CERD, Selected Decisions - Volume 1

8/12/2019 CERD, Selected Decisions - Volume 1

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INTERNATIONAL CONVENTION ON THE ELIMINATION

OF ALL FORMS OF RACIAL DISCRIMINATION

SELECTED DECISIONS

OF THE COMMITTEE ON THE ELIMINATION

OF RACIAL DISCRIMINATION

Volume

I

Thirty-sixth to seventy-fth sessions (August 1988 August 2011)


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INTERNATIONAL CONVENTION ONTHE ELIMINATION OF ALL FORMS

OF RACIAL DISCRIMINATION

SELECTED DECISIONSOF THE COMMITTEE

ON THE ELIMINATIONOF RACIAL DISCRIMINATION

Volume I

Thirty-sixth to seventy-fifth sessions(August 1988August 2011)

UNITED NATIONSNew York and Geneva, 2012


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NOTE

The designations employed and the presentation of the material in this publication do not imply theexpression of any opinion whatsoever on the part of the Secretariat of the United Nations concerningthe legal status of any country, territory, city or area, or of its authorities, or concerning the delimitationof its frontiers or boundaries.

** *

Symbols of United Nations documents are composed of capital letters combined with figures. Mentionof such a symbol indicates a reference to a United Nations document.

HR/CERD/PUB/1

UNITED NATIONS PUBLICATIONSales NE.12.XIV.2

ISBN-13: 978-92-1-154195-3

e-ISBN-13: 978-92-1-055245-5

2012 United NationsAll worldwide rights reserved


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iii

ContentsPage

Introduction. 1

FINAL DECISIONS

I. Opinions under article 14 of the Convention(Committees session indicated in brackets)

No. 1/1984 [36] Yilmaz-Doganv. Netherlands............................................................. 3No. 2/1989 [39] Demba Talibe Diopv. France............................................................. 7No. 3/1991 [44] Michel L.N. Narrainenv. Norway........................................................ 12No. 4/1991 [42] L.K.v. Netherlands............................................................................. 18No. 6/1995 [55] Z.U.B.S.v.Australia........................................................................... 22No. 8/1996 [54] B.M.S.v.Australia.............................................................................. 34No. 10/1997 [54] Ziad Ben Ahmed Habassiv. Denmark............................................... 43No. 11/1998 [59] Miroslav Lackov. Slovakia................................................................. 49No. 13/1998 [57] Anna Koptovav. Slovakia................................................................... 55No. 16/1999 [56] Kashif Ahmadv. Denmark.................................................................. 65No. 17/1999 [57] B.J.v. Denmark.................................................................................. 70No. 26/2002 [62] Stephen Haganv.Australia............................................................... 75No. 27/2002 [63] Kamal Quereshiv. Denmark.............................................................. 82No. 29/2003 [68] Dragan Durmicv. Serbia and Montenegro......................................... 88No. 30/2003 [67] The Jewish community of Oslo et al.v. Norway................................. 97No. 31/2003 [66] L.R. et al.v. Slovakia.......................................................................... 108No. 32/2003 [66] Emir Seficv. Denmark........................................................................ 118No. 34/2004 [68] Mohammed Hassan Gellev. Denmark............................................... 124No. 38/2006 [72] Zentralrat Deutscher Sinti und Roma et al.v. Germany..................... 130No. 39/2006 [72] D.F.v.Australia ................................................................................. 136

No. 40/2007 [71] Murat Erv. Denmark........................................................................... 140No. 41/2008 [75] Ahmed Farah Jamav. Denmark......................................................... 146

II. Decisions declaring communications inadmissible

No. 5/1994 [46] C.P.v. Denmark................................................................................. 153No. 7/1995 [51] Paul Barbarov.Australia.................................................................... 159No. 9/1997 [53] D.S.v. Sweden.................................................................................. 166No. 18/2000 [58] F.A.v. Norway .................................................................................. 171No. 19/2000 [59] Sarwar Seliman Mostafav. Denmark................................................ 174No. 21/2001 [59] D.S.v. Sweden.................................................................................. 179No. 22/2002 [62] POEM and FASMv. Denmark............................................................ 180No. 25/2002 [62] Ahmad Najaati Sadicv. Denmark....................................................... 188No. 28/2003 [63] The Documentation and Advisory Centre on Racial Discrimination

v. Denmark....................................................................

194No. 36/2006 [71] P.S.N.v. Denmark.............................................................................. 199

INDEXES

Index by article of the Convention........ 207Subject index.... 209Author and victim index........................ 212


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Introduction

Promoting and encouraging universal respectfor and observance of human rights andfundamental freedoms for all, withoutdistinction, exclusion, restriction or preferencebased on race, colour, descent, or national orethnic origin is one of the main purposes of theUnited Nations. The adoption of theInternational Convention on the Elimination ofAll Forms of Racial Discrimination was animportant step in the codification process tocombat such discrimination. It constitutes thenormative basis upon which internationalefforts to eliminate it should be built.

