On behalf
of: A. YilmazDogan (petitioner)
State party
concerned : The Netherlands
Date of
communication: 28 May 1984 (date of initial letter)
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. YilmazDogan 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. YilmazDogan 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.
2.1The 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 parttime duty of her own accord. Meanwhile, in August
1981, she married Mr. Yilmaz.
2.2By 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 goingson."
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.
2.3On 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.
2.4Petitioner'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 thirtyfirst
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.
4.1By 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.
4.2The 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 nondiscriminatory 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.
4.3With 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.
4.4With 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.
5.1Commenting
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.
5.2In 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.
5.3Furthermore,
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.
8.1Commenting
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.
8.2With 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.
9.1The 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.
9.2The 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.
9.3With 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 SubDistrict 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.
9.4Concerning
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. YilmazDogan, 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 SubDistrict 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. YilmazDogan 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.