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CERD/C/82/D/48/2010

TBB-Turkish Union in Berlin/Brandenburg v. Germany

UNO-Ausschuss gegen Rassendiskriminierung (CERD) · · en UN

Decision; Subjects: RACE RELATIONS, PERIODICALS, TURKS, GERMANY, RACIAL DISCRIMINATION; [CERD: Rassendiskriminierungsübereinkommen; Convention sur l'élimination de la discrimination raciale; Convenzione sull'eliminazione della discriminazione razziale]

Volltext (verifizierbarer Originaltext)

GE.13-43525

Committee on the Elimination 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

United Nations

CERD/C/82/D/48/2010

International Convention on

the Elimination of All Forms

of Racial Discrimination

Distr.: General

10 May 2013

Original: English

CERD/C/82/D/48/2010

2

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

* The following members of the Committee participated in the examination of the present

communication: Mr. Nourredine Amir; Mr. Alexei S. Avtonomov; Mr. José Francisco Cali Tzay;

Ms. Anastasia Crickley; Ms. Fatimata-Binta Victoire Dah; Mr. Régis de Gouttes; Mr. Ion Diaconu;

Mr. Kokou Mawuena Ika Kana (Dieudonné) Ewomsan; Mr. Yong’an Huang; Ms. Patricia Nozipho

January-Bardill; Mr. Anwar Kemal; Mr. Dilip Lahiri; Mr. Jose A. Lindgren Alves; Mr. Pastor Elías

Murillo Martínez; Mr. Waliakoye Saidou; Mr. Carlos Manuel Vázquez. In accordance with rule 90 of

the Committee’s Rules of Procedure, Mr. Gün Kut did not participate in the examination of the

present communication.

The text of an individual opinion by Mr. Carlos Manuel Vázquez is appended to the present Opinion

as a separate document (CERD/C/82/3).

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additional member of the Executive Board of Directors.1 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 Germany2 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

2.1

The German cultural journal Lettre International (2009 fall edition, No. 86)3

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 […].

1 The power of attorney is signed by the spokeswoman of the Board of Directors and by the

spokesperson of the Executive Board of Directors.

2 The Convention was ratified by Germany on 16 May 1969, and the declaration under article 14 was

made on 30 August 2001.

3 A German cultural magazine, with 23,000 issues printed. For the issue in question 33,000 issues were

printed.

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[…] 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 […]”

2.2

On 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

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to article 130 of the Criminal Code,4 in particular because “Turks and Arabs were presented

as inferior and denied a right to existence in our society”.

2.3

Mr. Sarrazin’s statements were reviewed with respect to article 130 (incitement to

hatred) and article 185 (insult)5 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.6 The Office of Public Prosecution based its

decision on article 5 of the Basic Law (freedom of expression)7 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 […].”

2.4

On 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.8 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.

2.5

In 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

4 Paragraph 130 of the Criminal Code: (1) Whoever, in a manner that is capable of disturbing t he public

peace: 1. incites hatred against segments of the population or calls for violent or arbitrary measures

against them; or 2. assaults the human dignity of others by insulting, maliciously maligning, or

defaming segments of the population, shall be punished with imprisonment from three months to five

years.

5 Paragraph 185: Insult shall be punished with imprisonment for not more than one year or a fine and, if

the insult is committed by means of violence, with imprisonment for not more than two years or a

fine.

6 Article 170 of the German Criminal Procedure Code : (1) If the investigations offer sufficient reason

for preferring public charges, the public prosecution office shall prefer them by submitting a bill of

indictment to the competent court. (2) In all other cases the public prosecution office shall terminate

the proceedings. The public prosecutor shall notify the accused thereof if he was examined as such or

a warrant of arrest was issued against him; the same shall apply if he requested such notice or if there

is a particular interest in the notification.

7 Article 5 of the Basic Law: (1) Every person shall have the right freely to express and disseminate his

opinions in speech, writing and pictures, and to inform himself without hindrance from generally

accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films

shall be guaranteed. There shall be no censorship. (2) These rights shall find their limits in the

provisions of general laws, in provisions for the protection of young persons, and in the right to

personal honour. (3) Arts and sciences, research and teaching shall be free. The freedom of teaching

shall not release any person from allegiance to the constitution.

