* This is a guest blogpost written by Dr Carola Lingaas. She is an Associate Professor of Law at VID Specialized University in Oslo (Norway). Dr Lingaas earned her PhD from the University of Oslo with a dissertation on ‘The Concept of Race in International Criminal Law’, which was later published by Routledge. She has published widely on international criminal law, human rights issues and migration.
On 20 January 2021, the Danish Supreme Court acquitted three men of hate speech against non-Western migrants, asylum seekers and refugees. The district court of Sønderborg and the Court of Appeals (Vestre Landsrets) had in September 2018 and in June 2020, respectively, convicted the men for the crime. The Supreme Court overturned the convictions because, although the men had made public statements that expressed a degradation or an insult of a group of persons, the victim group was not delimited by a particular race, skin colour, national or ethnic origin, faith or sexual orientation, the exclusive victim groups of hate speech. The judgment was widely reported in national media (here, here and here), with headlines such as “Distribution of asylum spray was not racism”.
The distribution of so-called asylum sprays to random passers-by was organized by members of the political party ‘Danskernes Parti’, the Danes’ Party, a right-wing nationalist party that for a long time tried to stand for election to the Folketing (the national parliament), but did not manage to reach sufficient votes. In 2016, in the city of Haderslev, for approximately one hour, the men handed out hairsprays with stickers containing the following political messages:
“Do you want to be safe without spray? The migrants, who have come to Denmark under the guise of being ‘refugees’, have insulted Danish girls and created insecurity”.
In addition to the sprays that contained the words ‘legal’ and ‘efficient’, the men also distributed pamphlets. They informed the passers-by that their party believed that migrants created security problems in Denmark and therefore should be deported. The men recommended that Danish women carried the spray in their handbags to be prepared for attacks. Moreover, the party pledged to legalize pepper sprays once elected. Before they took to the streets, the party members also posted a video online, similar to an earlier one that stirred fears about Denmark being invaded by migrants who called themselves refugees, causing that Danes were the soon-to-be minority population. The party, which was dissolved in 2017, was renowned for provocative campaigning against immigrants. Its leader, Daniel Carlsen, denied that the party’s actions were meant as provocations. The Danes’ Party, he claimed, went in and tackled a real societal problem, since many Danes felt insecure, in part due to the numerous migrants and in part due to the lack of opportunity to defend oneself.
The Supreme Court bench was divided: three of the five judges voted for acquittal of the three men for hate speech, while two voted for conviction. The attorney of the accused claimed that being an immigrant, an asylum seeker or a refugee did not entail a common feature as listed in Section 266 b of the Danish Penal Code, the so-called racism paragraph. According to this provision,
“anyone who, in public or with intent to spread in a wider circle, makes a statement or another announcement, in which a group of persons is threatened, insulted or degraded because of their race, skin colour, national or ethnic origin, faith or sexual orientation, is punished with a fine or imprisonment for up to 2 years”.
The majority judges followed the defence attorney’s argument and acquitted the men. The judgment is, in the opinion of this author, not in line with Denmark’s obligations under international human rights law and the case law of the European Court of Human Rights (ECtHR) . In determining whether, in this specific case, the victim group of migrants, asylum-seekers and refugees is protected under Section 266 b, the majority judges obviously relied on an objective classification. Without going into any details as to the victims or their origin, the judges concluded that migrants, asylum seekers and refugees do not share a common race, skin colour, national or ethnic origin, faith or sexual orientation. Since the victims shared no common characteristics, they were not a homogenous group. Hence, in the view of the majority judges, they were not protected by the criminal law on hate speech. This view, however, disregards the fact that the accused men perceived their victims as one group and targeted them for their racial otherness. Although presented as political views, the men clearly showed a racialized understanding of the foreigners, which shines through in the negative prejudice that all non-Western migrants are perceived as dangerous and potential rapists of Danish girls.
Convention on the Elimination of Racial Discrimination
The predecessor of Section 266 b of the Danish Penal Code was introduced to enable accession to the UN Convention on the Elimination of Racial Discrimination (ICERD). The travaux préparatoires of the domestic law show that, as the Supreme Court briefly discusses, the purpose of Section 266 b is a prohibition of racial discrimination. The draft provision aimed at criminalizing certain acts directed at a group of persons because of their race, skin colour, national or ethnic origin. The protected grounds were later expanded to include faith and sexual orientation. In Art. 1 (1), the ICERD defines racial discrimination broadly as “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin”. The definition encompasses any kind of discrimination that originates in denigrating or demeaning a person for reasons of group membership, a belonging that the concerned individual cannot change, because s/he is born into it. The provision does, notably, not define ‘racial’ or ‘race’. It offers a circular reference to racism in terms of race and, moreover, introduces other terms, which raise similarly complex interpretative questions.
