Oslo, 17. June 2003

P E T I T I O N

UNDER ART. 14 OF THE INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION

TO THE COMMITTEE ON THE ELIMINATION OF RACIAL DISCRIMINATION

Authors:

Det Mosaiske Trossamfund i Oslo (The Jewish Community of Oslo), Bergstien 17, 0172 Oslo, Norway. Det Mosaiske Trossamfund i Trondheim (The Jewish Community of Trondheim), Bratørgata 6, P-O-Boks 828, 7408 Trondheim, Norway. Rolf Kirchner. Julius Paltiel. Antirasistisk Senter (The Norwegian Antiracist Centre), P.O.Box 244 Sentrum, 0103 Oslo, Norway. Nadeem Iqbal Butt.

 

Represented by:

Advokat Frode Elgesem, Advokatfirmaet Hjort DA Postboks 471 Sentrum, 0105 Oslo, Norway.

 

State Party:

The Kingdom of Norway

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1. Introduction – object of the petition

This petition is filed on behalf of the Jewish Communities of Oslo and Bergen and two individual Jews, Mr. Rolf Kirchner and Mr. Julius Paltiel, who are also the leaders and Principals of the Jewish Communities in Oslo and Trondheim, respectively. In addition the petition is filed on behalf of The Norwegian Antiracist Centre (ARC) and an individual, Mr. Nadeem Butt, who are also the leader of ARC. The Forms of Authority are appended as Appendix 1-5.

The Kingdom of Norway has recognised the competence of the Committee to receive and consider communications from individuals or groups of individuals by declaration of 23. March 1976. Norway’s reservation does not apply, as the matter been has not been examined by any other procedure of international investigation or settlement.

The petition concerns breaches of The International Convention on the Elimination of all Forms of Racial Discrimination (hereinafter CERD or "the Convention") caused by the Supreme Court’s judgment of 17. December 2002. The Supreme Court – sitting in plenary session – laid down the law and afforded to Mr. Terje Sjølie protection under the right to freedom of speech and thus acquitted him of the charges of disseminating anti-Semitic and racist ideas and of incitement to hatred and acts of violence towards Jews and immigrants, despite undisputed evidence of the fact that his public speech during a Rudolf Hess commoration march contained serious, racist attacks against these groups, and, furthermore, open honouring and approval of Rudolf Hess’ "brave attempt save Germany and Europe from Bolshevism and Jewry under the Second World War", adding that the participants in the march "would not deviate from their [Adolf Hitler’s and Rudolf Hess’] principles and heroic efforts" but on the contrary "follow in their footpaths and fight for what we believe in, namely a Norway built on National Socialism".

The legal regime established by the majority of the Supreme Court in the judgment of 17. December 2002 violates the Authors’ rights under the Convention in two respects:

1. Norway does not fulfil its positive obligations under CERD Art. 4 to declare punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as incitement acts of violence against any race or group of persons of other colour or ethnic origin.
2. Norway does not fulfil its positive obligation under CERD Art. 6 to assure to everyone within their jurisdiction effective protection and remedies against any acts of racial discrimination.

All the Authors are directly affected by the breaches of the Convention and may thus claim to be victims of the violations. Furthermore, there are no further national remedies available that reasonably could be required to be exhausted.

In this petition, the Authors request the Committee to (1) declare that the petition is admissible, (2) to hold that there have been violations of Art. 4 and Art. 6 of the Convention and (3) to forward appropriate suggestions and recommendations to the Kingdom of Norway.

2. The Authors

2.1 The Jewish Communities of Oslo and Trondheim

Most of the Jews in Norway are members of the Jewish Communities in Oslo and Trondheim. These Communities have approximately 1000 members.

The situation for the Jews has deteriorated over the last years. There has been an increase in the dissemination of anti-Semitic ideas and other acts of racism. This may, of course, to a large extent be related to the conflict in the Middle East and the stigmatising effects of anti-Semitic ideas that are disseminated in this regard. These developments, taken together with the Supreme Court’s judgment in the Sjølie-case, have caused anxiety within the Community. Few of the members show their Jewish identity openly and harassment of Jews becomes more and more common. The Jewish Communities expect that more human and economic resources must be used in order to protect their members and institutions.

The above mentioned developments, of which the Sjølie-case is regarded an important factor, have caused the Jewish Community in Oslo to implement the following precautionary measures:

1. Increasingly more focus on security at the Community’s institutions, which will entail major reallocation of resources from the Community’s ordinary activities to preventive measures.
2. It is necessary to create a new function within the Community with responsibility to work against anti-Semitism.

2.2 Mr. Julius Paltiel

Mr. Julius Paltiel was born on 4. July 1924 in Trondheim Oslo. He was arrested by Norwegian police on 6. October 1942 and sent to Falstad concentration camp at Levanger. The camp was run by Gestapo. He was subsequently sent to prisons in Oslo together with all other Jews that had been arrested in Trondheim. In February 1943 he was set by ship to Germany and finally arrived in Auschwitz on 3. March 1943. His mother – together with many others – was immediately gassed to death. His brother had already been gassed to death.

Mr. Paltiel survived the work as a slave for I.G. Farben Industries. On 17. January 1945 he was ordered to start a death march to Gleiwitz concentration camp and, from there, in an open railway carriage to Buchenwald, where they arrived on 28. January 1945. The camp was liberated on 11. April 1945 and he managed to return to Trondheim on 5. June 1945. Upon his return he experienced that the family’s business, a menswear shop established in 1891, was ruined and robbed. He chose, however, to re-establish this business after the war.

Mr. Paltiel is today one of the two survivors of the Norwegian Jews that were deported to Germany during the war, who is still alive. He is the leader and Principal of the Jewish Community in Trondheim.

Mr. Paltiel has delivered countless speeches all over the country about his history, especially addressing schoolchildren. Because of this, he has on several occasions been threatened to be killed by Neo Nazis, both orally and in writing. In general the Neo Nazis accuse him of lying about his experiences during the war.

2.3 Mr. Rolf Kirchner

Mr. Rolf Kirchner was born on 12. July 1946.

