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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 10 August 1988,
Having concluded its consideration of communication No. 1/1984, submitted to
the Committee by H.F. Doeleman on behalf of A. Yilmaz-Dogan under article 14
of the International Convention on the Elimination of All Forms of Racial
Discrimination,
Having taken into consideration all written information made available to it
on behalf of Mrs. A. Yilmaz-Dogan and by the State party,
Bearing in mind rule 95 of its rules of procedure requiring it to formulate
its opinion on the communication before it,
Including in its opinion suggestions and recommendations for transmittal to
the State party and to the petitioner under article 14, paragraph 7 (b), of
the Convention,
Adopts the following:
Opinion
1. The communication (initial letter dated 28 May 1984, further letters
dated 23 October 1984, 5 February 1986 and 14 September 1987) placed before
the Committee on the Elimination of Racial Discrimination by H.F. Doeleman,
a Netherlands lawyer practising in Amsterdam. He submits the communication
on behalf of Mrs. A. Yilmaz- Dogan, a Turkish national residing in the
Netherlands, who claims to be the victim of a violation of articles 4 (a), 5
(e) (i) and 6 of the International Convention on the Elimination of All
Forms of Racial Discrimination by the Netherlands.
2.1 The petitioner states that she had been employed, since 1979, by a firm
operating in the textile sector. On 3 April 1981, she was injured in a
traffic accident and placed on sick leave. Allegedly as a result of the
accident, she was unable to carry out her work for a long time; it was not
until 1982 that she resumed part-time duty of her own accord. Meanwhile, in
August 1981, she married Mr. Yilmaz.
2.2 By a letter dated 22 June 1982, her employer requested permission from
the District Labour Exchange in Apeldoorn to terminate her contract. Mrs.
Yilmaz was pregnant at that time. On 14 July 1982, the Director of the
Labour Exchange refused to terminate the contract on the basis of article
1639h (4) of the Civil Code, which stipulates that employment contracts may
not be terminated during the pregnancy of the employee. He pointed, however,
to the possibility of submitting a request to the competent Cantonal Court.
On 19 July 1982, the employer addressed the request for termination of the
contract to the Cantonal Court in Apeldoorn. The request included the
following passage: [...]
"When a Netherlands girl marries and has a baby, she stops working. Our
foreign women workers, on the other hand, take the child to neighbours or
family and at the slightest setback disappear on sick leave under the terms
of the Sickness Act. They repeat that endlessly. Since we all must do our
utmost to avoid going under, we cannot afford such goings-on."
After hearing the request on 10 August and 15 September 1982, the Cantonal
Court agreed, by a decision of 29 September 1982, to terminate the
employment contract with effect from 1 December 1982. Article 1639w (former
numbering) of the Civil Code excludes the possibility of an appeal against a
decision of the Cantonal Court.
2.3 On 21 October 1982, Mrs. Yilmaz requested the Prosecutor at the Supreme
Court to seek annulment of the decision of the Cantonal Court in the
interest of the law. By a letter of 26 October, she was informed that the
Prosecutor saw no justification for proceeding in that way. Convinced that
the employer's observations of 19 July 1982 constituted offences under the
Netherlands Penal Code, Mrs. Yilmaz, on 21 October 1982, requested the
Prosecutor at the District Court at Zutphen to prosecute her employer. On 16
February 1983, the Prosecutor replied that he did not consider the
initiation of penal proceedings to be opportune. The petitioner further
applied to the Minister of Justice, asking him to order the Prosecutor at
Zutphen to initiate such proceedings. The Minister, however, replied on 9
June 1983 that he saw no reason to intervene, since recourse had not yet
been had to the complaint procedure pursuant to article 12 of the Code of
Penal Procedure, which provided for the possibility of submitting a request
to the Court of Appeal to order prosecution of a criminal offence. In
conformity with the Minister's advice, Mrs. Yilmaz, on 13 July 1983,
requested the Court of Appeal at Arnhem, under article 12 of the Code of
Penal Procedure, to order the prosecution of her employer. On 30 November
1983, the Court of Appeal rejected the petition, stating, inter alia , that
it could not be determined that the defendant, by raising the issue of
differences in absenteeism owing to childbirth and illness between foreign
and Netherlands women workers, intended to discriminate by race, or that his
actions resulted in race discrimination. While dismissing the employer's
remarks in the letter of 19 July 1982 as "unfortunate and objectionable",
the Court considered "that the institution of criminal proceedings [was] not
in the public interest or in the interest of the petitioner". The Court's
decision taken pursuant to article 12 of the Code of Penal Procedure cannot
be appealed before the Supreme Court.