As at 20 January 2012, there were 175 Stateparties to the Convention, which was adoptedby the General Assembly in resolution

2106 (XX) of 21 December 1965 and openedfor signature and ratification in New York on7 March 1966. The Convention entered intoforce on 4 January 1969 in accordance withthe provisions of its article 19.

In accordance with its article 8, the Committeeon the Elimination of Racial Discrimination wasestablished to ensure that the Convention isobserved and implemented. The Committee iscomposed of 18 independent experts of highmoral standing and acknowledged impartiality.Members are elected for a term of four yearsand serve in their personal capacity. They maybe re-elected if nominated.

The Committee convenes twice a year forthree-week sessions. It elects a Chair, threeVice-Chairs and a Rapporteur from among itsown members for a term of two years. Theseofficers are eligible for re-election. TheCommittees main activity is to monitor theimplementation of the Convention by its Stateparties through periodic reporting. In additionto the reporting procedure, there are two othermechanisms through which the Committeeperforms its monitoring functions: the

examination of inter-State communicationsand the examination of individualcommunications under article 14 of theConvention.

Under the individual communicationsprocedure, individuals can, under certaincircumstances, lodge complaints claiming thatany of the rights set forth in the Conventionhave been violated. No communication can bereceived by the Committee if it concerns aState party to the Convention that has notrecognized the competence of the Committee

to receive and consider communications fromindividuals or group of individuals, underarticle 14. Such communications areconsidered in closed meetings and alldocuments pertaining to the work of theCommittee under article 14 are confidentialuntil a final decision has been made.

By 20 January 2012, the following 54 Stateshad made the declaration under article 14:

Algeria, Andorra, Argentina, Australia, Austria,Azerbaijan, Belgium, Bolivia (PlurinationalState of), Brazil, Bulgaria, Chile, Costa Rica,Cyprus, Czech Republic, Denmark, Ecuador,Estonia, Finland, France, Georgia, Germany,Hungary, Iceland, Ireland, Italy, Kazakhstan,Liechtenstein, Luxembourg, Malta, Mexico,

Monaco, Montenegro, Morocco, Netherlands,Norway, Peru, Poland, Portugal, Republic ofKorea, Romania, Russian Federation, SanMarino, Senegal, Serbia, Slovakia, Slovenia,South Africa, Spain, Sweden, Switzerland, theformer Yugoslav Republic of Macedonia,Ukraine, Uruguay, and Venezuela (BolivarianRepublic of).

Upon receiving a communication, theCommittee transmits it to the State partyconcerned for observations relevant to thequestion of admissibility of the communication.

Conditions for admissibility are specified in theConvention and in the Committees rules ofprocedure (HRI/GEN/3/Rev.3), pursuant towhich the Committee ascertains:

That the communication is not anonymousand that it comes from an individual orgroup of individuals subject to thejurisdiction of a State party recognizing thecompetence of the Committee under article14;

That the individual claims to be a victim of aviolation by the State party concerned of

any of the rights set forth in the Convention.As a general rule, the communicationshould be submitted by the individualhimself or by his relatives or designatedrepresentatives;

That the communication is submitted to theCommittee within six months after theexhaustion of domestic remedies;

That the communication is compatible withthe provisions of the Convention;


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That the communication is not an abuse ofthe right to submit a communication inconformity with article 14;

That the individual has exhausted allavailable domestic remedies. However, thisshall not be the rule where the application

of the remedies is unreasonably prolonged.The Committee may request the State partyconcerned or the author of the communicationto submit additional written information orclarification relevant to the question ofadmissibility of the communication.

The Committees usual course of action is toconsider the admissibility and merits of thecase simultaneously.

However, the Committee may examine theadmissibility of the communication separatelyfrom its merits. If, in its decision on

admissibility, the Committee decides that acommunication is inadmissible, it will informthe State party concerned and the petitioner ofits decision, setting out the reasons fordeclaring the communication inadmissible. Aninadmissibility decision taken by theCommittee in conformity with article 14,paragraph 7 (a), of the Convention (exhaustionof domestic remedies) may be reviewed at alater date by the Committee upon writtenrequest by the petitioner. If the Committeedecides that a communication is admissible,the Committee will inform the State party and

the petitioner of the communication of itsdecision. The State party concerned shallsubmit written observations regarding themerits of the communication to the Committeewithin three months. The petitioner will later begiven the opportunity to comment on suchobservations.

In the course of its consideration, theCommittee, pursuant to rule 94 of its rules ofprocedure, may inform the State party of itsviews on the desirability, because of urgency,of taking interim measures to prevent possible

irreparable damage to the person or personswho claim to be victim(s) of the allegedviolation. Such expression of its views oninterim measures does not prejudge its finalopinion on the merits of the communicationor its eventual suggestions andrecommendations.