His family too was deeply affected by the Nazi persecution and mass extermination of Jews during the Second World War. Both his grandfather and cousin were killed in Auschwitz. His father, mother, sister and brother were saved from extermination after having fled to Sweden.

Mr. Kirchner is the leader and Principal of the Jewish Community in Oslo. He has received serious threats directed to him on many occasions. Many of these have obviously been motivated by Nazi ideology, and some may be seen as results of public appearances made by him. At times he has been afforded police protection.

2.4 The Antiracist Centre in Oslo, Norway

The Antiracist Centre in Norway (ARC) is a non-profit, politically non-partisan institution which seeks to promote human rights and equal opportunities, and increase the understanding between the indigenous people and persons of non-Norwegian origin. ARC also provides individual assistance to persons who have become social, political and economic victims of racism and racial discrimination.

The Centre’s personnel consists of a dozen paid full-time employees and more than 100 voluntary workers of diverse national origins. Together, the ARC covers such areas as research and documentation in race relations, racism, legislative reform and lobbying, women's issues, problems of immigrants and refugees in their day-to-day living as well as racial discrimination and related matters.

The Centre’s work falls into two broad segments:

1. A source for information and expertise where individuals and organizations in Norway and abroad can obtain educational materials, practical assistance and information in the area of race relations.
2. An "ombudsman" against individual and institutional discrimination, racism and breach of human rights in Norway, as well as promoter of equal opportunity for immigrants, minority groups and women.

Among other activities, the ARC has monitored and analyzed the extreme right for more than two decades. An important part of that work has been, and is today, to counsel organisations, communities and individuals on how to deal with organized racist groups and their activities. One part of that work has been to give advice on how to react against distribution of racist propaganda. The Centre’s policy has been firm: Always encourage people to go to the police and file a complaint when racist material has been distributed. The possibility of filing a complaint with the police and thus initiate criminal proceedings has been seen as an important means in the fight against racism. This opportunity is, however, to a large degree rendered redundant in the light of the legal regime established by the Supreme Court’s judgment in the Sjølie case.

2.5 Nadeem Butt

Nadeem Iqbal Butt was born on 16. June 1969 in Gujrat, Pakistan. He was 16 years old when he arrived in Norway in order to be reunited with his father. He then lived in Stavanger with his family.

Mr. Butt has been an active participant in the immigrants’ community and worked for several immigrant organisations and committees. He has been the leader of ARC since May 2000. He is the managing director responsible for the daily operations of ARC, as well as being the spokesman of ARC and an active participant in public debate.

According to Mr. Butt, the main consequences, also for his work, of the Supreme Court’s judgment that:

1. One has lost an important weapon in the fight against racism, i.e. the opportunity to effectively use complaints in criminal cases as a means to fight racist propaganda..
2. Individuals belonging to a minority may now be harassed and have lost the right to protection.
3. The judgment has entailed consequences as regards negative attitudes towards immigrants and Jews, and consequently for their possibilities to function without particular problems in society.

3. The facts of the case

3.1 The Bootboys

3.1.1 Introduction – overview of Bootboys’ criminal record

Mr. Terje Sjølie is a leading figure in the Oslo based Nazi group Bootboys. The Rudolf Hess commemoration march at issue in this case, must be seen as part of the Bootboys’ "political" work.

However, probably no other Nazi group in Norway has gained such reputation for their willingness to use violence as Bootboys, and no other political group has seen such a high percentage of their members incarcerated for violent crimes. According to the Police Security Service, between 80 and 85 per cent of those connected with Bootboys have a criminal record.

Therje Sjølie, the group’s first leader, is presently serving a three years and six months sentence for attempted murder, after an incident in November 1998 in which he shot a rival Nazi four times in the upper body in an internal skirmish over stolen guns. Mr. Sjølie started serving this sentence after finishing a two years and seven months sentence, among other things for armed bank robbery. While on leave from prison Mr. Sjølie was charged again with armed robbery in May 2003. This case is still under investigation.

Other crimes committed by Bootboys members are arson attacks, several grievous assaults, bombings, mistreatment, and illegal possession of firearms, illegal possession of dynamite, and several occasions of knife stabbing. The list below provides some concrete examples:

7. February 1998: An African man was knife stabbed at Sinsen in Oslo by Nazis connected with Bootboys.

26. November 1998: Bootboys’ leader, Mr. Terje Sjølie, shot rival Nazi, Mr. Eirik Solheim, in an internal skirmish over stolen guns in Nittedal north of Oslo.

April 1999: Three Bootboys members hurled iron bars through the windows of a refugee centre in Oslo.

September 1999: Three Nazi activists broke into the home of a black youth in western Norway and cut him several times with a bayonet. They were all convicted to prison terms for racially motivated violence. One of them later founded Bootboys Kristiansand.

12. September 1999: Bootboys members firebombed two kebab joints run by immigrants in southern Oslo. The perpetrators left a message signed with "Masterrace 88".

4. March 2000: Several Nazis connected with Bootboys were arrested after the stabbing of two African men in Stavanger.

30. July 2000: The Jewish cemetery in Oslo was desecrated with painted slogans and swastikas. The perpetrators signed their work with Bootboys Oslo.

19. August 2000: Bootboys staged their Rudolf Hess commemoration March in Askim. The leaders of the march were arrested for driving a stolen car.

23. October 2000: The two Bootboys members, Mr. Terje Sjølie and Mr. Werner Holm, robbed a bank in the eastern town of Halden.

November 2000: A Nazi connected with Bootboys was arrested in Bergen after pouring gasoline at the entrance of a left-wing book cafe.

2. December 2000: Several Bootboys members were arrested after the knife stabbing and beating of a Pakistani man in Oslo.

11. December 2000: Bootboys claimed responsibility for the bombing of a car in an Oslo suburb.

15. December 2000: A Bootboys activist in Kristiansand threatened to shoot an African child in front of the shocked parishers of a local church.

1. January 2001: A young African man was almost killed when attacked in Kristiansand by several Bootboys members on New Year's Eve. The victim suffered a cranial fracture and brain haemorrhages.