2.4 Petitioner's counsel concludes that the Netherlands violated article 5
(e) (i) of the Convention, because the alleged victim was not guaranteed the
right to gainful work and protection against unemployment, which is said to
be reflected in the fact that both the Director of the Labour Exchange and
the Cantonal Court endorsed the termination of her employment contract on
the basis of reasons which must be considered as racially discriminatory.
Secondly, he claims that the Netherlands violated article 6 of the
Convention since it failed to provide adequate protection as well as legal
remedies because Mrs. Yilmaz was unable to have the discriminatory
termination of her contract reviewed by a higher court. Thirdly, it is
alleged that the Netherlands violated article 4 of the Convention because it
did not order the Prosecutor to proceed against the employer on the basis of
either article 429 quarter or article 137c to article 137e of the
Netherlands Penal Code, provisions incorporated in that Code in the light of
the undertaking, under article 4 of the Convention, to take action to
eliminate manifestations of racial discrimination. Finally, it is argued
that article 6 of the Convention was violated because the State party denied
the petitioner due process by virtue of article 12 of the Code of Penal
Procedure, when she unsuccessfully petitioned for penal prosecution of the
discrimination of which she claims to have been the victim.
3. At its thirty-first session in March 1985, the Committee on the
Elimination of Racial Discrimination decided to transmit the communication,
under rule 92, paragraphs 1 and 3, of its rules of procedure, to the State
party, requesting information and observations relevant to the question of
the admissibility of the communication.
4.1 By submissions dated 17 June and 19 November 1985, the State party
objects to the admissibility of the communication. It affirms that the
Committee is entitled, under its rules of procedure, to examine whether a
prima facie consideration of the facts and the relevant legislation reveals
that the communication is incompatible with the Convention. For the reasons
set out below, it considers the communication to be incompatible ratione
materiae with the Convention and therefore inadmissible.
4.2 The State party denies that either the Director of the Labour Exchange
or the Cantonal Court in Apeldoorn violated any of the rights guaranteed by
article 5 (e) (i) of the Convention and argues that it met its obligation
under that provision to guarantee equality before the law in the enjoyment
of the right to employment by providing non-discriminatory remedies. With
respect to the content of the letter of Mrs. Yilmaz's employer dated 19 July
1982, the State party points out that the decision of the Cantonal Court
does not, in any way, justify the conclusion that the court accepted the
reasons put forth by the employer. In reaching its decision to dissolve the
contract between the petitioner and her employer, the Court merely
considered the case in the light of the relevant rules of civil law and
civil procedure; it refrained from referring to the petitioner's national or
ethnic origin.
4.3 With respect to the petitioner's argument that the State party should
have provided for a more adequate mechanism of judicial review and appeal
against Cantonal Court judgements related to the termination of employment
contracts, the State party points out that the relevant domestic procedures,
which were followed in the present case, provide adequate protection and
legal remedies within the meaning of article 6 of the Convention. Article 6
does not include an obligation for States parties to institute appeal or
other review mechanisms against judgements of the competent judicial
authority.