8 Article 172(1), of the German Criminal Procedure Code: Where the applicant is also the aggrieved

person, he shall be entitled to lodge a complaint against the notification made pursuant to Section 171

to the official superior of the public prosecution office within two weeks after receipt of such

notification. On the filing of the complaint with the public prosecution office the time limit shall be

deemed to have been observed. Time shall not start to run if no instruction was given pursuant to

Section 171, second sentence.

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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.

2.6

Domestic 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.

2.7

According 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.9

2.8

With 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,10 No. 30/2003, Jewish community

of Oslo v. Norway11 and No. 38/2006, Central Council of German Sinti und Roma et al. v.

Germany,12 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

9 See Federal Constitutional Court, B.v. 22 June 2006 – 2 BvR 1421/05.

10 See communication No. 28/2003, Documentation and Advisory Centre on Racial Discrimination v.

Denmark, Opinion of 22 August 2003, para. 6.4.

11 See communication No. 30/2003, Jewish community of Oslo et al. v. Norway, Opinion of 15 August

2005, para. 7.4.

12 See communication No. 38/2006, Central Council of German Sinti and Roma et al. v. Germany,

Opinion of 22 February 2008, para. 7.2.

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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

3.1

The 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.

3.2

The 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.

3.3

The 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.

3.4

With 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

4.1

On 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,

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motivation to work, equality in education, the demographic development, immigration and

integration. In all these areas, he made direct and controversial statements.

4.2

The 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).13 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.

4.3

The 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.14 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.15

4.4

With 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

13 See communication No. 30/2003, The Jewish community of Oslo et al v. Norway, Opinion of 15

August 2005.

14 Communication No. 28/2003, Documentation and Advisory Centre on Racial Discrimination v.

Denmark, Opinion of 19 August 2003, para. 6.4.

15 Communication No. 30/2003, Jewish Community of Oslo et al. v. Norway, Opinion of 15 August

2005, para. 7.4; communication No. 38/2006, Central Council of German Sinti and Roma et al. v.

Germany, Opinion of 22 February 2008, para. 7.2.

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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.

4.5

The 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.

4.6

With 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.

4.7

With 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,

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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

5.1

On 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.16 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.

5.2

With regard to the admissibility, the petitioner recalls the Committee’s

jurisprudence17 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,18 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

16 See statement of 400 well-known persons and organizations expressing their concern about the public

order and racist statements, tageszeitung.taz, a daily newspaper, 1 October 2010, and German

Institute for Human Rights of 2 September 2010.

17 See communication No. 28/2003, Documentation and Advisory Centre on Racial Discrimination v.

Denmark, Opinion of 19 August 2003, para. 6.4; communication No. 30/2003, Jewish Community of

Oslo et al. v. Norway, Opinion of 15 August 2005, para. 7.4; communication No. 38/2006, Central

Council of German Sinti and Roma et al. v. Germany, Opinion of 22 February 2008, para. 7.2.

18 See communications Nos. 28/2003 (see note 16 above), para. 6.4; No. 38/2006, para. 7.2; No.

30/2003, para. 7.4.

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11

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.19 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.20 Lastly, no other domestic remedies were available to the petitioner.

Further observations by the State party on admissibility and merits

6.1

On 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.21 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.

6.2

On 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.22 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.23 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

19 See the report of the Special Rapporteur on contemporary forms of racism, racial discrimination,

xenophobia and related intolerance, Githu Muigai (A/HRC/14/43/Add. 2), para. 67.

20 See Südwestrundfunk, SWR, TV station, 30 August 2010. [This statement was made after the

publication of the book by Mr. Sarrazin.]

21 See communication No. 38/2006, Central Council of German Sinti and Roma et al. v. Germany,

Opinion of 22 February 2008, para. 7.2.

22 See for example the statement by 400 well-known persons in the “tageszeitung.taz”, daily newspaper,

1 October 2010.

23 See article 20, paragraph 2, of the International Covenant on Civil and Political Rights; European

Court of Human Rights, Gündüz v. Turkey, No. 35071/97, judgement of 4 December 2003, para. 40.

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12

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.

6.3

The 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

7.1

On 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.

7.2

On 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.

