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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 16 March 1993,
Having decided, under rule 94, paragraph 7, of its rules of procedure to
deal jointly with the question of admissibility and the merits of the
communication,
Having ascertained that the communication meets the criteria for being
declared admissible,
Having concluded its consideration of communication No. 4/1991, submitted to
the Committee by L.K. 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 L.K. 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,
Adopts the following:
Opinion
1. The author of the communication (dated 6 December 1991) is L.K., a
Moroccan citizen currently residing in Utrecht, the Netherlands. He claims
to be a victim of violations by the Netherlands of articles 2, paragraph 1
(d); 4 litera (c), 5 litera (d) (i) and litera (e) (iii); and 6 of the
International Convention on the Elimination of All Forms of Racial
Discrimination. The author is represented by counsel.
The Facts as Found by the Committee:
2.1 On 9 August 1989, the author, who is partially disabled, visited a house
for which a lease had been offered to him and his family, in the Nicholas
Ruychaverstraat, a street with municipal subsidized housing in Utrecht. He
was accompanied by a friend, A.B. When they arrived, some 20 people had
gathered outside the house. During the visit, the author heard several of
them both say and shout: "No more foreigners". Others intimated to him that
if he were to accept the house, they would set fire to it and damage his
car. The author and A.B. then returned to the Municipal Housing Office and
asked the official responsible for the file to accompany them to the street.
There, several local inhabitants told the official that they could not
accept the author as their neighbour, owing to a presumed rule that no more
than 5 per cent of the street's inhabitants should be foreigners. Told that
no such rule existed, street residents drafted a petition, which noted that
the author could not be accepted and recommended that another house be
allocated to his family.
2.2 On the same day, the author filed a complaint with the municipal police
of Utrecht, on the ground that he had been the victim of racial
discrimination under article 137 (literae (c) and (d)) of the Criminal Code
(Wetboek van Strafrecht). The complaint was directed against all those who
had signed the petition and those who had gathered outside the house. He
submits that initially, the police officer refused to register the
complaint, and that it took mediation by a local anti-discrimination group
before the police agreed to prepare a report.
2.3 The State party's version of the facts coincides to a large extent with
that given by the author, with some differences. According to the State
party, the author visited the house allocated to him by the Municipality of
Utrecht twice, once on 8 August 1989, together with an official of the
Utrecht Municipal Housing Department, and again on 9 August 1989 with a
friend. During the first visit, the official started a conversation with a
local resident, a woman, who objected to the author as a future tenant and
neighbour. During the conversation, several other residents approached and
made remarks such as "We've got enough foreigners in this street" and "They
wave knives about and you don't even feel safe in your own street". While
the author was no longer present when these remarks were made, the Housing
Department official was told that the house would be set on fire as soon as
the prior tenant's lease had expired. As to the second visit, it is
submitted that when the author arrived at the house with a friend, A.B., a
group of local residents had already gathered to protest against the
potential arrival of another foreigner. When the author remained reluctant
to reject the Housing Department's offer the residents collected signatures
on a petition. Signed by a total of 28 local residents, it bore the
inscription "Not accepted because of poverty? Another house for the family
please?", and was forwarded to the Housing Department official.
2.4 In response to the complaint of 9 August 1989, the police prepared a
report on the incident (Proces-Verbal No. 4239/89) on 25 September 1989;
according to the State party, 17 out of the 28 residents who had signed the
petition had been questioned by the police, and 11 could not be contacted
before the police report was finalized.
2.5 In the meantime, the author's lawyer had apprised the prosecutor at the
District Court of Utrecht of the matter and requested access to all the
documents in the file. On 2 October 1989, the prosecutor forwarded these
documents, but on 23 November 1989 he informed the author that the matter
had not been registered as a criminal case with his office, because it was
not certain that a criminal offence had taken place. On 4 January 1990,
therefore, counsel requested the Court of Appeal of Amsterdam (Gerechtshof)
to order the prosecution of the "group of residents of the Nicholas
Ruychaverstraat in Utrecht" for racial discrimination, pursuant to article
12 of the Code of Criminal Procedure.