Given that Section 266 b of the Danish Penal Code was created in order to accede to ICERD, it ought to be interpreted in an equally broad manner, in order to fulfil the legal requirements set by the treaty. The purpose of the provision is, as the Supreme Court correctly acknowledges, the prevention of racial discrimination, thus confirming its focus on race, racial groups, racism, and racialized discrimination. It is therefore odd that the Supreme Court does not engage in any substantial discussion as to whether the targeted asylum seekers from non-Western countries could be defined as a racial group in the sense of the law.
The prosecution notably argued that the accused men targeted foreigners from non-Western countries such as migrants, asylum seekers and refugees on the grounds of their national and ethnic origin. The prosecution did, in other words, not pledge that the victims were members of a racial group either. It did, however, argue that the law could not be understood to apply only if the victim group had common characteristics. Indeed, it cannot be claimed that foreigners who experience discrimination more often than the majority population, must have identical characteristics, e.g. all originate from the same country, all adhere to the same faith, all have the same shades of skin colour. Due to the principle of legality, criminal law has to be strictly interpreted in order not to diminish the rights of the accused, however, such interpretation cannot effectively exclude individuals from their rightful protection against racial discrimination as members of a protected victim group.
The hateful comments, made under the guise of politics, show an understanding of a racial difference between ‘ordinary’ Danes and the migrants. The men did not target all migrants, but only non-Western. All members of the group of non-Western migrants/ refugees/ asylum seekers are understood as having the same characteristics and, therefore, as being one. In the view of the men, they are all dangerous, vile, and a threat to the Danish population and country. Perceptions and group stereotypes remove the individuality of the person who is relegated to being a small, insignificant and replaceable part of a larger structure. Racism is built on hierarchical understanding of groups, whereby the ‘others’ are considered to have a distinct and, importantly, inferior innate essence. Common to racism is also a wish to get rid of the undesired inferior racial group, a fact that holds true for the men acquitted by the Supreme Court.
Objective determination of the victims
With its judgment in the Asylum Spray case, the Danish Supreme Court seems to demand an objective determination of each individual victim who potentially is a member of a protected group. In its consequence, this would lead to absurd legal analyses of whether the victims originated from the same nation (which, arguably, is not the same as having the same nationality), had the exact same pigmentation, same race (whatever that might be in objective terms), ethnic origin, faith or sexual orientation. The legal difficulties that such a classification of victims entail are obvious. Take, for example, the imaginary (but certainly not unrealistic) case of hate speech against individuals who are spending their (pre-Covid-19) Saturday night in a dance club for LGBTQI people. The imagined perpetrator makes degrading statements regarding their ostensive lesser value and thereby attacks their dignity. In his view, the victims are humans of a lower rank, and his stereotypes surface in statements. In doing so, the perpetrator attacks the group’s otherness, in terms of their sexual orientation. Except, in this constructed case, the victims are not a homogenous group either. Following the logic of the Danish Supreme Court, every single victim would have to be interrogated in order to assess his or her sexual orientation. You can imagine what – utterly pointless – task this would create to objectively determine whether the targeted individuals were lesbian, gay, queer, gender fluid, pan-, inter- or bisexual. You get the point: demanding such legal objective classification is not only yet another element of characterisation of otherness, it is also futile. In the eyes of the perpetrator, the group of clubbers is very much homogenous: they are different, inferior, of a lesser value, in short: the ‘others’. The Danish Supreme Court refuses to recognise racial discrimination for what it really is: the degradation and, in some cases also dehumanisation, of the others. In refusing to deal with non-Western migrants as one group, whom the three party members of Danskernes parti obviously regarded as inferior, as the ‘others’ and as a threat to ordinary ‘good’ Danish, the Court voluntarily engages with legal hair splitting.