8.1

On 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

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13

Committee24 and other international bodies.25 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.26 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.27

8.2

GIHR 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.28 However, the Court has

also established that in the case of an assault on human dignity, freedom of expression must

yield to human dignity.29 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 exclusion30 and other forms of conduct that deny the

affected person’s right to respect as a human being.31

24 See CERD/C/DEU/CO/18, para. 15.

25 See European Commission against Racism and Intolerance (ECRI) Report on Germany, 26 May

2009, p. 8; Report of the Special Rapporteur on contemporary forms of racism, racial discrimination,

xenophobia and related intolerance, Githu Muigai, Mission to Germany (A/HRC/14/43/Add. 2), para.

77 (a).

26 Gideon Botsch, Gutachten im Auftrag des SPD-Kreisverbandes Spandau und der SPD-Abteilung Alt-

Pankow zur Frage “Sind die Äusserungen von Dr. Thilo Sarrazin im Interview in der Zeitschrift

Lettre International (deutsche Ausgabe, Heft 86) als rassistisch zu bewerten?”, 22 December 2009.

27 See Open letter of German Muslims to the President Christian Wulff, Offener Brief deutscher

Musliminnen und Muslime an den Bundespräsident Christian Wulff, 13 September 2009.

28 Federal Constitutional Court, decision of 12 November 2002, 1 BvR 232/97, paras. 17 and 21.

29 Federal Constitutional Court, decision of 4 February 2010, 1 BvR 369/04, 1 BvR 370/04, 1 BvR

371/04, para. 26.

30 Federal Constitutional Court, decision of 4 February 2010, 1 BvR 369/04, 1 BvR 370/04, 1 BvR

371/04, para. 28.

31 Ibid.

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14

8.3

GIHR 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.

8.4

GIHR 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.32 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.

9.

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.33 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

10.1

On 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

32 See communication No. 34/2004, Mohammed Hassan Gelle v. Denmark, Opinion of 6 March 2006,

para. 7.5; communication No. 43/2008, Saada Mohamad Adan v. Denmark, Opinion of 13 August

2010, para. 7.6.

33 See Federal Constitutional Court, Decision of 4 February 2010, 1 BvR 369/04, 1 BvR 370/04, 1 BvR

371/04.

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15

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.

10.2

A 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

11.1

Before 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.

11.2

The 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. 38/2008,34

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.

11.3

The 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.35 It further considers that

for purposes of admissibility, the petitioner has sufficiently substantiated that it was directly

34 See communication No. 38/2006, Central Council of German Sinti and Roma et al. v. Germany,

Opinion of 22 February 2008.

35 Ibid., para. 7.2; communication No. 30/2003, Jewish Community of Oslo et al. v. Norway, Opinion of

15 August 2005, para. 7.4.

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16

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.

11.4

The Committee36 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

12.1

In 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.

12.2

The 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.

12.3

The Committee recalls its earlier jurisprudence37 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.

12.4

The 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

36 Mr. Carlos Manuel Vázquez noted that he did not agree that the communication be declared

admissible.

37 See communication No. 34/2004, Gelle v. Denmark, Opinion adopted on 6 March 2006, paras. 7.2-

7.3.

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17

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.

12.5

The 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.38 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.

12.6

The 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.

12.7

Having 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

38 See communication No. 40/2007, Er v. Denmark, Opinion adopted on 8 August 2007, para. 7.2.

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18

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.39 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.40

12.8

While 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.

12.9

The 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 system41 and its general recommendation No. 15 (1993) on organized

violence based on ethnic origin,42 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.43 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.

39 See general recommendation 15 (1993) on organized violence based on ethnic origin (article 4), para.

4; communication No. 43/2008, Saada Mohamad Adan v. Denmark, Opinion adopted on 13 August

2010, para. 7.6.

40 See the Committee’s general recommendation No. 15, para. 3.

41 Official Records of the General Assembly, Sixtieth Session, Supplement No. 18 (A/60/18), chap. IX.

42 See the Committee’s general recommendation No. 15.

43 See communication No. 4/1991, L.K. v. the Netherlands, Opinion adopted on 16 March 1993, para.

6.8.

CERD/C/82/D/48/2010

19

[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.]