutor General. Due to personal reasons, these individuals have not taken any further legal action.

2.6Domestic remedies have been exhausted with the termination of the investigative proceedings on the basis of article 170 (2) of the Code of Criminal Procedure. Further legal action is not available and the six-month deadline for the submission of an individual communication to the Committee should be counted from 16 November 2009, despite the review of the complaint by the Prosecutor General in his supervisory role.

2.7According to article 172 of the Code of Criminal Procedure, proceedings aimed at forcing the public prosecution service to initiate criminal charges are not available to the petitioner as a union or association. For the same reason, it cannot file a constitutional complaint to the Federal Constitutional Court. According to the decision of the Federal Constitutional Court of 22 June 2006 (the umbrella organization in the Sinti und Roma case), only individual members of a group, not the association itself, can be affected in their human dignity within the meaning of article 130 of the Criminal Code. An institution cannot initiate legal proceedings to obtain criminal prosecution, since only natural persons can invoke human dignity.

2.8With regard to the victim status pursuant to article 14, paragraph 1, of the Convention, the petitioner argues that the association’s aim is the conduct of events, conferences, forums, working groups on various topics, counselling of institutions and authorities on the topic of integration policy, dissemination about issues of concern to persons of Turkish heritage, support for persons in Berlin and Brandenburg on legal and social questions through counselling, courses, seminars, as well as the holding of cultural events, discussions etc. and counselling in and out of court against discrimination (see 1.1 above). The association represents persons of Turkish heritage and works towards equality and non-discrimination in society, in particular for persons of Turkish heritage. In line with the Committee’s jurisprudence in communications No. 28/2003, Documentation and Advisory Centre on Racial Discrimination v. Denmark, No. 30/2003, Jewish community of Oslo v. Norway and No. 38/2006, Central Council of German Sinti und Roma et al. v. Germany, TBB, as a legal entity representing the interests of the Turkish citizens and citizens of Turkish heritage of Berlin and Brandenburg, is a victim within the meaning of article 14, paragraph 1, of the Convention. Through the negative value judgments, its integrity as a union of migrants with Turkish background, and its work are affected. There is a danger that the petitioner itself and its members could become victims of criminal acts due to the climate of negative value judgements and blanket statements expressed by Mr. Sarrazin. In this context, the organization received two e-mails on 9 and 10 October 2009, expressing support for Mr. Sarrazin’s statements and for the fact that statements about immigrants and foreigners should be protected by freedom of expression. The larger right-wing extremist parties, such as the German National Democratic Party (National Demokratische Partei Deutschlands, NPD), German People’s Union (Deutsche Volksunion, DVU) and the Republicans, have all sided with Mr. Sarrazin. The petitioner notes that even though Mr. Sarrazin cannot be directly held responsible for the fact that the right-wing extremist parties sided with him, his statements are on a level that abetted the goals of these parties. The rights of its members, as well as of the association representing these individuals and groups of individuals, have been violated by the decision of the Office of Public Prosecution in Berlin, confirmed by the Prosecutor General, to terminate the proceedings against Mr. Sarrazin due to the fact that his statements were not liable to criminal prosecution.

The complaint

3.1The petitioner claims to be a victim of a violation by Germany of article 2, paragraph 1(d), article 4, paragraph (a) and article 6 of the Convention on the Elimination of All Forms of Racial Discrimination, as the State party failed to provide protection under its Criminal Code against Mr. Sarrazin’s racially discriminatory and insulting statements directed against the petitioner as a group of individuals of Turkish heritage and as the representative of this group.

3.2The petitioner recalls the Committee’s concluding observations,in which it recommended that the State party consider adopting a clear and comprehensive definition of racial discrimination in its national legislation. The Committee also recommended that the State party broaden its approach to combating racial discrimination with a view to countering such discrimination in all its forms, including expressions of racist prejudices and attitudes. It submits that the degrading and discriminatory statements made by Mr. Sarrazin are connected to distinct features of the Turkish population. The Turkish population was presented as a group of individuals who live at the expense of the State and due to their ascribed negative characteristics and ways of behaviour, do not have the right to be in Germany.

3.3The petitioner argues that since Mr. Sarrazin is the former Finance Senator of the Berlin Senate and member of the Board of Directors of the German Central Bank, his authority leads to the perception that his statements are based on proven facts and, therefore, “the truth”. It adds that the effects of Mr. Sarrazin’s statements are to enhance prejudices of the majority towards the Turkish population and individuals of Turkish heritage, including their children. The petitioner submits that such racially discriminatory statements are not covered by the right to freedom of expression because the group concerned has a right to live without prejudices and general intolerance, and the freedom to exercise their rights should be respected. The statements made by Mr. Sarrazin should be assessed in the framework of the special social context of Germany, adding to the general pattern of incitement to racial hatred against the Turkish population, which in the circumstances can be even more dangerous than openly flaunted racism, which is easier to combat. With the termination of the investigation against Mr. Sarrazin, the petitioner claims that it was arbitrarily denied protection against racially discriminatory statements directed against it as a group of individuals of Turkish heritage and as the representative of this group and the propagation thereof represents a violation of articles 2 (1 (d), 4, (a) and 6.

3.4With regard to article 4 (a), of the Convention, the petitioner notes that an effective criminal prosecution had not taken place when the Public Prosecution refused to introduce criminal proceedings against Mr. Sarrazin and the State party implicitly tolerates a repetition of similar statements. Therefore, in violation of article 6 of the Convention, effective protection has been denied.

State party’s observations on admissibility and merits

4.1On 23 December 2010, the State party submits its observations on admissibility and merits. The State party recalls the facts and adds that, at the time of the interview, Mr. Sarrazin was working on his book “Germany is self-destructing”, which was published in August 2010. In his book, Mr. Sarrazin gave an opinion on the situation of Germany. He predicted future developments concerning poverty and inequality, the job market, motivation to work, equality in education, the demographic development, immigration and integration. In all these areas, he made direct and controversial statements.