In the light of all the information madeavailable to it by the complainant and the Stateparty concerned, the Committee considers the

communication and formulates its opinion. Theopinion is forwarded to the petitioner and tothe State party, together with any suggestionand recommendations the Committee maywish to make. The State party concerned isinvited to inform the Committee within sixmonths of the action it takes in conformity

with the Committees suggestions andrecommendations.

The Committee includes the communicationsexamined and its suggestions andrecommendations in its annual report.

By the end of its 79th session, the Committeehad adopted 44 decisions. Since 1984 up tothe end of its 79thsession, the Committee hadregistered a total of 48 complaints. Of those, 1complaint was discontinued and 17 weredeclared inadmissible. The Committeeadopted opinions (decisions on the merits) on

27 complaints and found violations of theConvention in 11 of them. Three complaintswere pending for consideration and decision.

This first volume of selected decisions of theCommittee on the Elimination of RacialDiscrimination presents 32 of the mostsignificant decisions on admissibility only, aswell as on both admissibility and merits,addressing the issue of racial discrimination inrelation to civil and political rights and toeconomic, social and cultural rights.

Throughout its existence, the Committee

has established and developed its ownjurisprudence on the admissibility criteriaunder the Convention, including the notion ofexhaustion of domestic remedies, the six-month rule under article 14, paragraph 5, ofthe Convention, the issue of victim status andthe Committees competence ratione materiae.In its opinions, the Committee has addresseda variety of issues such as the use ofoffensive and discriminatory statements ordemonstrations in public or in the media,access to any place or service intended foruse by the general public, indirect

discrimination or access to education.The indexes by article of the Convention, bysubject, and by author and victim aim atfacilitating the readers access to the relevantjurisprudence.


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I. Opinions under article 14of the Convention

Communication No. 1/1984

Opinion

1. The communication (initial letter dated

28 May 1984, further letters dated 23 October1984, 5 February 1986 and 14 September1987) placed before the Committee on theElimination of Racial Discrimination byH.F. Doeleman, a Netherlands lawyerpractising in Amsterdam. He submits thecommunication on behalf of Mrs. A. Yilmaz-Dogan, a Turkish national residing in theNetherlands, who claims to be the victim of aviolation of articles 4 (a), 5 (e) (i) and 6 of theInternational Convention on the Elimination ofAll Forms of Racial Discrimination by theNetherlands.

2.1 The petitioner states that she had beenemployed, since 1979, by a firm operating inthe textile sector. On 3 April 1981, she wasinjured in a traffic accident and placed on sickleave. Allegedly as a result of the accident,she was unable to carry out her work for a longtime; it was not until 1982 that she resumedpart-time duty of her own accord. Meanwhile,in August 1981, she married Mr. Yilmaz.

2.2 By a letter dated 22 June 1982, heremployer requested permission from the

District Labour Exchange in Apeldoorn toterminate her contract. Mrs. Yilmaz waspregnant at that time. On 14 July 1982, the

Director of the Labour Exchange refused toterminate the contract on the basis ofarticle 1639h (4) of the Civil Code, whichstipulates that employment contracts may notbe terminated during the pregnancy of theemployee. He pointed, however, to thepossibility of submitting a request to thecompetent Cantonal Court. On 19 July 1982,the employer addressed the request fortermination of the contract to the CantonalCourt in Apeldoorn. The request included thefollowing passage: []

When a Netherlands girl marries and hasa baby, she stops working. Our foreignwomen workers, on the other hand, takethe child to neighbours or family and at theslightest setback disappear on sick leaveunder the terms of the Sickness Act. Theyrepeat that endlessly. Since we all must doour utmost to avoid going under, wecannot afford such goings-on.

After hearing the request on 10 August and15 September 1982, the Cantonal Courtagreed, by a decision of 29 September 1982,

Submitted by: A. Yilmaz-Dogan (represented by counsel, H.F. Doeleman).Alleged victim: The petitioner.State party: Netherlands.Date of adoption of Opinion: 10 August 1988.Subject matter:Termination of employment contract during pregnancy; statements ofdiscriminatory character made by employer; access to effective mechanisms ofprotection; discrimination based on national origin.

Procedural issues:Inadmissibility ratione materiae.Substantive issues:Right to work, to free choice of employment, to just andfavourable conditions of work, to protection against unemployment, to equal pay forequal work, to just and favourable remuneration; right to an effective remedy againstacts of racial discrimination.Articles of the Convention: 4 (a), 5 (e) (i) and 6.Finding: Violation (art. 5 (e) (i)).


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to terminate the employment contract witheffect from 1 December 1982. Article 1639w(former numbering) of the Civil Code excludesthe possibility of an appeal against a decisionof the Cantonal Court.

