Concerning M.D and Y.S. vs Denmark for violation of article 2, 3, 4 and 6 of CERD.
The authors, M.D and Y.S., are iraqi citizens with refugee status in Denmark. M.D. has eight children, including Y.S. In 2004, they were living together in a house in Soroe, Denmark.
In June 2004, a large group of young people attacked the family and their house. They shouted racist statements and broke windows, forced their way into the house, threw a potted plant at M.D.’s leg, punched Y.S. in the face, and struck him in the arm with a bat. Four suspects were charged with joint violence under section 245(1) of the Danish Criminal Code, as well as with gaining unauthorised access to another person’s home under section 264(1). Two of the defendants were also charged with vandalism under section 291(1).
Towards the end of 2004, hearings took place in the District Court of Soroe. The Court sentenced each to a suspended jail term of 50 days. It did not consider the racist nature of the attacks, which, under section 81(1) of the Danish Criminal Code, could have been an aggravating circumstance, and did not award compensation to the authors.
On 23 May 2006, the authors instituted civil proceedings. They sought non-pecuniary damages for the physical and mental injuries they sustained as a result of the attack, and they cited the racist element of the crimes as an aggravating factor. On 11 September 2007, the District Court of Naestved rejected the author’s claim. It found that there was no evidence establishing a racist character to the actions, and that the harm suffered by the authors was not sufficient to establish a tort. On 3 October 2008, the High Court of Eastern Denmark upheld the judgment of the District Court. Finally, on 12 December 2008, the Danish Supreme Court denied the Applicants leave to appeal. Thus, it was sent to the Committee.
The Committee observed that, by hearing the matters summarily and downgrading the charges against the suspects, the District Court had set aside “the possibly racist nature of the attacks” during the investigation and had failed to adjudicate them at trial. It also observed that the attack on the authors was grave. Ultimately, the Committee commented that the onus was on the State party “to initiate an effective criminal investigation, instead of giving the petitioners the burden of proof in civil proceedings”. The Committee thus recommended that Denmark grant the authors compensation for the material and moral injuries caused by the attack.
24. November 2020