4.2The State party notes that it does not in any way share or condone Mr. Sarrazin’s views as expressed in his interview with the Lettre international, however it submits that this does not mean that it was under an obligation to prosecute Mr. Sarrazin for uttering them. The State party submits that the Committee should find the communication inadmissible, as the petitioner lacks standing to submit a communication, pursuant to article 14, paragraph 1, of the Convention in conjunction with article 91 (b) of the Committee’s Rules of Procedure. Being a legal entity, the petitioner is not in a position to claim that it is the victim of a violation of any of the rights set forth in the Convention. The Turkish Union in Berlin-Brandenburg is not directly affected in its own rights by the statements of Mr. Sarrazin. The integrity of the complainant as a legal entity is not a right that can be violated. The petitioner does not mention any concrete influence of the statements in its work. It notes that in this respect, the case differs from the facts in communication No. 30/2003 (Jewish Community of Oslo et al v. Norway). In that case, on a march in commemoration of the Nazi leader Rudolf Hess, a racially discriminating speech was made. As a result of this, there was increased “Nazi” activity, and a marked increase in violence against blacks and political opponents. This understandably instilled fear and had a serious influence on the Jewish community and its work. In the present communication, no effects of the interview can be noted that would make the petitioner a “victim” and the e-mails the petitioner received after the interview do not amount to such serious adverse effect.

4.3The State party acknowledges the possibility that an association can act on behalf of a member or a group of its members, provided it is authorized to do so. However, the State party submits that even if all or some members of the petitioner might be victims, the petitioner itself is not authorized to submit an individual communication and the bylaws of the petitioner do not provide any basis for such authorization. Furthermore, the petitioner does not provide any justification as to why it is acting on behalf of its members without due authorization. Although the Turkish Union supports equitable co-existence in society without discrimination, it only gives legal support against discrimination and the members do not join the organization to be legally represented.

4.4With regard to the merits, the State party submits that the goal of German policy is to create a climate where racist statements and crimes are proscribed and thus deterred. Racially motivated crimes are prosecuted and punished with determination. On the other hand, freedom of speech is even applicable to information or ideas that offend, shock or disturb the State or any sector of the population. With regard to the petitioner’s claim of a violation of article 4 (a) of the Convention, the State party notes that the focus of this provision is on legislative action and that the provisions of the German Criminal Code (GCC) are sufficient to provide effective legal sanctions to combat incitement to racial discrimination. The four categories of misconduct mentioned in article 4(a) of the Convention are penalized: (1) dissemination of ideas based upon racial superiority or hatred; (2) incitement to racial hatred; (3) acts of violence against any race or group of persons of another colour or ethnic origin; and (4) incitement to such acts. It explains that in order to find someone guilty of a crime under § 130 GCC, the existence of each required element of the crime must be established beyond reasonable doubt. By finding that, in this case, the prerequisites of § 130 GCC were not fulfilled, the State party did not violate the Convention. It notes that the order of termination of 16 November 2009 by the Office of Public Prosecution held that the statements did not reach the threshold of intensity which would amount to incitement. The interview – although polemical - did not call for particular actions such as violence or arbitrary measures. The Office of Public Prosecution clearly stated that the language used in the interview was inappropriate; however, it did not brand segments of population as “inferior” and the right to exist as equally worthy persons was not contested. Moreover, the statements did not qualify as an insult (§ 185 GCC), considering the context and the freedom of speech. The Prosecutor General shared this point of view in his decision of 22 February 2010. He added that the statements were made in the context of a critical discussion of economic and social problems in Berlin. There were no indications that Mr. Sarrazin intended to foment hostility against the groups described.

4.5The State party further maintains that the decisions by the criminal prosecution authorities were in conformity with article 4 (a) of the Convention. They were neither manifestly arbitrary nor did they amount to a denial of justice. As a consequence of the interview, there were several complaints from organizations and individuals of different nationalities; however the authorities concluded that considering the context, purpose and content of the statements, an offence of incitement to racial or ethnic hatred could not be established. It further notes that the context of the interview shows that Mr. Sarrazin expressed his personal views rather than giving any official or semi-official view. There was no indication that Mr. Sarrazin intended to incite hatred against certain segments of the population. His statement was neither objectively suitable nor subjectively determined to engender and strengthen an emotionally increased hostile attitude against people of Turkish and Arab origin, nor did it include any indication that violent or arbitrary measures should be used against those groups. Hatred based on intolerance was not incited, promoted or justified. There were a lot of critical reactions to Mr. Sarrazin’s statements and many people living in Germany stated in public that they did not share his point of view. In August 2010, Mr. Sarrazin published his book “Germany is self-destructing”, which included similar statements. Many important personalities took public positions against the views put forward in the book. Chancellor Angela Merkel called Mr. Sarrazin’s statements “stupid” and the Social Democratic Party, to which Mr. Sarrazin belongs, initiated a procedure for exclusion from the Party. This discussion showed that a majority of the German population did not share the opinion of Mr. Sarrazin and it is not true that a main part of the society was encouraged and confirmed in their latent racism because of the interview and the decisions to terminate the criminal investigations. The State party submits that there was no increased risk for the petitioner or its members of becoming victims of future criminal acts. Rather, as a consequence of the interview, the discussion on how to improve the situation of immigrants and how to promote their integration has gained welcome prominence.

4.6With regard to the alleged violation of article 6 of the Convention, the State party notes that effective criminal prosecution of racist acts is generally ensured by the principle of mandatory prosecution. Although the petitioner was not allowed to lodge a complaint and was not entitled to appeal because it was not a directly aggrieved party, the Prosecutor General in his supervisory role scrutinized the decision of the Office of Public Prosecution.

4.7With regard to the alleged violation of article 2(1(d) of the Convention, the State party notes that any dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination as well as all acts of violence or incitement to such acts against any race or group of persons of another ethnic origin constitute an offence punishable by law. In the instant case, the prosecution could not establish that Mr. Sarrazin intended to cause any disadvantages for the segments of the population mentioned in the interview. This being so, the importance of freedom of speech precluded the authorities from bringing criminal charges against him.