8. January 2001: Local politician Mette Gundersen (Labour) filed a complaint to the police in Kristiansand against local members of Bootboys after violent threats.

26. January 2001: 15 year old Benjamin Hermansen was killed at Holmlia in Oslo. Three members of Bootboys are later found guilty.

20. March 2001: Two Bootboys members were arrested, charged with bombing a car in the Oslo suburb Bøler in December 2000. When searching the home of one of them, the police found an illegal handgun, ammunition and 500 grams of dynamite.

17. June 2001: A woman was heavily injured after Bootboys activists in Kristiansand were slashing her in the face with a broken glass.

30. November 2001: Two Bootboys members in Kristiansand was arrested for mistreating a 53 year old man outside a pub.

12. November 2001: A young man was attacked and heavily beaten by Bootboys activists while handing out antiracist leaflets in Kristiansand.

2. February 2002: A gay man was kicked unconscious by a known member of Bootboys in the town centre of Oslo one of them was later convicted to seven months prison in connection with this attack.

3.1.2 A short historical overview
The original Bootboys group was founded in the late eighties by Ole Krogstad from Hokksund south of Oslo. Krogstad, the former youth leader of Erik Blüchers now defunct National Peoples Party, formed his group as a skinhead group. Himself being convicted to ten months imprisonment for a bomb attack in 1985, Krogstad set the standard for what became a group ill-reputed for its violence.

One of the most serious incidents occurred on 28 December 1993, when Krogstad, together with several other Nazis attacked the anarchist youth house Blitz, hurling fire bombs at the building, and firing shots with a sawn-off shotgun when the youngsters inside the house tried to extinguish the fire.

Another incident was the "Vålerenga battle" in September 1994, when members of Bootboys and the now defunct nazi group Viking attacked the home of some antiracists in the residential area Vålerenga at the East End of Oslo. The Nazis attacked the house with lit torches, and the battles went on for several hours, with Nazis fighting with young antiracists and local residents.

3.1.3 The new Bootboys
While Ole Krogstad’s Hokksund-based group over the years sank into oblivion, another, and more politicised Nazi group, had emerged on the scene in Oslo. From 1993 to 1998 the group Viking caused concern among police, teachers and youth workers in the south-eastern suburbs of Oslo. Organising as much as 100 youngsters from 13 years of age, the military organised group stirred up considerable mayhem. The adventure ended when the police in March 1997 arrested several Viking members and charged them with plotting against the government. While no one was convicted as charged, the arrests among with efficient pro-active work from the police and local municipal authorities and the young activists willingness to inform on each others, caused a deep split among Norway's Nazis.

This split led to the formation of Bootboys Oslo in 1997. 63-year old Tore W. Tvedt, now in charge of the nazi-odinist sect Vigrid initiated the group. Tvedt recruited his followers among local skinheads from the eastern suburb Bøler. The young men soon broke away from Tvedt, as his demand for discipline and his ban on alcohol did not fit in with his intended followers.

One of the leading cadres of Bootboys Oslo was Terje Sjølie, who soon was going to gain notoriety for his violent actions.

3.1.4 Ideology

Bootboys subscribes to a traditional militant national socialist ideology, inspired by Adolf Hitler and Vidkun Quisling. According to Bootboys the world is ruled by a shadowy Jewish world government, described as ZOG (Zionist Occupation Government). According to this theory the Norwegian State is a puppet regime of ZOG, and ZOG also controls the court system and media.

Furthermore Bootboys deny the Holocaust and expresses opposition to abortion, homosexuality, "race mixing" and immigration.

In the Bootboys’ publications one can find a huge amount of articles that attacks Jews and immigrants. Among other things the magazine also had a regular column named "Terjes weapons corner". This column gave helpful tips about what handguns to purchase, and also stated that "every skinhead has a moral obligation to own a firearm".

As other groups with limited public support Bootboys have been cultivating contacts with similar militant right wing extremists around the world. Members of Bootboys have travelled abroad to meet with fellow Nazis. On their website one could find links to foreign groups like The White Aryan Resistance, The National Alliance and Stormfront. Bootboys members also had close contacts to Blood and Honour Scandinavia, some members even setting up a Norwegian branch of this outfit. In Norway Bootboys have had close contacts with Norway's National Socialist Movement and with the nazi-odinist sect Vigrid.

3.1.5 The Rudolf Hess commemoration march and its after-effects
The news about a planned commemoration march for Rudolf Hess in Oslo hit the media 8. August 2000. Bootboys applied three times for a permission to demonstrate in Oslo, all of them were turned down.

The participants of the march met in Askim, south east of Oslo. 38 persons, whereof 15 guests from Denmark and Sweden took part in the five minutes march via a 500 metres long route through the centre of Askim. A substantial percentage of the Norwegian participants had serious criminal convictions. (A video footage of the march and Mr. Terje Sjølie’s speech is submitted to the Committee as an Appendix to the present petition.)

The participants in the mach all wore semi-uniforms. Some carried the flag of the Southern States, thus underscoring the racist nature of the manifestation. Many of the participants had their faces covered. The march was headed by Mr. Terje Sjølie and Mr. Petter Gundersen, the latter wearing a balaclava, both of them carrying huge Norwegian flags. When reaching the Town Square Mr. Terje Sjølie held a speech to his fellow Nazis. The contents of the speech were (translation):

"We are gathered here to honour our great hero, Rudolf Hess for his brave attempt to save Germany and Europe from Bolshevism and Jewry under the Second World War. While we stand here, over 15 000 communists and Jew-lovers are gathered at Youngstorget in a demonstration against the freedom of speech and the white race!

Every day immigrants rob, rape and kill Norwegians, every day our people and country are being plundered and destroyed by the Jews, who sucks our country empty of wealth and replace it with immoral and un-Norwegian Thoughts.

We have been denied to march in Oslo three times, while the communists did not even need to ask. Is this freedom of speech? Is this democracy? But what does not kill us makes us stronger, and when we stand here today we show that we do not give up irrespective of whether we loose the job, the family or are been thrown into prison.