2.3 On 21 October 1982, Mrs. Yilmaz

requested the Prosecutor at the SupremeCourt to seek annulment of the decision of theCantonal Court in the interest of the law. By aletter of 26 October, she was informed that theProsecutor saw no justification for proceedingin that way. Convinced that the employersobservations of 19 July 1982 constitutedoffences under the Netherlands Penal Code,Mrs. Yilmaz, on 21 October 1982, requestedthe Prosecutor at the District Court at Zutphento prosecute her employer. On 16 February1983, the Prosecutor replied that he did notconsider the initiation of penal proceedings to

be opportune. The petitioner further applied tothe Minister of Justice, asking him to order theProsecutor at Zutphen to initiate suchproceedings. The Minister, however, replied on9 June 1983 that he saw no reason tointervene, since recourse had not yet beenhad to the complaint procedure pursuant toarticle 12 of the Code of Penal Procedure,which provided for the possibility of submittinga request to the Court of Appeal to orderprosecution of a criminal offence. In conformitywith the Ministers advice, Mrs.Yilmaz, on13 July 1983, requested the Court of Appeal at

Arnhem, under article 12 of the Code of PenalProcedure, to order the prosecution of heremployer. On 30 November 1983, the Court ofAppeal rejected the petition, stating, inter alia,that it could not be determined that thedefendant, by raising the issue of differencesin absenteeism owing to childbirth and illnessbetween foreign and Netherlands womenworkers, intended to discriminate by race, orthat his actions resulted in race discrimination.While dismissing the employers remarks inthe letter of 19 July 1982 as unfortunate andobjectionable, the Court considered that the

institution of criminal proceedings [was] not inthe public interest or in the interest of thepetitioner. The Courts decision takenpursuant to article 12 of the Code of PenalProcedure cannot be appealed before theSupreme Court.

2.4 Petitioners counsel concludes that theNetherlands violated article 5 (e) (i) of theConvention, because the alleged victim wasnot guaranteed the right to gainful work andprotection against unemployment, which issaid to be reflected in the fact that both the

Director of the Labour Exchange and theCantonal Court endorsed the termination ofher employment contract on the basis ofreasons which must be considered as raciallydiscriminatory. Secondly, he claims that theNetherlands violated article 6 of theConvention since it failed to provide adequate

protection as well as legal remedies becauseMrs. Yilmaz was unable to have thediscriminatory termination of her contractreviewed by a higher court. Thirdly, it isalleged that the Netherlands violated article 4of the Convention because it did not order theProsecutor to proceed against the employer onthe basis of either article 429 quater orarticle 137c to article 137e of the NetherlandsPenal Code, provisions incorporated in thatCode in the light of the undertaking, underarticle 4 of the Convention, to take actionto eliminate manifestations of racial

discrimination. Finally, it is argued that article 6of the Convention was violated because theState party denied the petitioner due processby virtue of article 12 of the Code of PenalProcedure, when she unsuccessfullypetitioned for penal prosecution of thediscrimination of which she claims to havebeen the victim.

3. At its thirty-first session in March 1985,the Committee on the Elimination of RacialDiscrimination decided to transmit thecommunication, under rule 92, paragraphs 1

and 3, of its rules of procedure, to the Stateparty, requesting information and observationsrelevant to the question of the admissibility ofthe communication.

4.1 By submissions dated 17 June and19 November 1985, the State party objects tothe admissibility of the communication. Itaffirms that the Committee is entitled, under itsrules of procedure, to examine whether aprima facie consideration of the facts and therelevant legislation reveals that thecommunication is incompatible with theConvention. For the reasons set out below, it

considers the communication to beincompatible ratione materiae with theConvention and therefore inadmissible.

4.2 The State party denies that either theDirector of the Labour Exchange or theCantonal Court in Apeldoorn violated any ofthe rights guaranteed by article 5 (e) (i) of theConvention and argues that it met itsobligation under that provision to guaranteeequality before the law in the enjoyment of theright to employment by providing non-discriminatory remedies. With respect to the


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content of the letter of Mrs. Yilmazs employerdated 19 July 1982, the State party points outthat the decision of the Cantonal Court doesnot, in any way, justify the conclusion that thecourt accepted the reasons put forth by theemployer. In reaching its decision to dissolvethe contract between the petitioner and her

employer, the Court merely considered thecase in the light of the relevant rules of civillaw and civil procedure; it refrained fromreferring to the petitioners national or ethnicorigin.

4.3 With respect to the petitioners argumentthat the State party should have provided for amore adequate mechanism of judicial reviewand appeal against Cantonal Courtjudgements related to the termination ofemployment contracts, the State party pointsout that the relevant domestic procedures,

which were followed in the present case,provide adequate protection and legalremedies within the meaning of article 6 of theConvention. Article 6 does not include anobligation for States parties to institute appealor other review mechanisms againstjudgements of the competent judicial authority.