Petitioner’s comments on the State party’s observations on admissibility and merits

5.1On 7 March 2011, the petitioner submitted its comments on the State party’s observations and notes that in German, the terms such as “supply a bride” or “produce headscarf girls” have deeply degrading and contemptuous connotations. The petitioner notes, as the State party demonstrated, that the statements were subsequently repeated in Mr. Sarrazin’s book published in August 2010, and are an expansion of the statements found in the present complaint. In the debates following the book’s publication, contrary to the State party’s observation, it emerged that a majority of the German population agreed with Mr. Sarrazin’s racist statements, and as a consequence verbal and physical attacks against immigrants increased. According to studies, Islamophobic attitudes during the Sarrazin debate were assessed to be held by 55% of the population and social scientists who publicly criticized Mr. Sarrazin received death threats and hundreds of hate e-mails. The petitioner disagrees with the State party and notes that Mr. Sarrazin’s statements in the interview led to public vilification and debasement of “Turks”, “Arabs” and Muslims and it became socially acceptable to have these types of opinions.

5.2With regard to the admissibility, the petitioner recalls the Committee’s jurisprudence and notes that it represents the Turkish community and as a consequence of Mr. Sarrazin’s statements, all “Turks” have been vilified through insulting and racist statements. The petitioner therefore notes that all members of the ethnic group “Turks” are victims or potential victims in the sense of article 14 of the Convention. It notes that the increase in racial hatred in society has a direct consequence on the mandate of the petitioner whose work is to promote a climate of mutual respect and of freedom from discrimination. Furthermore, it is not necessary to have been subjected to a physical attack to become a victim under the Convention. Referring to the Committee’s jurisprudence, the petitioner submits that, in accordance with its by-laws it supports its members against discrimination in and outside court and that the by-laws of the association can be interpreted to the effect that the petitioner should take any necessary action on behalf of its members to fight against discrimination and support them when they are victims of discrimination. Its two members, who are listed by name, decided not to continue proceedings out of fear of verbal attacks, abuses or threats in public, as even well-known persons and academics were victims of such abuses.

5.3.With regard to the merits, the petitioner recalls that Mr. Sarrazin, as a former finance senator of Berlin and thereafter Board member of the German Central Bank, should be considered as a State party official. Even if he did not make the statements in his official capacity, the State party should be obliged to prohibit such statements. As a consequence of the publication of his book, Mr. Sarrazin voluntarily resigned from the Board of the German Central Bank, however only after receiving an increase in his pension. The petitioner reiterates that it considers articles 2, 4 and 6 to have been violated, as the authorities narrowly interpreted the domestic legislation, contrary to other cases concerning similar statements made by right-wing extremists against Jews. This amounts to unequal treatment. It also notes the statement of the right-wing extremist National Democratic Party (NPD), which stated that after the dismissal of the investigative process against Mr. Sarrazin, it will be difficult to sentence members of the NPD on grounds of incitement to ethnic hatred. Lastly, no other domestic remedies were available to the petitioner.

Further observations by the State party on admissibility and merits

6.1On 1 June 2011, the State party submitted further observations on admissibility and merits and compares the present communication with communication No. 38/2006. The State party reiterates that the petitioner does not become a victim pursuant to article 14, paragraph 1, because of its nature or activities. It notes that there are important differences between the petitioner and the petitioner in communication No. 38/2006, as the Central Council of German Sinti and Roma is the biggest and most important organization representing Sinti and Roma in Germany and there are regional groups all over the country. It exerts permanent influence in all political questions regarding Sinti and Roma and therefore has the authority to speak for the group it represents. In contrast, the petitioner criticized Mr. Sarrazin’s statements about “Turks” and “Arabs” without authorization to speak for these groups in general. The petitioner’s activity is restricted to the region of Berlin-Brandenburg and it represents only 26 Turkish organizations and many other Turkish and Arab organizations in the communities of Berlin and Brandenburg have no connection with the petitioner. Moreover, pursuant to rule 91 (b), of the Committee’s rules of procedure, the submission on behalf of the alleged victim(s) without authorization is only allowed in exceptional cases and the only reason why Ms. C.B. and Mr. S.Y. did not submit their communication to the Committee is because they had failed to exhaust domestic remedies. It submits that their fear of hostilities and attacks appears to be exaggerated, as their criminal complaint did not have such consequences and there was no reason to assume that the continuation of the proceedings would change that.

6.2On the merits, the State party reiterates that it has noted Mr. Sarrazin’s statements with great concern and that it disapproves of his opinion and welcomes the protests lodged against the statements from all sectors of society. Nevertheless, the State party reiterates that Mr. Sarrazin’s statements are protected by the freedom of speech and expression, which is guaranteed under German Basic Law. As his statements cannot be classified as hate speech, they are not punishable under criminal law. It notes that Mr. Sarrazin talked about his personal views and did not advocate for particular action such as violence or arbitrary measures against certain segments of the population, such as “Turks” and “Arabs”, and although he made negative statements about them, he did not express racial hatred. Referring to the jurisprudence of the European Court of Human Rights, the State party submits that the domestic authorities have the advantage of evaluating the facts and assessing Mr. Sarrazin’s statements, and therefore their decisions should be scrutinized only insofar as they may have infringed rights and freedoms of the European Convention on Human Rights. During the procedure for exclusion from the Social Democratic Party, to which Mr. Sarrazin belongs, he issued a declaration on 21 April 2011 clarifying that he did not want to discriminate against any groups but wanted to underline the necessity of integration of immigrants.