Our dear Führer Adolf Hitler and Rudolf Hess sat in prison for what they believed in, we shall not depart from their principles and heroic efforts, on the contrary we shall follow in their footsteps and fight for what we believe in, namely a Norway built on National Socialism!!

We stand here today because we are the last who realise that Norway is on its way down in the gutter and our children will be the ones suffering for today's failed and cowardly politics. When they one day ask what we did for our race and society, we shall be able to look them into the eyes and say that we sacrificed everything! Just like the person we are honouring today, our example Rudolf Hess!"

After the speech Mr. Sjølie asked for one minutes silence for Rudolf Hess. Afterwards, the crowd, led by Mr. Sjølie, repeatedly made the Nazi salute, while shouting Sieg Heil! They then left the scene and drove away.

The most immediate after-effect of the Hess march seems to have been the formation of a Bootboys branch in Kristiansand. For the next twelve months the city was plagued with several incidents of serious violence directed against blacks and political opponents.

The local newspaper Fædrelandsvennen and local politicians expressed their deepest concern about the situation, and the police spent considerable resources to calm down the situation. Things did not calm down before two of the leaders, Mr. Mikkel Vetvik and Mr. Kim Hugo Hansen moved on to Bergen. After moving, the two continued their activities in Bergen.

In the Oslo area the march seems to have given Bootboys new self-confidence, and there was a growth in Nazi activity. Several violent incidents took place, and things did not calm down before after the murder of 15 year old Benjamin Hermansen in January 2001. Both Ms. Veronica Andreassen and Mr. Ole Nicolai Kvisler, who were convicted in this case, participated in the Hess commemoration march. Mr. Kvisler was, it must be recalled, convicted for murder under particularly aggravating circumstances due to the racist motive which had inspired him. Mr. Kvisler was a very visible and active participant in the Rudolf Hess commemoration march, while Ms. Andreassen marched masked with a balaclava. It must also be added that Mr. Kvisler, Mr. Jahr and Ms. Andreassen were all present when a young Pakistani man was stabbed and beaten in Oslo early in December 2000.

3.1.7 Bootboys today

The public outrage after the killing of Benjamin Hermansen and all the negative attention Bootboys have received has made it difficult for the group to maintain the same level of activity. Several of its core members have received long prison sentences, while others have felt the pressure from the authorities hard. At present the activity in the group seems to be low. The group has no website, no magazine and a number of its members have gone more or less passive or are incarcerated after receiving long prison sentences. However, it is reasonable to believe that the Hess commemoration march gave inspiration to a wave of violent activities, leading to injuries and probably even to the death to some of those pointed out as the group’s enemies.

3.1.8 The Criminal proceedings against Mr. Terje Sjølie

Some of the persons that had been watching the Rudolf Hess commemoration march filed a complaint with the police (Appendix 6). As the march and the speech had been filmed, and moreover because Mr. Sjølie’s notes for the speech were seized by the police, there is no uncertainty as regards the salient facts of the case.

On 23. February 2001 the District Attorney of Oslo charged Mr Sjølie with violation of section 135a of the Norwegian Penal Code. This provision reads (translation):

"Any person shall be liable to fines or imprisonment for a term not exceeding two years who by any utterance or other communication made publicly or otherwise disseminated among the public threatens, insults, or subjects to hatred, persecution or contempt any person or group of persons because of their creed, race, colour or national or ethnic origin. The same applies to any such offensive conduct towards a person or a group because of their homosexual bent, life-style, or inclination.

The same penalty shall apply to any person who incites or is otherwise accessory to any act mentioned in the first paragraph."

This provision is regarded as the implementation of the undertakings under Art. 4 of the Convention in Norwegian law.

On 16. March 2001 he was acquitted by Halden City Court. Upon appeal, he was convicted by Borgarting Court of Appeal for his statements in his speech about the Jews. The Court of Appeal held that Mr. Sjølie’s speech at least had to be understood as accepting mass extermination of Jews, and, accordingly, section 135a of the Penal Code was violated. According to the Court of Appeal, the statements about the immigrants were, however, protected by the right to freedom of speech.

Mr.Sjølie’s appeal against the conviction was heard by the plenary Supreme Court. This underpins that the case, in the Supreme Court’s view, raised legal questions of important principle regarding the interpretation of section 135a of the Penal Code. The most important consequence of the judgment was thus not the acquittal of Mr. Sjølie as such, but that the Supreme Court provided an authoritative interpretation of the said provision. The Sjølie-judgment will thus be a legally decisive precedent and form the basis for the decisions in all other cases pertaining to the interpretation of section 135a of the Penal Code before Norwegian Courts,

The Supreme Court handed down its judgment on 17. December 2002 (Appendix 7).The majority (11 judges) decided in favour of Mr. Sjølie and acquitted him of the charges. The minority (6 judges) would dismiss the appeal and confirm the judgment of the Court of Appeal.

Significantly, in the majority’s legal analysis, the general point is made that the CERD does not entail an obligation to prohibit dissemination of ideas of racial superiority. The very clear statements by the Committee to the opposite, see item 5.2 below, are not discussed.

In the Supreme Court’s judgment, little attendance is given to the obligations undertaken by Norway under the CERD. The general view is expressed by the Supreme Court that Art. 4 of the Convention hardly could be taken to provide more extensive protection than what flows from section 135a of the Norwgian Penal Code as interpreted by the majority. The majority does not discuss the contents of the Convention any further and thus deprives the Convention of any real significance in the matter.

The majority also expresses the view that penalising approval of Nazism, would in practice amount to prohibition of Nazi organisations. That would, according to the majority, be to go too far. The very clear statements by the Committee calling for penalising membership in racist organisations are not mentioned, see item 5.2 below.

Accordingly, the Supreme Court’s judgment is based on the general view that dissemination of ideas of racial superiority is not punishable, but rather protected by the right to freedom of expression. In addition, the Supreme Court’s judgment is based on the general view that Nazi organisations cannot be prohibited, leave alone that membership in such organisation can be penalised. The Supreme Court’s judgment will amount to an authoritative interpretation of section 135a of the Penal Code, and the legal regime thus established will effectively restrict the application of this provision in any subsequent case before the Norwegian court. The Supreme Court’s judgment is therefore decisive for the level of protection against dissemination of racist ideas afforded under Norwegian law.