4.4 With respect to the allegation that theState party violated articles 4 and 6 of theConvention by failing to order the Prosecutorto prosecute the employer, the State partyargues that the obligation arising from article 4of the Convention was met by incorporating in

the Penal Code articles 137c to e andarticles 429 ter and quater and penalizing anyof the actions referred to in these provisions.Article 4 cannot be read as obligating Statesparties to institute criminal proceedings underall circumstances with respect to actions whichappear to be covered by the terms of thearticle. Concerning the alleged violation ofarticle 6, it is indicated that there is a remedyagainst a decision not to prosecute: theprocedure pursuant to article 12 of the Code ofCriminal Procedure. The State party recallsthat the petitioner indeed availed herself of this

remedy, although the Court of Appeal did notfind in her favour. It further observes that theassessment made by the Court of Appealbefore deciding to dismiss her petition was athorough one. Thus, the discretion of the courtwas not confined to determining whether theProsecutors decision not to institute criminalproceedings against the employer was ajustifiable one; it was also able to weigh thefact that it is the Minister of Justices policy toensure that criminal proceedings are brought

in as many cases as possible where racialdiscrimination appears to be at issue.

5.1 Commenting on the State partyssubmission, petitioners counsel, in asubmission dated 5 February 1986, deniesthat the communication should be declaredinadmissible as incompatible ratione materiaewith the provisions of the Convention andmaintains that his allegations are well founded.

5.2 In substantiation of his initial claim, it isargued, in particular, that the Netherlands didnot meet its obligations under the Conventionby merely incorporating into its Penal Codeprovisions such as articles 137c to e and429 ter and quater. He affirms that, by ratifyingthe Convention, the State party curtailed itsfreedom of action. In his opinion, this meansthat a State cannot simply invoke theexpediency principle which, under domestic

law, leaves it free to prosecute or not; rather, itrequires the Netherlands actively to prosecuteoffenders against sections 137c and e and 429ter and quater unless there are graveobjections to doing so.

5.3 Furthermore, petitioners counselmaintains that in the decision of the Court ofAppeal of 30 November 1983, the causalrelationship between the alleged victimsdismissal and the different rate of absenteeismamong foreign and Netherlands womenworkers, as alleged by the employer, is clear.

On the basis of the Convention, it is argued,the Court should have dissociated itself fromthe discriminatory reasons for termination ofthe employment contract put forth by theemployer.

6. On 19 March 1987, the Committee,noting that the State partys observationsconcerning the admissibility of thecommunication essentially concerned theinterpretation of the meaning and scope of theprovisions of the Convention and havingfurther ascertained that the communicationmet the admissibility criteria set out in

article 14 of the Convention, declared thecommunication admissible. It further requestedthe State party to inform the Committee asearly as possible, should it not intend to makea further submission on the merits, so as toallow it to deal expeditiously with the matter.

7. In a further submission dated 7 July 1987,the State party maintains that no violation ofthe Convention can be deemed to have takenplace in the case of Mrs. Yilmaz. It argues thatthe alleged victims claim that, in casesinvolving alleged racial discrimination, the


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weighing by the judge of the partiessubmissions has to meet especially severecriteria, rests on personal convictions ratherthan legal requirements. The requirement incivil law disputes are simply that the judge hasto pronounce himself on the partiessubmissions inasmuch as they are relevant to

the dispute. The State party further refutes theallegation that the terms of the Conventionrequire the establishment of appealprocedures. In this respect, it emphasizes thatcriminal law, by its nature, is mainly concernedwith the protection of the public interest.Article 12 of the Code of Criminal Proceduregives individuals who have a legitimate interestin prosecution of an offence the right to lodgea complaint with the Court of Appeal againstthe failure of the authorities to prosecute.This procedure guarantees the properadministration of criminal law, but it does not

offer the victims an enforceable right to seealleged offenders prosecuted. This, however,cannot be said to constitute a violation of theConvention.

8.1 Commenting on the State partyssubmission, petitioners counsel, in asubmission dated 14 September 1987,reiterates that the State party violatedarticle 5 (e) (i) in that the cantonal judge failedto protect the petitioner againstunemployment, although the request for herdismissal was, allegedly, based on racially

discriminatory grounds. He asserts that, evenif the correspondence between the Director ofthe Labour Exchange and the employer did notrefer to the national or ethnic origin of thealleged victim, her own family name and thatof her husband must have made it clear to allthe authorities involved that she was of Turkishorigin.

8.2 With respect to the State partysargument that its legislation provides foradequate protectionprocedural andsubstantivein cases of alleged racialdiscrimination, it is claimed that domestic law

cannot serve as a guideline in this matter. Theexpediency principle, i.e., the freedom toprosecute, as laid down in Netherlands law,has to be applied in the light of the provisionsof the Convention with regard to legalprotection in cases of alleged racialdiscrimination.

