Ghetto Law: Danish Race Law

Mohammad Alkhateeb

In the News

The New York Times reported in 2018 on what has become known as Denmark’s Ghetto Laws. The term ‘ghetto’ has been present in the Danish public sphere since 2004. Districts within the Danish territory will be categorised as such (now transformation areas) depending on the income of the neighbourhood’s residents, their education levels, employment status, the number of criminal convictions and whether or not the residents are of a Western background.

The law dictates that, from age one, children from areas designated as ghettos will be separated from their families for a minimum of 25 hours per week. During those hours, they will be instructed in Danish values, language and traditions. All the while, other citizens are under no compulsion to enrol their children in pre-school before the age of six.

The law equally entails forced evictions from the areas with those evicted having ‘no control over location or cost’ of their place of rehousing. Indeed, neighbourhoods branded as ghettos will see their residents become subjected to ‘eviction of tenants, the demolition of municipal housing stock and stiffened criminal penalties’. The intended outcome of this law is to limit the number of non-western residents of each neighbourhood to 30% or less and to eradicate what the Danish administration describes as parallel societies.

The Danish courts have sought the guidance of the European Court of Justice (ECJ), seeking a ruling on whether the new law is considered to be discriminatory. The ECJ has ruled that it could indeed be considered as such, but that the final decision on the matter should be made by the courts of Denmark.

Abnormal Legislation

The peculiarity in question here is that the law does not apply equally to everyone in Denmark, it contains provisions that explicitly apply against certain categories of the population, whilst sparing other categories, depending on their race or ethnicity. The law equally imposes compulsory action which goes beyond the norm in a liberal democracy, affecting fundamental aspects of the life of citizens and residents of Denmark, particularly private and family life (protected under Article 8 of the European Convention on Human Rights (ECHR)) and housing.

The residents of Mjolnerparken, one of Copenhagen’s neighbourhoods designated as ghettos, brought a case to the Eastern High Court of Copenhagen seeking a ruling that the government’s move to sell a considerable number of homes in the district is unlawful, on the ground that it amounts to discrimination under EU law, domestic law and the ECHR. The claimants submit that ‘the approved plan puts racial or ethnic minorities at a particular disadvantage and is not objectively justified by a legitimate aim’, stating specifically that ‘the removal of residents with non-western background is not a legitimate aim’.

Discrimination

The law imposes restrictions on some Danish citizens, primarily as a result of their descent and their place of residence. Their non-western background, being the determinant of their descent, is an indispensable condition, meaning it can be said that the law applies to them as a result of their descent. This would only suggest that Danish citizens are being subjected to irregular compulsory measures and deprived of certain freedoms.

With the ordinary meaning of the word discrimination, it is clear that aspects of this new law do in fact amount to discrimination, because the law applies to some citizens but not to others, without a clear justified aim beyond that of achieving a certain demographic balance in each given neighbourhood.

Where it relates to forced evictions, the constitution dictates that ‘the right of property shall be inviolable. No person shall be ordered to cede his property except where required by the public weal. It can be done only as provided by Statute and against full compensation’. The public weal is more widely known as the public interest. It is evident and indisputable that certain persons are being ordered to cede their properties, or forcibly forfeit their right to reside in a given property, and are being relocated against their will.

The  question then becomes whether this course of action is truly serving the public interest. To decide this matter, the court may undertake a balancing exercise, determining whether the situation, prior to the introduction of the law, was detrimental to the public interest, and estimating the proportion of the population being disadvantaged and the extent of the disadvantage being suffered by that segment of the population.

The determining factor will be to balance the potential advantage gained in favour of the public interest on one hand, and the disadvantage being suffered as a result of the violation of constitutional property rights on the other hand. This brings up questions of necessity and proportionality.

The Danish government would claim that the measures are necessary to tackle parallel societies, enhance social cohesion on a national scale and ensure that ethnic minorities do not become majorities in any given area. Although some merit can be accorded to the former as a legitimate aim in the context of the furtherance of the public interest, particularly since laws must bear some reflection of social and cultural norms and ‘conformity is central to Danish Culture’, the same cannot objectively be said for the latter.

Final Thoughts

It is highly unlikely that any court in Denmark would regard the act of ‘ensuring that ethnic minorities do not become majorities in any given area’ is a legitimate aim. Denmark is  ‘one of the countries in Europe with the least ethnic segregation’.

Additionally, the University of Copenhagen and Statistics Denmark have both reported that only 5.3% of non-western migrants live in neighbourhoods designated as ghettos.

It would therefore appear that the perceived issue being addressed is relatively minimal in the Danish context, meaning in turn that the response, in the form of the ghetto law, is disproportionate in constitutional terms as well as being an act of discrimination based on race and ethnicity.

Furthermore, the courts of Denmark are likely to view this law as objectively discriminatory, because it applies to some citizens and residents on the basis of race, residence and economic status, but not to other citizens.