6.3The State party further submits that punishment for the expression of a personal opinion is one of the greatest encroachments on the freedom of expression and criminal law and should be used only as a last resort. Mr. Sarrazin did not express any form of hatred against Turks and Arabs, nor did he say that he regards them as inferior. His statement is not hostile and does not advocate for hostility or violence. With regard to the consequences of Mr. Sarrazin’s statement, the State party notes that the petitioner’s description is exaggerated and partial. It notes that, even if true, it is not a consequence of Mr. Sarrazin’s statement or book. The State party argues that there is no indication that the number of attacks against immigrants increased after Mr. Sarrazin’s statement. The State party observes that the various figures the petitioner puts forward are not comparable; there may have been an increase in negative attitudes against Muslims but not all of these are tantamount to racial discrimination and there is no indication that they increased after Mr. Sarrazin’s statements. With regard to the attacks against immigrants, death threats and hate mails against social scientists, the State party assures the Committee that every offence is criminally prosecuted and that there is no need to punish Mr. Sarrazin, as he did not cause or advocate for these offences.

Petitioner’s further comments

7.1On 8 January 2012, the petitioner submits that it is not a quantifiable number of victims that determines the victim status of the petitioner but the way the acts were committed. The petitioner is an umbrella organization for persons of Turkish descent and represents a number of individuals and 27 member organizations. With regard to issues of migration and integration, the petitioner is the most visible and attentively heard voice in public and supports an independent project against all forms of discrimination. On these grounds it is entitled to represent the demographic group that has become a victim of a violation of the Convention. With regard to the fear of Ms. C.B and Mr. S.Y., the petitioner notes that it is not hypothetical, as a Social Democratic City Council member, Mr. D., has received a number of death threats since 17 May 2011 further to his demand that statements such as Mr. Sarrazin’s be categorized as incitement to ethnic hatred. It further observes that the police notified the petitioner on 21 November 2011 that it is on the list of the National Socialist Underground (NSU), as supposed enemies of Germany. The NSU is responsible for at least eight murders of individuals originally from Turkey. The public therefore considers that the petitioner represents persons from Turkey living in Germany.

7.2On the merits, the petitioner reiterates its previous submissions and reiterates that in light of the domestic jurisprudence, Mr. Sarrazin’s statements would have been treated differently if he had denigrated the population group of “Jews”. Mr. Sarrazin’s explanatory statement in the exclusion proceedings of the Social Democratic Party was demanded of him in order to prevent his exclusion and in order that criminal liability of racist incitement should not depend on a claim made two years after the initial statement. In domestic criminal proceedings, the motivation to incitement of ethnic hatred is an inner attitude, measured objectively by actions and not by statements of the perpetrator.

8.1On 20 January 2012, the petitioner submitted an amicus curiae brief by the German Institute for Human Rights (GIHR). GIHR notes that the term “racism” is often used in the context of organized right-wing extremism only. This perception has been criticized by the Committee and other international bodies. It notes that some prominent public figures supported Mr. Sarrazin and that he and the Social Democratic Party received a great number of approving letters and emails. Right-wing extremists espoused Mr. Sarrazin’s positions. In the internal sanction procedure by the Social Democratic Party, of which Mr. Sarrazin is a member, a scientific opinion was produced which described his statements in the interview as racist. The fact that the party procedure did not lead to his exclusion was met equally with criticism and approval. After the publication of Mr. Sarrazin’s book, he was presented as a political realist who breaks taboos on integration and immigration policy. In a number of magazines, newspapers and television shows, the alleged intellectual, social and character deficits of the Muslim population were discussed in a generalized fashion. The labels “Turks” or “Arabs” are applied as synonyms for Muslims. Occasionally, even public office-holders took up Mr. Sarrazin’s positions and thereby contributed to the stigmatization and stereotyping of Muslims in Germany. The debates considerably affected the climate in Germany, this included that persons who publicly criticized Mr. Sarrazin received hate mails and death threats and were ridiculed on internet blogs. GIHR also refers to an open letter to the President of prominent German Muslims, in which they expressed their concern at the current atmosphere and note that in their daily lives, they are confronted with hostility.

8.2GIHR observes that freedom of expression is a pivotal human right and that high thresholds must be put on restrictions of freedom of expression. It observes that one of the main functions of freedom of expression stems from the need to protect the criticism of power. However, this does not require that it be interpreted in a way which would protect racist statements against minorities. It notes that article 4 (a) of the Convention stipulates that the dissemination of racist ideas be made a punishable offence, which is implemented in article 130 (1) (2) of the German Criminal Code (GCC). GIHR notes the domestic case law, according to which the Federal Constitutional Court stressed repeatedly that when determining the application of article 130 of the GCC, the right to freedom of expression must be weighed on a case-by-case basis against the legally protected interest that is affected by the expression of the respective opinion of the other. However, the Court has also established that in the case of an assault on human dignity, freedom of expression must yield to human dignity. The notion of human dignity prohibits making a person the mere object of the State or subjecting the person to treatment which fundamentally calls into question his/her quality as a human being. Assaults on human dignity include, for instance, degradation, stigmatization or social exclusion and other forms of conduct that deny the affected person’s right to respect as a human being.

8.3GIHR notes that Mr. Sarrazin’s statements in the relevant parts of the interview meet all the criteria of racist ideas and an assault on human dignity. Racist ideas are characterized by their calling into question the individuality of human beings and thus also their human dignity. It notes that on the basis of their content, linguistic style and terminology, Mr. Sarrazin’s statements display parallels to the racial biology literature of the 19th and early 20th century. Mr. Sarrazin separates the population into “us” and “them”, in which he includes “Turks” and “Arabs”, to whom he attributes negative characteristics and conduct. He misuses the term “Turkish” and applies it as a synonym for an established expression with a negative meaning (“with respect to the core group of Yugoslavs, you can see “Turkish” problems”). Mr. Sarrazin’s statements ridicule and degrade people (“no productive function except for the vegetable trade”) and simultaneously, in a belligerent tone, they fan fear (“the Turks are conquering Germany in the same way as the Kosovars conquered the Kosovo: by way of higher birth rates”). He refers to them as if they were mass-produced goods (“permanently brides are supplied, “Arabs” and “Turks” constantly produce little headscarf girls”). GIHR notes that this rhetoric denies the affected persons, including children, the right to respect as human beings.