9.1 The Committee on the Elimination ofRacial Discrimination has considered thepresent communication in the light of all theinformation made available to it by the parties,as required under article 14, paragraph 7 (a),

of the Convention and rule 95 of its rules ofprocedure, and bases its opinion on thefollowing considerations.

9.2 The main issues before the Committeeare (a) whether the State party failed to meetits obligation, under article 5 (e) (i), to

guarantee equality before the law in respect ofthe right to work and protection againstunemployment, and (b) whether articles 4 and6 impose on States parties an obligation toinitiate criminal proceedings in cases ofalleged racial discrimination and to provide foran appeal mechanism in cases of suchdiscrimination.

9.3 With respect to the alleged violation ofarticle 5 (e) (i), the Committee notes that thefinal decision as to the dismissal of thepetitioner was the decision of the Sub-DistrictCourt of 29 September 1982, which was based

on article 1639w (2) of the Netherlands CivilCode. The Committee notes that this decisiondoes not address the alleged discrimination inthe employers letter of 19 July 1982, whichrequested the termination of the petitionersemployment contract. After carefulexamination, the Committee considers that thepetitioners dismissal was the result of a failureto take into account all the circumstances ofthe case. Consequently, her right to workunder article 5 (e) (i) was not protected.

9.4 Concerning the alleged violation of

articles 4 and 6, the Committee has noted thepetitioners claim that these provisions requirethe State party actively to prosecute cases ofalleged racial discrimination and to providevictims of such discrimination with theopportunity of judicial review of a judgement intheir case. The Committee observes that thefreedom to prosecute criminal offencescommonly known as the expediencyprincipleis governed by considerations ofpublic policy and notes that the Conventioncannot be interpreted as challenging the raisondtre of that principle. Notwithstanding, it

should be applied in each case of allegedracial discrimination, in the light of theguarantees laid down in the Convention. In thecase of Mrs. Yilmaz-Dogan, the Committeeconcludes that the prosecutor acted inaccordance with these criteria. Furthermore,the State party has shown that the applicationof the expediency principle is subject to, andhas indeed in the present case been subjectedto, judicial review, since a decision not toprosecute may be, and was reviewed in thiscase, by the Court of Appeal, pursuant toarticle 12 of the Netherlands Code of Criminal


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Procedure. In the Committees opinion, thismechanism of judicial review is compatiblewith article 4 of the Convention; contrary to thepetitioners affirmation, it does not rendermeaningless the protection afforded bysections 137c to e and 429 ter and quater ofthe Netherlands Penal Code. Concerning the

petitioners inability to have the Sub-DistrictCourts decision pronouncing the terminationof her employment contract reviewed by ahigher tribunal, the Committee observes thatthe terms of article 6 do not impose uponStates parties the duty to institute amechanism of sequential remedies, up to andincluding the Supreme Court level, in cases ofalleged racial discrimination.

10. The Committee on the Elimination ofRacial Discrimination, acting under article 14,paragraph 7, of the Convention, is of theopinion that the information as submitted bythe parties sustains the claim that thepetitioner was not afforded protection inrespect of her right to work. The Committee

suggests that the State party take this intoaccount and recommends that it ascertainwhether Mrs. Yilmaz-Dogan is now gainfullyemployed and, if not, that it use its goodoffices to secure alternative employment forher and/or to provide her with such other reliefas may be considered equitable.


Opinion

1. The author of the communication (initialsubmission dated 15 March 1989 andsubsequent correspondence) is Demba TalibeDiop, a Senegalese citizen born in 1950,currently residing in Monaco. He claims to bethe victim of a violation by France of article 5of the International Convention on theElimination of All Forms of RacialDiscrimination. He is represented by counsel,who has provided a copy of his power ofattorney.

The facts as submitted

2.1 The author, who is married to a Frenchcitizen and has one child, has been domiciledin Monaco since December 1985. From July1982 to December 1985, he practised law in

Dakar. On 30 January 1986, the authorformally applied for membership in the Bar ofNice, submitting all the documentary evidencerequired. On 5 May 1986, the Bar Council ofNice rejected his application; on 8 May 1986,the competent authorities in Nice delivered hisresidents permit (visa dtablissement). On 30

May 1986, Mr. Diop appealed the decision ofthe Bar Council to the Court of Appeal of Aix-en-Province. By judgement of 27 October1986, the Court of Appeal dismissed theappeal; a subsequent appeal to the Court ofCassation was dismissed on 4 October 1988.