In the application of the law the facts of the case, the majority furthermore disagreed with the Court of Appeal as to the interpretation of Mr. Sjølie’s speech. According to their view, the statements about the Jews were part of Nazi rhetoric. Today, the majority said, such statements appear stereotyped and may be understood as nothing more than general support to National Socialist ideology. The majority could not accept that the speech amounted to approval of the persecution and mass extermination of Jews during the Second World War. Support to Nazi ideology may not, the majority said, necessarily imply acceptance of mass extermination or other systematic and serious acts of violence against Jews or other groups. According to the majority, there was nothing particular that linked Rudolf Hess to the extermination of Jews. Furthermore, many Nazis denied that the mass extermination of Jews actually happened, and the Court knew nothing about Mr. Sjølie’s opinion on that matter.

In addition, the majority held that it was not of significance for the interpretation of the utternaces in the speech that the participants in the march wore semi-uniforms, that many were masked, or that they made the Nazi salute and shouted "Sieg Heil". It was pointed out that those who listened to the speech could speak against the Nazis, and that some expressed their dismay.

On this background the majority concluded that the speech contained derogatory and offensive statements, but that no threats were carried out and no instructions to take any other concrete actions were given. The Majority thus held that Mr. Sjølie’s statements were not so seriously offensive that section 135a of the penal Code was violated.

The minority disagreed and held that the majority had given too much weight to the right to freedom of expression at the cost of the need for protection against racist speech. The minority opposes to the purely linguistic interpretation undertaken by the majority, and puts emphasis upon how the statements must have been perceived by the onlookers, taken into account the context, i.e. semi-uniforms, masks, Nazi salutes and several "Sieg Heil"’s. The minority also presupposed that the onlookers had at least a basic knowledge about Hitler’s and the Nazi’s views on Jews, and about the persecution and subsequent extermination of the Jews before and during the Second World War. In the light of this, the minority said, the speech had to be understood as an acceptance and approval of the mass encroachments against Jews in our recent history. The Court of Appeal had, moreover, confirmed that Mr. Sjølie himself must have acknowledged that the statements would be understood in this way, and that he thus was aware of the opinion which most people had about the treatment of the Jews before and during the Second World War. Thus, section 135a of the Penal Code was clearly violated, according to the minority.

The minority and majority agreed, however, that the statements concerning immigrants were protected by Mr. Sjølie’s freedom of expression. These statements had to be regarded as part of the general debate on these issues. The statements were regarded as tasteless, but not beyond what is protected by the freedom of expression as secured by Section 100 of the Norwegian Constitution.

Obviously the Supreme Court’s judgment will affect the pracyice of the Public Prosecurtion in similar matters. Shortly after the judgment had been handed down, The Director of Public Prosecution (DPP) (Riksadvokaten) expressed the view that the Supreme Court in general had allowed the statements about the immigrants and that there would be no criminal prosecution in similar cases. He also expressed fear that more people would utilise the opportunity that now had been created to disseminate such utterances. (A video tape containing the interview with the DPPis appended to the present petition, together with a transcript and translation of his statements – Appendix 8.) In a newspaper interview, he also expressed the view that there would be of little avail to try and prohibit a Nazi march. He feared that Norway would be a safe haven for Nazi marches, due to the prohibition of such marches in Norway’s neighbouring countries. (Interview in the newspaper Bergens Tidende is submitted as Appendix xx).

4. Admissibility

1. The Authors may claim to be victims of a violation of Art. 4 and Art. 6 of the Convention

The Authors claim that they are victims of violations of Art. 4 and Art. 6 of the Convention caused by the failure of the Kingdom of Norway to secure for them protection and remedies against the grave anti-Semitic and racist propaganda, and incitement to racial discrimination, hatred and violence, at issue in the Sjølie-case. Furthermore, they claim to be victims of violations of the said provisions of the Convention caused by the general inability of Norwegian law to protect them adequately against dissemination of anti-Semitic and racist propaganda, and incitement to racial discrimination, hatred and violence, established by the Supreme Court’s judgment of 17. December 2002.

At the outset, it must be reiterated that Art. 4 of the Convention gives rise to individual rights and freedoms, the violation of which may be the subject of an individual petition procedure. The inter-state colouring of the wording of CEDR Art. 4 does not reflect any difference in substance from other substantive clauses in international Human Rights instruments. Rather, it might reflect a desire to give greater solemnity to the commitment undertaken by the States Parties. The wording reflects the fact that the primary obligation in this field is not the one of abstention or non-interference, but one of adoption by the state of positive measures to outlaw and punish all dissemination of racist propaganda and incitement to racial discrimination, hatred and violence. Accordingly, there will be a wide range of potential victims of a breach by the state to fulfil its positive obligation to afford the protection by criminal law as required by Art. 4 of the Convention.

The Committee has, it seems, not yet had the opportunity to express its view on the interpretation of the "victim" requirement in comparable cases. However, both the Human Rights Committee (HRC) and the European Court of Human Rights (ECHR) have dealt with similar issues. Because the "victim" requirement is framed in more or less the same way in all three conventions, the case law under the Optional Protocol to the International Covenant on Civil and Political Rights (CCPR) and the European Convention of Human Rights provides important guidelines also for the Committee’s decision on admissibility under CERD Art. 14.

