Communication No. 1/1984

UN Committee on the Elimination of All Forms of Racial Discrimination

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.” The petitioner argued, amongst others, that the Netherlands  violated Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination because it did not order the Prosecutor to proceed against the employer. The Committee found that there was no violation of Article 4. It observed the freedom to prosecute criminal offences is governed by considerations of public policy and notes that the Convention cannot be interpreted as challenging the raison d’être of that principle. In the case of Mrs. Yilmaz-Dogan, the Committee concluded that the prosecutor acted in accordance with these criteria.

Link:http://www.worldcourts.com/cerd/eng/decisions/1988.08.10_Yilmaz-Dogan_v_Netherlands.htm

Theme(s): Ethnic Hatred

Date: 10 August 1998

Description of applicant(s): Citizen

Brief description of fats:

The petitioner stated that she had been employed, since 1979, by a firm operating in the textile sector. In 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. Meanwhile, in August 1981, she married Mr. Yilmaz.

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.”

She argued, amongst others, 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.

(Alleged) target(s) of speech: Immigrants

The Committee’s assessment of the impugned speech:

The Committee found that there was no violation of Article 4. It observed the freedom to prosecute criminal offences is governed by considerations of public policy and notes that the Convention cannot be interpreted as challenging the raison d’être of that principle. In the case of Mrs. Yilmaz-Dogan, the Committee concluded that the prosecutor acted in accordance with these criteria.

Important paragraph(s) from the decision:

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.

 ICERD Article: 4

 Decision: No violation