2.6 Counsel submits that, after several months, he was informed that the
Registry of the Court of Appeal had indeed received the case file on 15
January 1990. On an unspecified date but shortly thereafter, the
Prosecutor-General at the Court of Appeal had requested further information
from the District Court Prosecutor, which was supplied rapidly. However, it
was not until 10 April 1991 that counsel was able to consult the
supplementary information, although he had sought to obtain it on several
occasions between 15 February 1990 and 15 February 1991. It was only after
he threatened to apply for an immediate judgement in tort proceedings
against the prosecutor at the Court of Appeal that the case was put on the
Court agenda for 10 April 1991. On 5 March 1991, the Prosecutor-General at
the Court of Appeal asked the Court to declare the complaint unfounded or to
refuse to hear it on public interest grounds.
2.7 Before the Court of Appeal, it transpired that only two of the street's
inhabitants had actually been summoned to appear; they did not appear
personally but were represented. By judgement of 10 June 1991, the Court of
Appeal dismissed the author's request. It held inter alia that the petition
was not a document of deliberately insulting nature, nor a document that was
inciting to racial discrimination within the meaning of article 137, literae
(c) and (e), of the Criminal Code. In this context, the Court of Appeal held
that the heading to the petition - which, taking into account statements
made during the hearing and to the police, should be interpreted as meaning
"Not accepted because of a fight? Another house for the family please?" -
could not be considered to be insulting or as an incitement to racial
discrimination, however regrettable and undesirable it might have been.
2.8 Under article 12 of the Code of Criminal Procedure, counsel requested
the Prosecutor-General at the Supreme Court to seek the annulment of the
decision of the Court of Appeal, in the interest of law. On 9 July 1991, the
request was rejected. As a last resort, counsel wrote to the Minister of
Justice, asking him to order the prosecutor to initiate proceedings in the
case. The Minister replied that he could not grant the request, as the Court
of Appeal had fully reviewed the case and there was no scope for further
proceedings under article 12 of the Code of Criminal Procedure. However, the
Minister asked the Chief Public Prosecutor in Utrecht to raise the problems
encountered by the author in tripartite consultations between the Chief
Public Prosecutor, the Mayor and the Chief of the Municipal Police of
Utrecht. At such tripartite consultations on 21 January 1992, it was agreed
that anti-discrimination policy would receive priority attention.
The Complaint:
3.1 The author submits that the remarks and statements of the residents of
the street constitute acts of racial discrimination within the meaning of
article 1, paragraph 1, of the Convention, as well as of article 137,
literae (c), (d), and (e), of the Dutch Criminal Code; the latter provisions
prohibit public insults of a group of people solely on the basis of their
race, public incitement of hatred against people on account of their race,
and the publication of documents containing racial insults of a group of
people.
3.2 The author contends that the judicial authorities and the public
prosecutor did not properly examine all the relevant facts of the case or at
least did not formulate a motivated decision in respect of his complaint. In
particular, he submits that the police investigation was neither thorough
nor complete. Thus, A.B. was not questioned; and street residents were only
questioned in connection with the petition, not with the events outside the
house visited by the author on 8/9 August 1989. Secondly, the author
contends that the decision of the prosecutor not to institute criminal
proceedings remained unmotivated. Thirdly, the prosecutor is said to have
made misleading statements in an interview to a local newspaper in December
1989, in respect of the purported intentions of the street residents
vis-à-vis the author. Fourthly, the Prosecutor-General at the Court of
Appeal is said to have unjustifiably prolonged the proceedings by remaining
inactive for over one year. Finally, the Court of Appeal itself is said to
have relied on incomplete evidence.