Hate crime in Denmark – and beyond
Perpetrators of hate crimes, as clearly manifested in the actions of the acquitted men, commit the criminal act based on a bias towards one or several individual(s) with (perceived) group characteristics. The common trait that the judges of the asylum spray case appeared not to notice is the non-Danishness, the ostensive inferiority and racial otherness of the victims. The victim group, which the judges (by reference to the preparatory works) held to be “so large and indeterminate that the rules of criminal law on libel do not apply”, is clearly determinable based upon the bias directed at it. The judges, while acknowledging expressions of insult and humiliation, failed to recognise the racial bias in the utterances.
Denmark, some sources claim, has a persevering problem with racism. 41% of respondents who are immigrants or descendants from immigrants from Sub-Saharan Africa stated that they in the past twelve months felt discriminated against because of skin colour/ ethnic origin or religion in 10 areas of life. With this result, Denmark achieved the fourth poorest result in the EU, only surpassed by Luxemburg, Finland and Austria. With this rank, Denmark does not fulfil its legal obligation to eliminate racial discrimination, as codified in Art. 4 lit. a ICERD.
Yet, Denmark is not alone in its struggle with issues of hate crime. Despite the Member States’ efforts to combat discrimination and intolerance, the situation in the EU is not improving. A large survey found that one in four respondents from minority or immigrant groups had been a victim of ‘racially motivated’ in-person crime. A main challenge to combating hate crime is the lack of information about the perpetrator’s motivation: the EU and the European Court of Human Rights (ECtHR) both concluded that countries must clearly document the motivation behind racist crimes. According to the jurisprudence of the ECtHR, overlooking the bias motivation behind a crime amounts to a violation of the right to protection from discrimination (Art. 14 of the European Convention of Human Rights). In Identoba and Others, the Court held that that
“without such a strict approach on the part of the law-enforcement authorities, prejudice-motivated crimes would unavoidably be treated on an equal footing with ordinary cases without such overtones, and the resultant indifference would be tantamount to official acquiescence or even connivance in hate crimes” (para. 77).
The emphasis on the bias motivation is important: perpetrators of hate crimes victimise individuals for their (perceived) characteristics. The acts reveal an understanding of the victim as not an individual in its own rights, but as a faceless – and replaceable – member of a group who the perpetrator identifies as being of a lesser value than his/her own group. Drawing on this jurisprudence, the EU therefore recommends making hate crime more visible and increase the accountability of its perpetrators. One suggestion is that courts, in their judgments, should address bias motivations publicly as to raise awareness and quell hopes of impunity. In identifying, framing and naming the source of discrimination, in our case racism, it is possible to achieve justice.
Comparative aspects: Denmark vs. Norway
Two brief comparative aspects concerning the criminal law of two Scandinavian countries: first, it is remarkable that the corresponding provision in the Norwegian Penal Code, Section 185, does not explicitly protect a certain group. It rather penalises hate speech that “is meant to threaten or insult someone, or to promote hatred, persecution of or the contempt for another person based on his or her skin colour or national or ethnic origin, religion or belief, sexual orientation, gender identity or gender expression, or disability”. There, however, seems to be an accepted understanding that the provision protects groups, albeit group membership not being an explicit part of the actus reus.
Second, unlike its Danish counterpart, the Norwegian provision does not explicitly protect members of a racial group. Rather, it refers to “skin colour or national or ethnic origin”. The travaux préparatoires, however, repeatedly refer to ‘racial utterances’ and the obligations of Norway under ICERD, thus implying that racialized utterances are criminalised. The reference to skin colour is deeply problematic because it narrows down racism to differences in pigments, which – traditionally – was one way of categorizing people. In days of social Darwinism and race hygiene, skin colour was indeed an indicator of a person’s social hierarchy. Today, however, racial understandings cannot be reduced to difference in pigmentation.
The conclusion of the Danish Supreme Court that non-Western migrants, asylum seekers and refugees as a social group of the Danish society are not protected against hate speech under criminal law is a mean to acquiesce a misculture and allow impunity. The Supreme Court had the chance to set precedence that hateful statements are politically, socially and not least legally unacceptable. Rather than rebutting hate speech, naming harmful stereotypes and making visible what in parts of the Danish society is ingrained as tolerable, the Court settled with a positivistic interpretation of a provision that clearly was intended to be interpreted broadly. The Court could have played a key role in countering stereotypes and discriminatory attitudes towards migrants in Denmark, but chose to let this opportunity pass.