8.4GIHR notes that the identity of the person who made the statements and the type of magazine in which it is published are irrelevant for considerations under article 130 of the GCC. Furthermore, according to the Committee’s jurisprudence, the context of a political debate is irrelevant to the racist nature of specific statements. GIHR observes that the Public Prosecutor’s Office’s considerations situating Mr. Sarrazin’s statements in the context of the development of Berlin 20 years after the fall of the Berlin wall and basing them on his political work in Berlin, have the consequence that public figures enjoy special and arbitrary protection when expressing racist views. Moreover, the judiciary legitimizes such statements and not only promotes the establishment and acceptance of racism in society but also contributes to the development of racism. The facts complained of therefore reveal a violation of the Convention.

On 10 February 2012, the petitioner refers to the jurisprudence of the German Constitutional Court cited by the position paper of GIHR (see para. 8.3), which states that if statements depict foreigners as inferior, for example, through the generalized attribution of socially unacceptable behaviour or characteristics, freedom of expression cannot prevail over human dignity. Mr. Sarrazin’s statements contain exactly this kind of generalized attribution in relation to supposedly unacceptable behaviour and characteristics, inter alia referring to “Turks” and “Arabs” who have characteristics attributed to them solely on the basis of their origin.

Further observations by the State party

10.1On 9 February 2012, the State party, in response to the amicus curiae brief submitted by the German Institute of Human Rights (GIHR), notes that the point at issue is not whether the State party’s judiciary shares or supports Mr. Sarrazin’s statements. The State party reiterates that it rejects these opinions and regards them as wrong and deplorable and dissociates itself, including its judiciary, from them. The GIHR brief conveys a fundamental misconception of the relationship between freedom of expression and the Convention. According to article 4 (a) of the Convention, the need to respect freedom of expression cannot be disregarded when States parties combat racism. It reiterates that German law conforms to article 4 (a) of the Convention and section 130 of the GCC provides for severe punishments in all cases of incitement to hatred, if the relevant act is capable of disturbing the public peace. The question of whether the relevant act is capable of disturbing the public peace has to be carefully assessed, in particular when freedom of expression is to be balanced against the necessity of combating racism.

10.2A statement which the petitioner perceives as racist does not automatically constitute an assault on human dignity within the meaning of section 130 of the GCC. GIHR appears to imply that the criterion of “capable of disturbing the public peace” is not relevant in this case, although it is a requirement in the GCC. It was legally necessary for the Prosecutor General to consider the position of the author of the incriminated statements, the weight of his opinion, his known political opinions and the role and distribution of the journal which published the interview when deciding whether the statements were likely to disturb the public peace. The debate generated by Mr. Sarrazin’s statements does not constitute a disturbance of the public peace. The State party firmly rejects the assertion by GIHR that the judiciary or any other State authority promotes the establishment and acceptance of racism in society.

Issues and proceedings before the Committee

Consideration of admissibility

11.1Before considering any claim contained in a communication, the Committee on the Elimination of Racial Discrimination must decide, pursuant to article 14, paragraph 7 (a), of the Convention, whether or not the communication is admissible.

11.2The Committee notes that the petitioner is a legal entity. It is an umbrella association with individual members and 27 legal entities as members. The Committee takes note of the State party’s argument that the communication should be declared inadmissible, on grounds of “lack of victim standing” in accordance with article 14, paragraph 1, as the petitioner is not directly affected by the statements of Mr. Sarrazin. It also notes the State party’s claim that the present communication cannot be compared to communication No. 38/2008, because in the present case, the petitioner does not have the authority to speak for the group it represents and has not provided any arguments as to why it is acting on behalf of its members without due authorization. It also takes note of the petitioner’s argument that it represents the interests of citizens of Turkish heritage in Berlin and that its work of promoting equality and a climate of non-discrimination was directly affected by the statements of Mr. Sarrazin.

11.3The Committee reiterates that article 14, paragraph 1, directly refers to the Committee’s competence to receive communications from “groups of individuals”. It considers that, on the one hand, the nature of the petitioner’s activities and its aims, which are, according to paragraph 3 of its by-laws, the promotion of peaceful coexistence and solidarity in Berlin and Brandenburg and the furtherance of equality and non-discrimination implemented, inter alia, by counselling and support both in and out of court against discrimination, and, on the other hand, the group of individuals it represents, namely persons of Turkish heritage in Berlin and Brandenburg, satisfies the victim requirement within the meaning of article 14, paragraph 1, of the Convention. It further considers that for purposes of admissibility, the petitioner has sufficiently substantiated that it was directly affected by Mr. Sarrazin’s statements, as it had received several e-mails in which individuals expressed their agreement with Mr. Sarrazin, stating that citizens of Turkish heritage and Muslim do not integrate and that the petitioner should accept the supremacy of freedom of expression. It also received a notification from the police that it was on the list of the National Socialist Underground as an enemy of Germany.

11.4The Committee therefore considers that the fact that the petitioner is a legal entity is not an obstacle to admissibility. Accordingly, the Committee declares the communication admissible and proceeds with its examination on the merits with regard to the claims under articles 2, paragraph 1 (d), 4, paragraph (a) and 6, of the Convention.

Consideration of the merits

12.1In accordance with article 14, paragraph 7 (a), of the International Convention on the Elimination of All Forms of Racial Discrimination, the Committee has considered the present communication in light of all the information submitted by the petitioner and the State party.

12.2The issue before the Committee is whether the State party fulfilled its positive obligation to take effective action against reported statements of racial discrimination, having regard to the extent to which it investigated the petitioner’s complaint under paragraphs 130 and 185 of the Criminal Code. Paragraph 130 of the Criminal Code criminalizes any manner of expression that is capable of disturbing the public peace by incitement to hatred against segments of the population or calling for violent or arbitrary measures against them; or by assaulting the human dignity of others by insulting, maliciously maligning, or defaming segments of the population. It also criminalizes incitement of hatred against segments of the population or a national, racial or religious group, or one characterized by its folk customs, calls for violent or arbitrary measures against them, or assaults the human dignity of others by insulting, maliciously maligning or defaming segments of the population or a previously indicated group. Paragraph 185 of the Criminal Code criminalizes insult.

