L.K. v. Netherlands
From DADEL
Case Summary
L.K. v. Netherlands
Committee on the Elimination of Racial Discrimination
Communication No 4/1991 : Netherlands. 16/03/93
CERD/C/42/D/4/1991
The author of the communication is L.K., a Moroccan citizen residing in Utrecht, the Netherlands. He claims to be a victim of violations by the Netherlands of Articles 2, paragraph 1 (d); 4 (c), 5 (d) (i) and (e) (iii); and 6 of the International Convention on the Elimination of All Forms of Racial Discrimination ("Convention”).
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Facts
On 8 and 9 August 1989, the author, accompanied by a friend, visited a house for which a lease had been offered to him and his family by the municipality. On their arrival they noticed that some 20 people had gathered outside the house and shouted: "No more foreigners." He was told by some of them that if he were to accept the house, they would set fire to it and damage his car. The residents of the street also drafted a petition according to which the author could not be accepted in their locality.
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 ((c) and (d)) of the Netherlands Criminal Code. The complaint was directed against all those who had signed the petition and those who had gathered outside the house. The police prepared a report on the incident. The prosecutor at the District Court of Utrecht 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. 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. 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 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.
According to the Counsel, although 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. This was not done in the present case.
Admissibility
The communication was found to be admissible
Merits
The Committee found 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 color or ethnic origin, contrary to Article 4 (a) of the Convention, and that the investigation into these incidents by the police and prosecution authorities was incomplete. The Committee refused to accept that mere enactment of law making racial discrimination a criminal act in itself represents full compliance with the obligations of States parties under the Convention. When threats of racial violence are made, and especially when they are made in public and by a group, it is the responsibility of the State to investigate the cases with due diligence. In the instant case, the State party failed to do this.
Decision
The Committee recommended 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. The Committee further recommended that the State party compensate the author for the moral damage he has suffered