4.4 With respect to the allegation that the State party violated articles 4
and 6 of the Convention by failing to order the Prosecutor to prosecute the
employer, the State party argues that the obligation arising from article 4
of the Convention was met by incorporating in the Penal Code articles 137c
to e and articles 429 ter and quarter and penalizing any of the actions
referred to in these provisions. Article 4 cannot be read as obligating
States parties to institute criminal proceedings under all circumstances
with respect to actions which appear to be covered by the terms of the
article. Concerning the alleged violation of article 6, it is indicated that
there is a remedy against a decision not to prosecute: the procedure
pursuant to article 12 of the Code of Criminal Procedure. The State party
recalls that the petitioner indeed availed herself of this remedy, although
the Court of Appeal did not find in her favour. It further observes that the
assessment made by the Court of Appeal before deciding to dismiss her
petition was a thorough one. Thus, the discretion of the court was not
confined to determining whether the Prosecutor's decision not to institute
criminal proceedings against the employer was a justifiable one; it was also
able to weigh the fact that it is the Minister of Justice 's policy to
ensure that criminal proceedings are brought in as many cases as possible
where racial discrimination appears to be at issue.
5.1 Commenting on the State party's submission, petitioner's counsel, in a
submission dated 5 February 1986, denies that the communication should be
declared inadmissible as incompatible ratione materiae with the provisions
of the Convention and maintains that his allegations are well founded.
5.2 In substantiation of his initial claim, it is argued, in particular,
that the Netherlands did not meet its obligations under the Convention by
merely incorporating into its Penal Code provisions such as articles 137c to
e and 429 ter and quarter . He affirms that, by ratifying the Convention,
the State party curtailed its freedom of action. In his opinion, this means
that a State cannot simply invoke the expediency principle which, under
domestic law, leaves it free to prosecute or not; rather, it requires the
Netherlands actively to prosecute offenders against sections 137c and e and
429 ter and quarter unless there are grave objections to doing so.
5.3 Furthermore, petitioner's counsel maintains that in the decision of the
Court of Appeal of 30 November 1983, the causal relationship between the
alleged victim's dismissal and the different rate of absenteeism among
foreign and Netherlands women workers, as alleged by the employer, is clear.
On the basis of the Convention, it is argued, the Court should have
dissociated itself from the discriminatory reasons for termination of the
employment contract put forth by the employer.
6. On 19 March 1987, the Committee, noting that the State party's
observations concerning the admissibility of the communication essentially
concerned the interpretation of the meaning and scope of the provisions of
the Convention and having further ascertained that the communication met the
admissibility criteria set out in article 14 of the Convention, declared the
communication admissible. It further requested the State party to inform the
Committee as early as possible, should it not intend to make a further
submission on the merits, so as to allow it to deal expeditiously with the
matter.
7. In a further submission dated 7 July 1987, the State party maintains that
no violation of the Convention can be deemed to have taken place in the case
of Mrs. Yilmaz. It argues that the alleged victim's claim that, in cases
involving alleged racial discrimination, the weighing by the judge of the
parties' submissions has to meet especially severe criteria, rests on
personal convictions rather than legal requirements. The requirement in
civil law disputes are simply that the judge has to pronounce himself on the
parties' submissions inasmuch as they are relevant to the dispute. The State
party further refutes the allegation that the terms of the Convention
require the establishment of appeal procedures. In this respect, it
emphasizes that criminal law, by its nature, is mainly concerned with the
protection of the public interest. Article 12 of the Code of Criminal
Procedure gives individuals who have a legitimate interest in prosecution of
an offence the right to lodge a complaint with the Court of Appeal against
the failure of the authorities to prosecute. This procedure guarantees the
proper administration of criminal law, but it does not offer the victims an
enforceable right to see alleged offenders prosecuted. This, however, cannot
be said to constitute a violation of the Convention.
