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TBB–Turkish Union in Berlin/Brandenburg v. Germany

Published online by Cambridge University Press:  20 January 2017

Amy Senier
Amy Senier*
Affiliation:
Georgetown University Law Center
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Extract

In February 2013, the Committee on the Elimination of Racial Discrimination (CERD Committee or the Committee) issued its opinion in TBB—Turkish Union in Berlin/Brandenburg v. Germany. The majority of the Committee concluded that Germany had violated its obligations to protect its Turkish and Arab populations from a former state official’s allegedly racially discriminatory statements in violation of Articles 2(1)(d), 4(a), and 6 of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD or the Convention). The Committee reached significant conclusions regarding the contours of incitement to racial hatred and ideas of racial superiority, the balance between freedom from discrimination and freedom of expression, and state discretion not to prosecute. Consideration of this matter also marks the first time a member of the CERD Committee has filed an individual—or dissenting—opinion.

Keywords

Convention on the Elimination of All Forms of Racial DiscriminationArticle 4obligation to take action against statements of racial discriminationincitement to racial discriminationideas of racial superiorityfreedom of expression
Type
International Decisions
Information
American Journal of International Law , Volume 107 , Issue 4 , October 2013 , pp. 891 - 898
Copyright
Copyright © American Society of International Law 2013

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References

1 TBB–Turkish Union in Berlin/Brandenburg v. Germany, Communication [Commc’n] No. 48/2010, UN Doc. CERD/C/82/D/48/2010, annex (Apr. 4, 2013).

2 International Convention on the Elimination of All Forms of Racial Discrimination, Dec. 21, 1965, S. EXEC. DOC. 95-C (1978), 660 UNTS 195 [hereinafter CERD]. Article 2(1)(d) requires states parties to “prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization.” Article 4(a) requires states parties to make “punishable by law all disseminationof 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 colour or ethnic origin.” Article 6 requires states parties to provide effective protection and remedies against any acts of racial discrimination.

3 Strafgesetzbuch [STGB] [Criminal Code], Nov. 13, 1998, BGBl. I at 3322, amended by Law of Oct. 2, 2009, Art. 3, §130, BGBl. I at 3214. English translations of the German Criminal Code and the German Code of Criminal Procedure are available at http://legislationline.org/documents/section/criminal-codes.

4 Id., §§130, 185.

5 Grundgesetz Für Die Bundesrepublik Deutschland [Basic Law], May 23, 1949, BGBl. I, Art. 5. May 23, 1949, BGBl.I, Art. 5. An English translation of the Grundgesetz is available at http://legislationline.org/documents/section/constitutions/country/28.

6 Strafprozessordnung[STPO] [Code of Criminal Procedure], BGBl. Iat 1074, amended by Act of Oct. 31, 2008, Art. 2, §172(1), BGBl. I at 2149.

7 The Committee generally considers communications on the basis of written submissions. Oral argument is not typically held, although the Committee’s Rules of Procedure appear to allow for that possibility. See CERD Committee, Rules of Procedure, Rules 85–95, UN Doc. CERD/C/35/Rev.3 (Jan. 1, 1989) [hereinafter Rules] (detailing procedures for handling communications via written submissions). But see Rule 94(5) (leaving the Committee the option to invite “the presence of the” petitioner or his representative, and that of the representatives of the state party, to provide additional information or answer questions regarding the merits of the communication).

8 Article 14(1) of CERD, supra note 2 (stating in part that the Committee may “receive and consider communications from individuals or groups of individuals within its jurisdiction claiming to be victims of a violation by that State Party of any of the rights set forth in this Convention”); Rules, supra note 7, Rule 91(b) (stating “[t]hat the individual claims to be a victim of a violation by the State party concerned of any of the rights set forth in the Convention”).

9 Citing CERD Committee, General Recommendation XV on Article 4 of the Convention, para. 4 (Mar. 17, 1993), in CERD Committee, Annual Report, UN GAOR, 48th Sess., Supp. No. 18, at 115, UN Doc. A/48/18 (1994) [hereinafter CERD Committee, Annual Report]; Adan v. Denmark, Commc’n No. 43/2008, para. 7. 6, UN Doc. CERD/C/77/D/43/2008 (Aug. 13, 2010).