3.3 Author's counsel asserts that the above reveals violations of articles
2, paragraph 1 (d), juncto 4 and 6; he observes that articles 4 and 6 must
be read together with the first sentence and paragraph 1 litera (d) of
article 2, which leads to the conclusion that the obligations of States
parties to the Convention are not met if racial discrimination is merely
criminalized. Counsel submits that although the freedom to prosecute or not
to prosecute, known as the expediency principle, is not set aside by the
Convention, the State party, by ratifying the Convention, accepted to treat
instances of racial discrimination with particular attention, inter alia, by
ensuring the speedy disposal of such cases by domestic judicial instances.
The State Party's Information and Observations and Counsel's Comments:
4.1 The State party does not formulate objections to the admissibility of
the communication and concedes that the author has exhausted available
domestic remedies. It also acknowledges that article 137, literae (c), (d),
and (e), of the Criminal Code are in principle applicable to the behaviour
of the street's residents.
4.2 In respect of the contention that the police investigations of the case
were incomplete, the State party argues that it is incorrect to claim that
the residents of the street were questioned only about the petition. A
number of residents made statements about the remark that a fire would be
set if the author moved into the house. The State party also contends that
although lapse of time makes it impossible to establish why A.B. was not
called to give evidence before the Court of Appeal, it is "doubtful ...
whether a statement from him would have shed a different light on the case.
After all, no one disputes that the remarks objected to were made".
4.3 The State party similarly rejects the contention that the prosecutor did
not sufficiently motivate the decision not to prosecute and that the
interview given by the press officer of the prosecutor's office to an
Utrecht newspaper on 6 December 1989 was incomplete and erroneous. Firstly,
it observes that the decision not to prosecute was explained at length in
the letter dated 25 June 1990 from the public prosecutor in Utrecht to the
Prosecutor-General at the Amsterdam Court of Appeal, in the context of the
author's complaint filed under article 12 of the Code of Criminal Procedure.
Secondly, the interview of 6 December 1989 did not purport to reflect the
opinion of the Public Prosecutor's Office but that of the residents of the
street.
4.4 In respect of the contention that the proceedings before the Court of
Appeal were unduly delayed, the State party considers that although the
completion of the report by the Prosecutor-General took longer than
anticipated and might be desirable, a delay of 15 months between lodging of
the complaint and its hearing by the Court of Appeal did not reduce the
effectiveness of the remedy; accordingly, the delay cannot be considered to
constitute a violation of the Convention.
4.5 The State party observes that the Dutch legislation meets the
requirements of article 2, paragraph 1 (d), of the Convention, by making
racial discrimination a criminal offence under articles 137, litera (c) et
seq. of the Criminal Code. For any criminal offence to be prosecuted,
however, there must be sufficient evidence to warrant prosecution. In the
Government's opinion, there can be no question of a violation of articles 4
and 6 of the Convention because, as set out in the public prosecutor's
letter of 25 June 1990, it had not been sufficiently established that any
criminal offence had been committed on 8 and 9 August 1989, or who had been
involved.
4.6 In the State party's opinion, the fact that racial discrimination has
been criminalized under the Criminal Code is sufficient to establish
compliance with the obligation in article 4 of the Convention, since this
provision cannot be read to mean that proceedings are instituted in respect
of every type of conduct to which the provision may apply. In this context,
the State party notes that decisions to prosecute are taken in accordance
with the expediency principle, and refers to the Committee's opinion on
communication 1/1984 addressing the meaning of this very principle. [FNa]
The author was able to avail himself of an effective remedy, in accordance
with article 6 of the Convention, because he could and did file a complaint
pursuant to article 12 of the Code of Criminal Procedure, against the
prosecutor's refusal to prosecute. The State party emphasizes that the
review of the case by the Court of Appeal was comprehensive and not limited
in scope.
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[FNa] Yilmaz-Dogan v. The Netherlands, Opinion of 10 August 1988, paragraph
9.4.