8.1 Commenting on the State party's submission, petitioner's counsel, in a
submission dated 14 September 1987, reiterates that the State party violated
article 5 (e) (i) in that the cantonal judge failed to protect the
petitioner against unemployment, although the request for her dismissal was,
allegedly, based on racially discriminatory grounds. He asserts that, even
if the correspondence between the Director of the Labour Exchange and the
employer did not refer to the national or ethnic origin of the alleged
victim, her own family name and that of her husband must have made it clear
to all the authorities involved that she was of Turkish origin.
8.2 With respect to the State party's argument that its legislation provides
for adequate protection - procedural and substantive - in cases of alleged
racial discrimination, it is claimed that domestic law cannot serve as a
guideline in this matter. The expediency principle, i.e. the freedom to
prosecute, as laid down in Netherlands law, has to be applied in the light
of the provisions of the Convention with regard to legal protection in cases
of alleged racial discrimination.
9.1 The Committee on the Elimination of Racial Discrimination has considered
the present communication in the light of all the information made available
to it by the parties, as required under article 14, paragraph 7 (a), of the
Convention and rule 95 of its rules of procedure, and bases its opinion on
the following considerations.
9.2 The main issues before the Committee are (a) whether the State party
failed to meet its obligation, under article 5 (e) (i), to guarantee
equality before the law in respect of the right to work and protection
against unemployment, and (b) whether articles 4 and 6 impose on States
parties an obligation to initiate criminal proceedings in cases of alleged
racial discrimination and to provide for an appeal mechanism in cases of
such discrimination.
9.3 With respect to the alleged violation of article 5 (e) (i), the
Committee notes that the final decision as to the dismissal of the
petitioner was the decision of the Sub-District Court of 29 September 1982,
which was based on article 1639w (2) of the Netherlands Civil Code. The
Committee notes that this decision does not address the alleged
discrimination in the employer's letter of 19 July 1982, which requested the
termination of the petitioner's employment contract. After careful
examination, the Committee considers that the petitioner's dismissal was the
result of a failure to take into account all the circumstances of the case.
Consequently, her right to work under article 5 (e) (i) was not protected.
9.4 Concerning the alleged violation of articles 4 and 6, the Committee has
noted the petitioner's claim that these provisions require the State party
actively to prosecute cases of alleged racial discrimination and to provide
victims of such discrimination with the opportunity of judicial review of a
judgement in their case. The Committee observes that the freedom to
prosecute criminal offences - commonly known as the expediency principle -
is governed by considerations of public policy and notes that the Convention
cannot be interpreted as challenging the raison d'être of that principle.
Notwithstanding, it should be applied in each case of alleged racial
discrimination, in the light of the guarantees laid down in the Convention.
In the case of Mrs. Yilmaz-Dogan, the Committee concludes that the
prosecutor acted in accordance with these criteria. Furthermore, the State
party has shown that the application of the expediency principle is subject
to, and has indeed in the present case been subjected to, judicial review,
since a decision not to prosecute may be, and was reviewed in this case, by
the Court of Appeal, pursuant to article 12 of the Netherlands Code of
Criminal Procedure. In the Committee's opinion, this mechanism of judicial
review is compatible with article 4 of the Convention; contrary to the
petitioner's affirmation, it does not render meaningless the protection
afforded by sections 137c to e and 429 ter and quarter of the Netherlands
Penal Code. Concerning the petitioner's inability to have the Sub-District
Court's decision pronouncing the termination of her employment contract
reviewed by a higher tribunal, the Committee observes that the terms of
article 6 do not impose upon States parties the duty to institute a
mechanism of sequential remedies, up to and including the Supreme Court
level, in cases of alleged racial discrimination.
10. The Committee on the Elimination of Racial Discrimination, acting under
article 14, paragraph 7, of the Convention, is of the opinion that the
information as submitted by the parties sustains the claim that the
petitioner was not afforded protection in respect of her right to work. The
Committee suggests that the State party take this into account and
recommends that it ascertain whether Mrs. Yilmaz-Dogan is now gainfully
employed and, if not, that it use its good offices to secure alternative
employment for her and/or to provide her with such other relief as may be
considered equitable.
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