12.3The Committee recalls its earlier jurisprudence according to which it does not suffice, for the purposes of article 4 of the Convention, merely to declare acts of racial discrimination punishable on paper. Rather, criminal laws and other legal provisions prohibiting racial discrimination must also be effectively implemented by the competent national tribunals and other State institutions. This obligation is implicit in article 4 of the Convention, under which States parties undertake to adopt immediate and positive measures to eradicate all incitement to, or acts of, racial discrimination. It is also reflected in other provisions of the Convention, such as article 2, paragraph 1 (d), which requires States to prohibit and bring to an end, by all appropriate means, racial discrimination, and article 6, which guarantees to everyone effective protection and remedies against any acts of racial discrimination.

12.4The Committee notes the petitioner’s claim that Mr. Sarrazin’s statements in the magazine “Lettre international” No. 86 (2009) discriminated against it and its members, who are all of Turkish heritage, as the Turkish population was presented as a segment of the population who live at the expense of the State and who should not have the right to live on the territory of the State party and that the State party failed to provide protection against such discrimination. It also notes the petitioner’s argument that Mr. Sarrazin’s statements had led to public vilification and debasement of Turks and Muslims in general. It further notes the petitioner’s claims that the absence of criminal prosecution of Mr. Sarrazin amounts to a violation by the State party of articles 2, paragraph 1(d); 4, paragraph (a), and 6, of the Convention, as the domestic legislation was narrowly interpreted. The Committee notes that the State party disapproves of Mr. Sarrazin’s opinion, but argues that the provisions of its Criminal Code sufficiently translate its obligations to provide effective legal sanctions to combat incitement to racial discrimination and that the State party’s authorities correctly assessed that Mr. Sarrazin’s statements are protected by the right to freedom of expression and do not amount to incitement, nor do they refer to segments of the population as inferior. The Committee further notes the State party’s argument that the decisions by its criminal prosecution authorities were neither manifestly arbitrary nor did they amount to a denial of justice and that there was no indication of an increased risk for the petitioner or its members of becoming victims of future criminal acts.

12.5The Committee recalls that it is not its role to review the interpretation of facts and national law made by domestic authorities, unless the decisions were manifestly arbitrary or otherwise amounted to a denial of justice. Nevertheless, the Committee has to examine whether the statements made by Mr. Sarrazin fall within any of the categories of impugned speech set out in article 4, of the Convention, and if so, whether those statements are protected by the “due regard” provision as it relates to freedom of speech, as well as to whether the decision not to prosecute Mr. Sarrazin was manifestly arbitrary or amounted to a denial of justice.

12.6The Committee has taken note of the content of Mr. Sarrazin’s statements regarding the Turkish population of Berlin and in particular notes that he states that a large proportion of the Turkish population does not have any productive function except for the fruit and vegetable trade, that they are neither able nor willing to integrate into German society and encourage a collective mentality that is aggressive and ancestral. Mr. Sarrazin uses attributes such as productivity, intelligence and integration to characterize the Turkish population and other immigrant groups. While he uses these attributes in a positive manner for some immigrant groups, for example the East European Jews, he uses them in a negative sense for the Turkish population. He states that the Turks are conquering Germany just as the Kosovars conquered Kosovo: through a higher birth rate, and that he would not mind if they were East European Jews with an IQ about 15 per cent higher than that of the Germans. Mr. Sarrazin states that he does not have to accept anybody who lives off the State and rejects that very State, who makes no effort to reasonably educate their children and constantly produces new little headscarf girls, and claims that this is true for 70 per cent of the Turkish population in Berlin. Mr. Sarrazin also creates an adjective to express his ideas concerning the inferiority of the Turkish population and states that in other segments of the population, including Germans “one can see a “Turkish” problem”. He also states that he would generally prohibit influx of migrants, except for highly qualified individuals and stop providing social welfare for immigrants. The Committee considers that the above statements contain ideas of racial superiority, denying respect as human beings and depicting generalized negative characteristics of the Turkish population, as well as incitement to racial discrimination in order to deny them access to social welfare and speaking about a general prohibition of immigration influx except for highly qualified individuals, within the meaning of article 4 of the Convention.

12.7Having described Mr. Sarrazin’s statements as impugned speech under article 4 of the Convention, the Committee needs to examine whether the State party properly assessed these statements as being protected by the “due regard” provision relating to freedom of speech. The Committee recalls its jurisprudence and reiterates that the exercise of the right to freedom of expression carries special duties and responsibilities, in particular the obligation not to disseminate racist ideas. It also observes that article 4 of the Convention codifies the State party’s responsibility to protect the population against incitement to racial hatred but also acts of racial discrimination by dissemination of ideas based upon racial superiority or hatred.

12.8While acknowledging the importance of freedom of expression, the Committee considers that Mr. Sarrazin’s statements amounted to dissemination of ideas based upon racial superiority or hatred and contained elements of incitement to racial discrimination in accordance with article 4, paragraph (a), of the Convention. By concentrating on the fact that Mr. Sarrazin’s statements did not amount to incitement of racial hatred and were not capable of disturbing the public peace, the State party failed in its duty to carry out an effective investigation into whether or not Mr. Sarrazin’s statements amounted to dissemination of ideas based upon racial superiority or hatred. The Committee further considers that the criterion of disturbance of the public peace, which is taken into consideration in the evaluation if statements reach the threshold of dissemination of ideas based upon racial superiority or hatred, does not adequately translate into domestic legislation the State party’s obligation under article 2, paragraph 1 (d), in particular as neither article 2, paragraph 1 (d), nor article 4 contain such a criterion.

12.9The Committee therefore concludes that the absence of an effective investigation into the statements by Mr. Sarrazin by the State party amounted to a violation of articles 2, paragraph 1 (d), 4 and 6 of the Convention.