10 TBB–Turkish Union in Berlin/Brandenburg v. Germany, Commc’n No. 48/2010, Individual Opinion of Mr. Carlos Manuel Vazquez, UN Doc. CERD/C/82/3 (Apr. 4, 2013) [hereinafter Individual Opinion].

Editors’ Note : Carlos Manuel Vázquez is a member of this Journal’s Board of Editors and a professor at Georgetown University Law Center but was not consulted or involved in the production of this note, other than to confirm the author’s understanding that this is the first dissenting opinion in the Committee’s practice to date.

11 Individual Opinion, para. 2.

12 Id., para. 4.

13 Id.

14 Id., para. 5.

15 Id.

16 Id., para. 6.

17 Id.

18 Id., para. 9.

19 Id., paras. 7, 8.

20 Id., para. 7.

21 Id., para. 8.

22 Id.

23 Id., para. 9.

24 Id., para. 10.

25 Id., paras. 11, 12.

26 CERD, supra note 2, Arts. 8(1), 9(1), 11(1), 14(1).

27 See, e.g., id., Art. 14(7)(b) (stating that the Committee may issue “suggestions and recommendations” following its consideration of individual communications).

28 International Covenant on Civil and Political Rights, Art. 19(3), Dec. 16, 1966, S. Exec. Doc. NO. 95-E, at 28 (1978), 999 UNTS 171 (freedom of expression may “be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals”).

29 Human Rights Comm., General Comment No. 34, para. 35, UN Doc. CCPR/C/GC/34 (Sept. 12, 2011); see also id., para. 36 (“[A] State party, in any given case, must demonstrate in specific fashion the precise nature of the threat to any of the enumerated grounds listed in paragraph 3 that has caused it to restrict freedom of expression.”).

30 Citing Erv. Denmark, Commc’n No. 40/2007, para. 7.2(Aug.8,2007), UNDoc. CERD/C/71/D/40/2007, annex (2007).

31 See, e.g., Mulai v. Guyana, Commc’n No. 811/1998, UN Doc. CCPR/C/81/D/811/1998 (Aug. 18, 2004).

32 Harvard Research in International Law, The Law of Responsibility of States for Damage Done in Their Territory to the Person or Property of Foreigners, Art. 9, 23 AJIL 131, 134 (Special Supp. Apr. 1929).

33 Elettronica Sicula S.p.A. (ELSI) (U.S. v. It.), 1989 ICJ REP. 15, 76, para. 128 (July 20).

34 Jewish Community of Oslo v. Norway, Commc’n No. 30/2003, UN Doc. CERD/C/67/D/30/2003, annex (Aug. 15, 2005).

35 L.K. v. Netherlands, Commc’n No. 4/1991 (Mar. 16, 1993), in CERD Committee, Annual Report, supra note 9, at 131.

36 Quereshi v. Denmark, Commc’n No. 33/2003 (Mar. 9, 2005), UN Doc. CERD/C/66/D/33/2003, annex (2005).

37 Er v. Denmark, supra note 30, para. 7.2.

38 Even though speech must be capable of disturbing the public peace to constitute incitement under German law, the crime of insult does not carry this requirement and the OPP considered and dismissed an insult charge against Sarrazin. See Individual Opinion, supra note 10, para. 15.

39 Germany informed the Committee that it is evaluating existing law criminalizing racist statements in light of TBB but cautioned that this evaluation “will have to take into account the importance of freedom of speech, which is guaranteed by the German Basic Law and by international human rights law.” Permanent Mission of the Federal Republic of Germany to the Office of the United Nations and to the Other International Organizations, Geneva, Note Verbale No. 166/2013 (July 1, 2013), available at http://mediendienst-integration.de/fileadmin/Dateien/ CERD-TBB_Antwort.pdf.

40 CERD Committee, General Recommendation XV, supra note 9, para. 4.