In Toonen v. Australia the HRC held that Mr. Toonen could claim to be a victim of a violation of his right to privacy caused by Tasmanian law which criminalized sexual behaviour between adult consenting males. This was accepted by the HCR even though the Tasmanian police had not charged anyone under this law for many years. The reasons why Mr. Toonen could claim to be a victim were mainly the stigmatizing effects of the law. The ECHR came to the same conclusion in the comparable case of Dudgeon v. the United Kingdom. This line of cases shows clearly that the victim requirement may be fulfilled by all members of a group of persons on an equal footing; In these cases the group of potential victims comprised all homosexual males in Tasmania and the United Kingdom, respectively. More significantly, this line of cases proves that a member of the group might be a victim of a violation caused by a legal regime as such, without any concrete act of enforcement of the law in relation to the individual Author. These two points were even more clearly stated by the HRC in Ballantyne et al. v. Canada – a case concerning the prohibition in Quebec of the use of the English language in public bill-posting:

"The Committee has further reconsidered, eo volonte, whether all the authors are properly to be considered victims within the meaning of article 1 of the Optional Protocol. In that context, it has noted that Mr. Ballantyne and Ms. Davidson have not received warning notices from the Commissioner-Enquirer of the "Commission de protection de la langue francaise" nor been subjected to any penalty. However, it is the position of the Committee that where an individual is in a category of persons whose activities are, by virtue of the relevant legislation, regarded as contrary to law, they may have a claim as "victims" within the meaning of article 1 of the Optional Protocol." (Emphasis added.)

In all these cases, the mere existence of the domestic legislation directly affected the rights of the individual victims, and their applications were thus admissible even in the absence of any concrete act of enforcement against the complainant. By the same token, the applicants’ right under Art. 4 and Art. 6 of the Convention are directly violated by the failure of Norwegian law – as established by the Supreme Court’s judgment of 17. December 2002 – to afford the required protection and remedies. The applicants may thus – together with any other Jew, immigrant or others facing an imminent risk of suffering from racial discrimination, hatred or violence – claim to be victims of the violations of Art. 4 and Art. 6 of the Convention.

Furthermore, the effectiveness (l’effet utile) of the Convention requires that petitions may be lodged even in the absence of any concrete confrontation between the racist advocate and his victims. First, it must be recalled that the ratio behind the prohibition of dissemination of ideas of racial superiority is not only to protect the public against the concrete speeches, but also to protect against the effects of propaganda containing incitement to racial discrimination, hatred or violence, see CERD Art. 1 (1). Second, the group of protected individuals extends beyond those who are directly exposed to e.g. racial hatred. It is the mere dissemination of such ideas that must be penalised in order to fulfil the obligations under the Convention. Third, it is quite evident that the addressees of racist speech are fellow white persons and not the Jews, immigrants or others who are the targets of their attacks. Thus, unlawful racist speeches may often – and may be even as a rule – be delivered in settings where no potential victims are present. If no right to complain to the Committee existed in such cases, these acts of racism would remain unchallengeable, and the protection afforded under the Convention reduced to a nullity. Thus, it is absolutely necessary to extend the right of petition to the protected group as such, in order to maintain a minimum of effectiveness in the protection afforded by the Convention.

The admissibility of the present petition has even stronger support in another line of cases, i.e. cases recognising the right of potential victims to lodge a petition. Thus, a petition will be accepted if the petitioner runs the risk of being subjected to a law or practice which would be in breach of the rights secured by the Convention. Cases concerning secret surveillance are examples. In these cases, however, special considerations apply. Nevertheless, in the case of Klass v. Germany the ECHR makes the following observation in para. 37, which may be taken to carry more general implications:

"Furthermore, as the Delegates rightly pointed out, this menace of surveillance can be claimed in itself to restrict free communication through the postal and telecommunication services, thereby constituting for all users or potential users a direct interference with the right guaranteed by Article 8." (Emphasis added.)

A similar point was made by the European Commission of Human Rights in the case of Campell and Cosans v. the United Kingdom. In these cases it was accepted that a schoolboy could claim to be a victim of ECHR Art. 3 due to the existence of corporal punishment as a disciplinary measure in the school he attended – despite the fact that he himself had never been subjected to such corporal punishment. The general threat of being subjected to such treatment was enough to substantiate his claim to be a victim of a violation. In general, it seems to be required that the alleged victim’s risk of being affected is more that a theoretical possibility.

The existence of violent, Nazi groups taken together with the state of Norwegian law on this point, necessarily entail for all the applicants a real and imminent risk of being exposed to the effects of dissemination of ideas of racial superiority and incitement to racial hatred and violence, without them being protected against this by criminal law as required by Art. 4 of the Convention, nor being afforded any remedies as required by Art. 6 of the Convention. It is clear that racist advocacy contrary to the Convention will occur, and, furthermore, that Norwegian law does not afford the required protection or remedies. Thus, there is a general threat of suffering from the effects and consequences of racist advocacy which is no longer regarded as criminal offences according to Norwegian law. The risk of being affected is obviously more than a theoretical possibility.

Accordingly, all the Authors may claim to be victims of violations of their rights under the Convention.

In addition to this, all the Authors are also directly and concretely affected by the violations.

First, it goes without saying that marches and speeches like this are deeply disturbing for a person like Mr. Paltiel who has personally experienced the horrors of the holocaust. In addition, he has experienced very serious threats to his life from Neo-Nazis because of his educational work. He has a right under the Convention to be protected against the imminent risk of being exposed to racist and anti-Semitic propaganda and against the danger of being exposed to the effects of such propaganda, i.e. the threats and possibly the execution of the threats. The failure of Norwegian law in this respect, caused by the Supreme Court’s judgment of 17. December 2002, violates his right to protection by criminal law against such abuses. He may clearly claim to be a victim of these violations. The same considerations are applicable to Mr. Kirhner, who’s family also were deeply affected by the persecution of Jews during the Second Worlds War.

Second, it must be recalled that the applicants are organisations with a special task of protecting the interests of Jews and to work against racism. In addition, the organisations’ leaders are Authors. The Supreme Court’s judgment of 17. December 2002 affects directly the work and tasks of the Authors. The consequence of the judgment is that Norwegian criminal law is unable to afford the protection required by the Convention. Thus, the Authors may no longer in their work rely on criminal prosecution as a means of protection against racist advocacy. This point was e.g. emphasised by Ms. Berit Reisel, a former leading person in the Jewish Community, in her article in Aftenposten (a Norwegian newspaper) after the judgment was handed down (Appendix 9) (translation):

"It will be even more difficult to work for a change in peoples attitudes towards racism, anti-Semitism and Nazism when the highest court of the country has given legitimacy exactly to these activities by its acquittal of Mr. Terje Sjølie on 17. December."