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4.7 Finally, the State party denies that it violated article 5 (d) (i) and
(e) (iii) of the Convention vis-à-vis the author; the author's right to
freely choose his place of residence was never impaired, either before or
after the events of August 1989. In this context, the State party refers to
the Committee's Opinion on communication No. 2/1989, where it was held that
the rights enshrined in article 5 (e) of the Convention are subject to
progressive implementation, and that it was "not within the Committee's
mandate to see to it that these rights are established" but rather to
monitor the implementation of these rights, once they have been granted on
equal terms. [FNb] The State party points out that "appropriate rules have
been drawn up to ensure an equitable distribution of housing ...", and that
these rules were applied to the author's case.
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[FNb] D.T. Diop v. France, Opinion of 18 March 1991, paragraph 6.4.
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5.1 In his comments, counsel challenges several of the State party's
observations. Thus, he denies that the police inquiry was methodical and
asserts that A.B. could and indeed would have pointed out those who made
threatening and discriminatory remarks on 9 August 1989, had he been called
to give evidence. Counsel further submits that he was not able to consult
the public prosecutor's decision of 25 June 1990 not to institute criminal
proceedings until 10 April 1991, the date of the hearing before the Court of
Appeal.
5.2 Counsel takes issue with the State party's version of the prosecutor's
interview of 6 December 1989 and asserts that if the press officer related
the version of the street residents without any comment whatsoever, she
thereby suggested that their account corresponded to what had in fact
occurred. Finally, counsel reaffirms that the judicial authorities made no
effort to handle the case expeditiously. He notes that criminal proceedings
in The Netherlands should duly take into account the principles enshrined in
article 6 of the European Convention on the Protection of Human Rights, of
which the obligation to avoid undue delays in proceedings is one.
Issues and Proceedings Before the Committee:
6.1 Before considering any claims contained in a communication, the
Committee on the Elimination of Racial Discrimination must, in accordance
with rule 91 of its rules of procedure, decide whether or not it is
admissible under the Convention. Under rule 94, paragraph 7, the Committee
may, in appropriate cases and with the consent of the parties concerned,
join consideration of the admissibility and of the merits of a
communication. The Committee notes that the State party does not raise
objections to the admissibility of the communication, and that it has
formulated detailed observations in respect of the substance of the matter
under consideration. In the circumstances, the Committee decides to join
consideration of admissibility and consideration of the merits of the
communication.
6.2 The Committee has ascertained, as it is required to do under rule 91,
that the communication meets the admissibility criteria set out therein. It
is, therefore, declared admissible.
6.3 The Committee finds on the basis of the information before it that the
remarks and threats made on 8 and 9 August 1989 to L.K. constituted
incitement to racial discrimination and to acts of violence against persons
of another colour or ethnic origin, contrary to article 4 (a) of the
International Convention on the Elimination of All Forms of Racial
Discrimination, and that the investigation into these incidents by the
police and prosecution authorities was incomplete.
6.4 The Committee cannot accept any claim that the enactment of law making
racial discrimination a criminal act in itself represents full compliance
with the obligations of States parties under the Convention.
6.5 The Committee reaffirms its view as stated in its Opinion on
Communication No. 1/1984 of 10 August 1987 (Yilmaz-Dogan v. The Netherlands)
that "the freedom to prosecute criminal offenses - 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".
6.6 When threats of racial violence are made, and especially when they are
made in public and by a group, it is incumbent upon the State to investigate
with due diligence and expedition. In the instant case, the State party
failed to do this.
6.7 The Committee finds that in view of the inadequate response to the
incidents, the police and judicial proceedings in this case did not afford
the applicant effective protection and remedies within the meaning of
article 6 of the Convention.
6.8 The Committee recommends that the State party review its policy and
procedures concerning the decision to prosecute in cases of alleged racial
discrimination, in the light of its obligations under article 4 of the
Convention.
6.9 The Committee further recommends that the State party provide the
applicant with relief commensurate with the moral damage he has suffered.
7. Pursuant to rule 95, paragraph 5, of its rules of procedure, the
Committee invites the State party, in its next periodic report under article
9, paragraph 1, of the Convention, to inform the Committee about any action
it has taken with respect to the recommendations set out in paragraphs 6.8
and 6.9 above.
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