13.In the circumstances, and with reference to its general recommendation No. 31 (2005) on the prevention of racial discrimination in the administration and functioning of the criminal justice system and its general recommendation No. 15 (1993) on organized violence based on ethnic origin, the Committee on the Elimination of Racial Discrimination, acting under article 14, paragraph 7 (a), of the International Convention on the Elimination of All Forms of Racial Discrimination, is of the opinion that the facts as submitted disclose a violation of article 2, paragraph 1 (d), 4 and article 6 of the Convention by the State party.

14.The Committee recommends that the State party review its policy and procedures concerning prosecution in cases of alleged racial discrimination consisting of dissemination of ideas of superiority over other ethnic groups based on article 4 (a) of the Convention and of incitement to discrimination on such grounds, in the light of its obligations under article 4 of the Convention. The State party is also requested to give wide publicity to the Committee’s Opinion, including among prosecutors and judicial bodies.

15.The Committee wishes to receive, within 90 days, information from the State party about the measures taken to give effect to the Committee’s Opinion.

[Adopted in English, French, Russian and Spanish, 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.]

_________________________________________________

CERD/C/82/3

International Convention on the Elimination of All Forms of Racial Discrimination

Distr.: General

5 April 2013

Original: English

Committee on the E limination of Racial Discrimination

Communication No. 48/2010

Individual opinion of Committee member Mr. Carlos Manuel Vazquez (dissenting)

1.This Communication concerns the relation between a State party’s obligation under the Convention to combat hate speech and its obligation to protect the freedom of opinion and expression. On the one hand, “[f]reedom of opinion and freedom of expression are indispensable conditions for the full development of the person” and “constitute the foundation stone for every free and democratic society.” On the other hand, article 4 of the Convention provides that States parties are to “declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred [and] incitement to racial discrimination.” Under this provision, “States parties have not only to enact appropriate legislation but also to ensure that it is effectively enforced.” The question before the Committee is whether the State party violated article 4 by failing to prosecute Mr. Sarrazin for certain statements he made in an interview published in the cultural journal Lettre Internationale.

2.The interview with Mr. Sarrazin contains statements that are bigoted and offensive. The Convention, however, does not require the criminal prosecution of all bigoted and offensive statements. In Zentralrat Deutscher Sinti und Roma v. Germany, for example, the Committee found no violation of the Convention even though the State party had declined to prosecute statements that the Committee found to be “discriminatory, insulting and defamatory.” The German government has disavowed and criticized Mr. Sarrazin’s statements. Chancellor Merkel has denounced them as “simple blanket judgments” and “stupid.” The Berlin Office of Public Prosecution investigated his statements but decided to terminate the investigation upon concluding that the statements did not amount to incitement to racial hatred or qualify as an insult under German criminal law. The General Procurator reviewed the decision of the Berlin Office of Public Prosecution and determined that the investigation had been correctly terminated, noting, inter alia, that Mr. Sarrazin did not characterize members of the Turkish minority as “inferior beings” or “bereave [sic] them of their right to life as an equally worthy person.” Both decisions were extensively explained in writing. The Committee, on the other hand, has concluded that the State party violated its obligation under the Convention when it decided not to pursue further the criminal prosecution of Mr. Sarrazin.

Standard of Review

3.As the Committee recognizes, to find a violation the Committee must conclude that the State Party acted arbitrarily or denied justice. In the context of speech prohibitions, this deferential standard is particularly appropriate. The pertinent officials of the State party have a far greater mastery of the language involved than do the Members of this Committee., and they are in a far better position to gauge the likely impact of the statements in the social context prevailing in the State party. The State party’s decision not to prosecute was neither arbitrary nor a denial of justice.

Incitement to Racial Discrimination

4.In concluding that Mr. Sarrazin’s statements “contained elements of incitement to racial discrimination,” the Committee is apparently referring to the statements suggesting that immigration be limited to “highly qualified people” and that immigrants be denied social welfare. These statements do not, however, advocate discrimination on the basis of “race, colour, descent, or national or ethnic origin.” Moreover, the statements do not constitute “incitement” to discrimination. To constitute “incitement,” there must at least be a reasonable possibility that the statement could give rise to the prohibited discrimination. In the statements that the Committee finds to be “incitement to discrimination,” Mr. Sarrazin puts forward some ideas for possible legislation. The possibility that an individual’s advocacy of legislation will contribute more than trivially to the enactment of legislation is minuscule. Indeed, the concept of incitement to legislation is, to my knowledge, a novel one. Mr. Sarrazin’s statements do not constitute incitement to discrimination.

Dissemination of Ideas Based on Racial Superiority

5.The Committee has also concluded that the interview with Mr. Sarrazin “contained ideas of racial superiority.” The Convention, which refers in article 4 to the prohibition of the “dissemination of ideas based on racial superiority or hatred,” is unusual among human rights instruments in referring to the penalization of speech without an express link to the possibility that such speech will incite hatred or violence or discrimination. Because of the absence of such a link, the dissemination clause poses particular risks of conflict with the right to freedom of thought and expression affirmed in the Universal Declaration of Human Rights. This potential conflict did not go unnoticed in the treaty negotiations. Several states objected to the clause precisely because of its possible conflict with free speech rights. The concerns of these states were addressed through the inclusion of the “due regard” clause in Article 4. This clause specifies that the State parties’ obligations under article 4 are to be exercised “with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention.” In view of this negotiating history, any construction of the term “racial superiority” should be heedful of the need to safeguard the free exchange of opinions and ideas on matters of public concern.

6.It is open to question whether the term “racial superiority” in article 4(a) encompasses statements of superiority on the basis of nationality or ethnicity. Expressions of national or ethnic pride abound in popular discourse, and such expressions are often hard to distinguish from boasts of national or ethnic superiority. Criminalizing such statements risks chilling speech far removed from the central concerns of the Convention. To avoid such a serious incursion on free expression, the term “racial superiority” is best understood to cover statements of superiority based on innate or immutable characteristics.