In effect, the Supreme Court is handing over the task of offering the necessary protection against the effects and consequences of racist advocacy to private organisations, their leaders and staff. The Supreme Court, it seems, advocates the view that the battle against racist ideas should be fought solely in the public, open debate, and not through criminal law. This is not at odds with the requirements of the Convention, and, moreover, creates new responsibilities for those who are the direct targets of racial discrimination, hatred and violence; they must themselves – or through their organisations – stand up and rebut racial speech when it occurs, as the state is no longer offering protection through its criminal law. This alone shows clearly that the Authors is directly affected by the legal regime established by the Supreme Court’s judgment of 17. December 2002, and thus have the right to petition to the Committee.

Third, the Authors’ work against anti-Semitism and racism has been concretely affected in many ways. They have been deprived of the opportunity to effectively use complaints to the police, and thus to rely on criminal prosecution, as a means in their work. As explained by the Jewish Community in item 2.1 above, the Sjølie-judgment, taken together with other developments, has made it necessary to increase focus on security and to allocate more resources to this part of the Community’s work. It has also been necessary to create a new function within the Community with the task of working against anti-Semitism.

Finally, According to Art. 6 of the Convention all of the Authors had a right to a remedy against the Mr. Sjølie’s dissemination of ideas of racial superiority and incitement to racial hatred and violence. This, however, was denied to them by the Supreme Court’s judgment, both in regard of the utterances at issue and, as a consequence of the judgment, in regard of future utterances of a similar nature. Also in this regard the Authors may claim to be victims of a violation of the Convention.

4.2 Exhaustion of local remedies

The Authors have no available local remedies that reasonably could be required to exhaust.

There are no specific body created by Norwegian authorities that is designated to receive petitions from individuals claiming to be victims of a violation of the Convention. Thus, the only possible avenue is through the domestic courts. In this regard a few pivotal points shall be made:

1. The judgment by Supreme Court is final, and there are no possibilities for further appeal from the Supreme Court.
2. There is no available action in domestic law under which the grievances at issue could be dealt with.
3. In any event, the Sjølie case was heard by the plenary Supreme Court. Thus, the restrictive interpretation of section 135a is established by the Supreme Court with great legal authority. The Supreme Court’s interpretation will be followed by subordinate courts – and also the Supreme Court itself – in future cases. It follows from this that any attempt to challenge the judgment in proceedings before Norwegian courts would be obviously futile, and it cannot reasonably be required under the Convention that fresh proceedings should be instituted by the Authors before a petition is lodged with the Committee.
4. Furthermore, the Convention and other international human rights treaties were at issue in the proceedings before the Supreme Court. Thus, the domestic courts have not been denied the possibility of exercising the primary review of the state’s obligation under the Convention. Thus, the subsidiary principle – which may be seen as the reason behind the exhaustion of domestic remedies rule – has been respected in this case.

4.3 Conclusion

The Authors submit that the communication is admissible, as they can claim to be victims, or at least potential victims, of a breach of Art. 4 and Art. 6 of the Convention. Furthermore, there are no available remedies in domestic, Norwegian law that reasonable can be required to exhausted.

The Authors are not aware of any other grounds for inadmissibility that might be applicable in the present case.

5. The violations of the Convention

5.1 The complaints

The Authors complain that the Supreme Court’s judgment of 17. December 2002 violated Art. 4 and Art. 6 of the Convention in that;

1. they were not afforded protection and remedies against the dissemination of ideas of racial discrimination and hatred, as well as incitement to such acts and acts of violence during the Rudolf Hess commemoration march on 19^th August 2000, and
2. they are not, due to the legal effects of the Supreme Court’s judgment of 17. December 2002, afforded protection and remedies in Norwegian law at the level required by the Convention.

5.2 The law under the Convention

It follows from CERD General Recommendation 15, para. 3, that CERD Art. 4 (a) requires States parties to penalise four categories of misconduct:

1. Dissemination of ideas based on 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.
4. Incitement to such acts.

Many States Parties to the Convention have seeked to refer to the "due regard" clause in Art. 4 of the Convention in order to limit their obligations to penalise dissemination of ideas of racial superiority or racial hatred. However, it follows from CERD General Recommendation 15, para. 4, that, in the Committee’s view, the prohibition of the dissemination of all ideas based upon racial superiority or hatred is compatible with the right to freedom of opinion and expression. This has also recently been emphasised in the Committee’s concluding observations in regard to Norway. The acceptability of the said limitation of the freedom of speech in cases of racial discrimination is, furthermore, supported by Art. 20 of the International Covenant on Civil and Political Rights. According to this provision any advocacy of national, racial or religious hatred which constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

Furthermore, CERD General Recommendation 15, para 6 confirms that organisations which promote and incite racial discrimination shall be prohibited. These organisations, as well as organised and other propaganda activities, have to be declared illegal and prohibited. Participation in these organisations is, of itself, to be punished. Norway’s failure to fulfil these obligations have been noted with concern by the Committee on several occasions

In this regard, it must also be recalled that it is fully acceptable that a state protects a democratic society against anti-democratic propaganda and other anti-democratic political activity. Reference is made to the case law of the European Court of Human Rights concerning prohibition against radical Muslim parties advocating use of violence and other anti-democratic measures.

Consequently, there is no basis for the Supreme Court’s restrictive interpretation of Art. 4 of the Convention, claiming that there is no requirement to penalise dissemination of ideas of racial superiority. On the contrary, it follows with great clarity from the recommendations and comments made by the Committee that the States Parties have an obligation to penalise all four categories of racial discrimination listed in Art. 4 of the Convention. It seems to follow from the Supreme Court’s judgment itself that Mr. Sjølie’s statements amounted to dissemination of ideas of racial superiority, even when applying the very restrictive, linguistic approach adopted by the majority of the Supreme Court. Furthermore, the statements about immigrants also amounts to dissemination of racial superiority as there was no disagreement that Mr. Sjølie was aiming at coloured immigrants. Furthermore, in the Neo-Nazi context and taken into account the Bootboys’well-known aggressive and violent behaviour, these statements also amounted to incitement to racial hatred and violence. In fact, history shows that immigrants were those who were most exposed to violence from this group, finally leading to the tragic death of 15 years old Benjamin Hermansen.