2.2 The decision of the Bar Council of Nicewas based on the fact that Mr. Diop did nothold the Certificate of Aptitude for the Exerciseof the Legal Profession (CAPA), as required byarticle 11 of Act No. 71.1130 of 31 December1971; the Court of Appeal upheld the decision

Submitted by: G.A.C. Enkelaar (counsel).Alleged victim: Demba Talibe Diop.State party: France.Date of adoption of Opinion:18 March 1991.Subject matter:Rejection of the authors application for membership in the BarAssociation; discrimination based on national origin.Procedural issues:Exhaustion of domestic remedies; inadmissibility rationemateriae.Substantive issues:Right to work, to free choice of employment, to just andfavourable conditions of work, to protection against unemployment, to equal pay for

equal work, to just and favourable remuneration.Articles of the Convention:1 (1), 5 (e) (i) and 14 (7) (a).Finding: No violation.


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on the same grounds. The Court of Cassation,however, found that the Court of Appeal haderroneously interpreted the text on waiver ofthe CAPA requirement, and that it hadsubstituted purely juridical considerations forthose that were justifiably criticized in the firstof the grounds of appeal. The Court of

Cassation found that the author met all thestatutory requirements for the exercise of thelawyers profession except one: the Frenchnationality. The author points out that the BarCouncil of Nice had not referred to hisSenegalese nationality as an obstacle to hisexercising the legal profession in France.

2.3 Article 11, paragraph 1, of ActNo. 71.1130 of 31 December 1971 stipulatesthat no onemay enter the legal profession ifhe is not French, except as provided for ininternational Conventions. The author argues

that his case falls within the scope ofapplication of the Franco-SenegaleseConvention on Establishment (Conventiondtablissement franco-sngalaise) of29 March 1974, article 1 of which prohibitsdiscrimination between French andSenegalese citizens in the enjoyment of civilliberties to which they are entitled on the sameterms (including the right to work, set forth inthe preamble of the French Constitution of4 October 1958). In the light of this provision,according to the author, the Court of Cassationshould not have considered Senegalese

citizenship as an impediment to the exercise ofthe legal profession in France. He furtherindicates that the legal profession does not fallwithin the occupational categories to which therestrictions of article 5 of the Convention apply,and no other Convention provision expresslyprohibits the free exercise of the legalprofession.

2.4 Article 9 of the Franco-SenegaleseConvention on Movement of Persons(Convention franco-sngalaise relative lacirculation des personnes) of 29 March 1974stipulates that French nationals wishing to

establish themselves in Senegal andSenegalese nationals wishing to establishthemselves in France for the purpose ofengaging in self-employed activities, or withoutengaging in any gainful occupation, must produce the required evidence of the means ofsubsistence available to them (emphasisadded). The author states that the legalprofession is considered in France to be theepitome of self-employed activity; this isconfirmed by article 7, paragraph 1, of ActNo. 71.1130.

2.5 Article 23 of the Franco-Senegalese TaxConvention (Convention fiscale franco-sngalaise) of 29 March 1974 provides that[T]he income that a person domiciled in aContracting State draws from a liberalprofession or similar independent activity shallbe subject to tax in that State alone, unless

that person is regularly possessed of a fixedbase for the exercise of his profession in theother Contracting State For the purposes ofthe present article, scientific, artistic, literary,educational and pedagogical activities, interalia, as well as the activities of doctors,advocates, architects and engineers, areconsidered liberal professions (emphasisadded).

2.6 The author further notes that, on 12February 1990, he requested that his name beadded to the list of legal counsel (conseils

juridiques), as French nationality is noprerequisite for the practice as legal counsel.By letter dated 24 April 1990, he was informedthat his inscription was imminent. On 26 June1990, however, he was told that his requestcould not be complied with, as he had notdemonstrated that he had fulfilled therequirement of a three-year apprenticeship(stage); the author affirms that his applicationhad been complete and included, in particular,proof of such an apprenticeship.

The complaint3.1 The author considers that he was deniedthe right to work on the ground of nationalorigin, and alleges that the French judicialauthorities violated the principle of equality,enshrined in article 5 of the InternationalConvention on the Elimination of All Forms ofRacial Discrimination. Allegedly, his right toequal treatment before the tribunals wasviolated in two respects: First, whereas he wasdenied to practise law in Nice, six lawyers ofSenegalese nationality are members of theParis Bar. According to the author, his

application would have been granted had hesubmitted it in Paris; he considers itunacceptable that the State party should allowsuch differences within the national territory.Secondly, it is submitted that the principle ofequality and reciprocity at the internationallevel is also affected by virtue of the fact thaton the basis of the above-mentioned bilateralinstruments, all French lawyers have the rightto exercise their profession in Senegal andvice versa.


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3.2 Distinctions, exclusions, restrictions orpreferences established in the application ofthe International Convention on the Eliminationof All Forms of Racial Discrimination must bespelled out in legislative provisions which, theauthor claims, do not exist in his case. Suchdistinctions would contravene article 34 of the

French Constitution. Furthermore, even if therewere pertinent domestic legislation, thebilateral Franco-Senegalese Conventions of29 March 1974 prevail over domesticlegislation and authorize French andSenegalese citizens to exercise a liberalprofession, including the legal one, on theterritory of the State of which they do not havethe citizenship.