7.In any event, Mr. Sarrazin’s statements did not express the view that Turks as a nationality or ethnic group were inferior to other nationalities or ethnic groups. Some of the statements, considered in isolation, might be understood to assert that some aspects of Turkish culture inhibit Turks in Berlin from succeeding economically. But it is often claimed, including by commentators of unimpeachable integrity and sensitivity to the problem of racial discrimination, that the culture that prevails among particular national or ethnic groups inhibits their economic success. For example, Amartya Sen, has written that “[c]ultural influences can make a major difference to work ethics, responsible conduct, spirited motivation, dynamic management, entrepreneurial initiatives, willingness to take risks, and a variety of other aspects of human behavior which can be critical to economic success.” The dissemination clause should not be construed to prohibit the expression of such views. “The right to freedom of expression implies that it should be possible to scrutinize, openly debate and criticize belief systems, opinions and institutions, including religious ones.” The claim that the culture or belief system that prevails among a national or ethnic group inhibits their chances of achieving a particular goal is not outside the scope of reasoned discourse, and it is not prohibited by the Convention.

8.Moreover, other portions of the interview indicate that Mr. Sarrazin was not asserting that Turkish culture leads inevitably to lack of economic success. Mr. Sarrazin’s main point appears to have been that the provision of social welfare leads to habits and ways of life that inhibit economic success and integration. Thus, he notes that the same immigrant groups that in Germany and Sweden are economically unsuccessful are successful in other countries, such as the United States. The reason for this disparity, he (mistakenly) asserts, is the fact that immigrants in Germany and Sweden receive social welfare, which gives them a disincentive to integrate, whereas the United States does not provide immigrants with social welfare and, as a result, immigrants from these groups do integrate and succeed economically. Elsewhere in the interview, Mr. Sarrazin asserts that, “[i]f the Turks would like to integrate, they would have parallel success with other groups, and it would not be an issue any more.” Thus, Mr. Sarrazin does not appear to have been asserting the inferiority of Turkish culture or Turks as a nationality or ethnic group. Instead, he appears to have been making an argument about the impact of certain economic policies on the incentives of Turkish immigrants to integrate and thus to succeed economically. In any event, the State party was not acting arbitrarily in construing his statements this way.

9.It is true that, in expressing these ideas, Mr. Sarrazin at times employed denigrating and offensive language. But such language does not change the fact that it was not arbitrary for the State party to conclude that the statements were not ideas of racial superiority. The right to freedom of expression extends even to statements framed in sharp and caustic terms.

State Party Discretion Not To Prosecute

10.Even if I agreed that Mr. Sarrazin’s statements incited to racial discrimination or contained ideas of racial superiority, I would not agree that the State party violated the Convention by failing to prosecute him. The Convention does not require the criminal prosecution of every expression of ideas of racial superiority or every statement inciting to racial discrimination. Rather, the Convention leaves States parties with discretion to determine when criminal prosecution would best serve the goals of the Convention while safeguarding the principles of the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of the Convention. In past decisions, the Committee has recognized the “principle of expediency,” which it has defined as “the freedom to prosecute or not prosecute.” The Committee has explained that this principle “is governed by considerations of public policy” and that “the Convention cannot be interpreted as challenging the raison d'être of [this] principle.” In the light of these decisions, commentators have correctly noted that “[t]he obligation to criminalize should not be understood as an absolute duty to punish.” Rather, “[t]he Committee . . . acknowledge[s] a margin of appreciation for prosecuting authorities.”

11.In its General Recommendation 15, the Committee has asserted that “the prohibition of the dissemination of all ideas based upon racial superiority or hatred is compatible with the right to freedom of opinion and expression.” This is far from saying, however, that the right to freedom of expression is irrelevant to the construction or implementation of article 4. As explained above, in the light of the “due regard” clause, concerns about freedom of opinion and expression are directly relevant to the interpretation of the term “ideas based on racial superiority.” Furthermore, even if the “dissemination of ideas based on racial superiority or hatred” is not protected by the right to freedom of opinion and expression, it does not follow that the criminal prosecution of such dissemination poses no risks to the freedom of opinion and expression. Criminal punishment is the most severe form of punishment the State can impose. A threat of criminal prosecution has the distinct tendency to cause persons to forgo conduct that the law does not prohibit, particularly if the statutory language is unclear. In the context of laws prohibiting speech, this phenomenon is known as the “chilling” effect of such laws. Thus, even if the types of speech described in article 4 are not protected by freedom of expression, an aggressive approach to enforcement can deter people from exercising their right to engage in speech that is protected. For this reason, application of the principle of expediency to the “dissemination of ideas based on racial superiority or hatred” does not contradict General Recommendation 15.

12.A State party might permissibly decline to prosecute on the ground that criminal prosecution in a particular case would impede rather than advance the goals of the Convention. For example, criminally prosecuting statements that are not clearly prohibited could have the perverse effect of making a “freedom of expression” martyr of the speaker, who could claim governmental heavy-handedness and imposition of “political correctness.” If the initial statement was not widely disseminated, criminal prosecution could make matters worse by giving undue prominence to a statement that might otherwise have been quickly forgotten. Criminal prosecution might, indeed, magnify the psychic pain experienced by the targeted groups by giving wider publicity to the denigrating statements. Depending on the circumstances, a State party might reasonably conclude that criminal 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 criterion at all. Furthermore, while GCC 130(1) applies only to statements “capable of disturbing the public peace,” this limitation does not appear in GCC 130(2), which criminalizes, inter alia, the “dissemination” in writing or through the media of materials “which assault the human dignity of other by insulting, maliciously maligning or defaming [a national, racial or religious group].” Nor is the limitation found in GCC 185, which criminalizes insult. Finally, the Convention need not be read to imply that considerations of public order are irrelevant to the application of the dissemination clause. To the contrary, in balancing the obligation to combat hate speech with the safeguarding of freedom of expression, as they must under the “due regard” clause, States parties, in my view, may permissibly determine that prosecution is warranted only if the speech threatens to disturb the public peace.

16.For the foregoing reasons, I am unable to agree that the State party violated the Convention.

[Adopted in English, French, Russian and Spanish, 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.]