The reasoning of the majority of the Supreme Court seems to underestimate the dangers of what is labelled "stereotyped" "Nazi rhetoric". It must be recalled that the object and purpose of Art. 4 of the Convention, as well as Art. 20 CCPR, is to combat the horrors of fascism, racism and National Socialism at their roots, i.e. to prevent the public incitement to racial hatred and violence. In this regard, it must also be taken into account the worrying developments among extreme right-wing groups in Western and, especially, Eastern Europe. Dissemination of racist and anti-Semitic propaganda is, it seems, as a rule followed up by violent action. In its Annual Report 2002, dated 20. March 2003 the European Commission against Racism and Intolerance made the following observations concerning "main trends" in 2002:

 

"2. The persistence of racial discrimination, which is closely-linked to the lack of effective anti-discrimination legislative provisions in most member States, is a fundamental problem in Europe, which is constantly highlighted in ECRI's reports. This problem is compounded by the unsatisfactory implementation of existing anti-racist provisions, such that those provisions which do exist seem far removed from the everyday experiences of the persons they are designed to assist.

3. It is within this context that ECRI adopted, on 13 December 2002, its general policy recommendation No 7 on national legislation to combat racism and racial discrimination. In this text, ECRI calls for legal protection to be provided against racist acts and discrimination on the grounds of "race", colour, language, religion, nationality or national or ethnic origin.

4. The inclusion of such a list of prohibited grounds of racism and racial discrimination is based on the experience developed by ECRI in the context of its analyses of manifestations of racism in the various member States of the Council of Europe.

5. ECRI, as a moral authority in the fight against racism in Europe, supports and promotes the principle that national legislations should offer sufficient protection against all contemporary forms of racism and racial discrimination. Today, these phenomena are based on a wide range of grounds, including "race", colour and ethnic origin, but also nationality, language and religion. In reality, it is often impossible to separate these grounds one from the other.

6. The year 2002 sadly saw an increase in the dissemination of antisemitic ideas and in acts of violence perpetrated against members of Jewish communities and their institutions. ECRI also deplores the growing spreading dissemination of antisemitic material, both via the Internet and other channels of communication."

Moreover, the failure of Norwegian Authorities to implement legislation in instances of racism and discrimination has e.g. been noted with concern by the European Commission against Racism and Intolerance in its Second Report on Norway, adopted on 10. December 1999, see para. 50 of the report. This problem has, of course, been exacerbated by the Supreme Court’s judgement in the Sjølie-case. The Prosecuting Authority has no longer any legal grounds for criminal charges against Nazi propaganda, and must terminate any planned criminal prosecution in similar cases. Reference is made to item 3.1.8 above.

In the light of this, the Supreme Court’s restrictive interpretation of section 135a of the Penal Code, is unacceptable both as a national and as an international standard for the protection against acts of racism. In the light of the concern expressed by international supervisory organs, the approach adopted by the majority of the Supreme Court would be a setback for the international endeavours to fight racism and anti-Semitism.

Accordingly, there has been a breach of Art. 4 of the Convention. Consequently, there has also been a breach of Art. 6 of the Convention, as the legal regime established by the Supreme Court necessarily implies that no remedies, such as a compensations claim, can be brought before Norwegian courts as long at the Supreme Court’s judgment of 17. December 2002 is the prevailing law.

However, the Convention guarantees have in fact been diminished to a greater extent that this, because the majority’s interpretation of Mr. Sjølie’s speech is too linguistic and is not at odds with what must have been the common conception among those who have heard it. Thus, the majority of the Supreme Court in fact afforded protection to very serious incitement to hatred and approval of the mass extermination of Jews. As explained by the minority, anyone with a basic knowledge of history could not escape the conclusion that Mr. Sjølie in his speech accepted and encouraged violent attacks on Jews and immigrants, and even accepting and pay homage to the mass extermination of Jews. The open approval of the principles and efforts of Adolf Hitler and Rudolf Hess during the Second World War, cannot reasonably be understood otherwise. Furthermore, the declaration that the group would follow in their footsteps and fight for what we believe in, had to be understood as acceptance and incitement to violent acts against Jews and immigrants. The Nazi salutes and shouting of "Sieg Heil!" made it absolutely clear that this was not a peaceful or somewhat confused gathering of Nazi’s, as the majority of the Supreme Court seems to believe. Taking also into account the Bootboys’ record of very serious criminal activity, including the use of violence, the commemoration march must have appeared very frightening and the incitement to use violence was evident.

In addition to this, the Supreme Court approves the inability of Norwegian authorities to penalise membership in racist organisations. This is also clearly in breach of Norway’s obligations under the Convention, as is evidenced by several comments by the Committee during the assessment of Norway’s periodic reports.

To sum up: The Supreme Court’s judgment of 17. December 2002 violates Art. 4 and Art. 6 of the Convention on several counts.

Procedure

The Authors are ready to participate in the Committee’s meetings in order to provide additional information and to answer questions, if so required, see Rule 94(5) of the Committee’s Rules of Procedure.

7. Conclusion and request to the Committee

The Authurs submit that their petitions are admissible.

Furthermore, the Authors claim that the Supreme Court’s judgment of 17. December 2002 violated Art. 4 and Art. 6 of the Convention in that;

1. they were not afforded protection and remedies against the dissemination of ideas of racial discrimination and hatred, as well as incitement to such acts and acts of violence during the Rudolf Hess commemoration on 19^th August 2000, and
2. they are not, due to the legal effects of the Supreme Court’s judgment of 17. December 2002, afforded protection and remedies in Norwegian law at the level required by the Convention.

On the basis of all the above arguments, the Authors respectfully request the Committee to;

1. Declare the communication admissible.
2. Hold that Art. 4 and Art. 6 of the Convention are violated.
3. Forward appropriate suggestions and recommendations to the Kingdom of Norway.