3.3 The author claims that existingSenegalese legislation (Law on the Exercise ofthe Legal Profession of 1984) does not prohibit

legal practice by French citizens in Senegal. Inthis context, he notes that on 8 January 1985,Ms. Genevive Lenoble, a French citizen andmember of the Paris Bar, was admitted to theBar of Senegal; so was, on 7 January 1987,another French citizen, Ms. Dominique Picard.On the other hand, the Governing Body of theBar Council of Nice required, for Mr. Diopsinscription on the roll, the Certificate ofAptitude for the Exercise of the LegalProfession (CAPA), although article 44 of thedecree of 9 June 1972, concerning theapplication of article 11, paragraph 3, of the

Law of 31 December 1971 stipulates that thisCertificate is not necessary for individuals whoalready are qualified to practise law in acountry with which France concluded anagreement of judicial cooperation.

3.4 It is submitted that the State partyviolated the authors right to a family lifebecause, in the light of the impossibility topractise law in Nice, the author was forced totemporarily leave his home and take upresidence and practise law in Dakar, so as tobe able to provide for his family.

3.5 The author claims that the decision of theBar Council of Nice of 5 May 1986, confirmedby the Court of Appeal on 27 October 1986, isirreconcilable with the judgement of the Courtof Cassation of 4 October 1988. The Court ofCassation did not annul the decision of the BarCouncil as contrary to the law in criticizing itsmotivation; it simply substituted its ownmotives in dismissing the appeal. In theauthors opinion, the irreconcilability of thejudicial decisions in the case is equivalent, inlaw, to a refusal to adjudicate his request foradmission to the bar altogether, thus denying

him an effective remedy before domesticcourts. In this way, it is submitted, he wasdenied the exercise of a fundamental publicfreedom, that is, his right to work in France.

The State partys observations

4.1 The State party contends that the authorhas failed to raise, before the domestic courts,the issue of discriminatory treatment of whichhe claims to have been the victim; accordingly,his communication should be declaredinadmissible because of non-exhaustion ofdomestic remedies, under article 14,paragraph 7 (a), of the Convention.

4.2 The State party further observes that thecommunication is inadmissible as incompatiblewith the provisions of the Convention inaccordance with article 1, paragraph 2, which

stipulates that the Convention shall not applyto distinctions, exclusions, restrictions orpreferences made by a State party to thisConvention between citizens and non-citizens. In Mr. Diops case, the rejection ofhis application by the Bar Council of Nice wasexclusively based on his nationality, notbecause he was Senegalese but because hewas notFrench within the meaning of article 1,paragraph 2. The State party adds that theratio legis of article 11, paragraph 1, of ActNo. 71.1130 of 31 December 1971 is to protectFrench lawyers from foreign competition. In so

doing, France exercises her sovereignprerogatives expressly recognized by article 1,paragraph 2, of the Convention.

4.3 With respect to the contention that theauthor meets all the requirements for theexercise of the legal profession in France, theState party claims that, for the Court ofCassation, the fact that the author was not ofFrench nationality was in itself sufficient todismiss the appeal, thus making it superfluousto consider whether other conditions for theexercise of the legal profession in France hador had not been met. The State party endorsesthe interpretation of article 1 of the Franco-Senegalese Convention on Establishment bythe Court of Cassation, according to which thisprovision merely concerns the enjoyment ofcivil liberties and cannot be construed asencompassing a right to exercise the legalprofession. For the State party, the authorsargument that the right to work is a civil libertyand that, since the legal profession is gainfuloccupation it is a civil liberty, is a meresophism and must be rejected.


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4.4 The State party further explains theorganization and the functions of the system ofBar Councils attached to each regional court(Tribunal de Grande Instance). These BarCouncils are administered by a GoverningBoard (Conseil de lOrdre), enjoy legalpersonality and operate independently of one

another. It is the duty of the Governing Boardof each Bar Council to decide on applicationsfor admission to the Bar; decisions on suchmatters by the Board may only be appealed bythe applicant and the Public Prosecutor(Procureur gnral) of the competent Court ofAppeal, within two months of the notification ofthe decision. The State party adds that eachGoverning Body decides independently onapplications for admission to the Bar and may,in the process, err in its interpretation ofapplicable legal provisions.

4.5 Inasmuch as the admission of sixSenegalese lawyers to the Bar of Paris isconcerned, the State party submits that theGoverning Body of the Bar of Pariserroneously interpreted applicable regulationsby admitting these Senegalese citizens. TheState party affirms that this situation does notcreate any rights for the author, nor a legalbasis on which the inscription of everySenegalese lawyer on the Bar Roll could bejustified, as any such act would violate theapplicable rules and regulations. Furthermore,these lawyers were admitted prior to the Court

of Cassations judgement in the authors case;if this jurisprudence were to be invoked beforethe ordinary tribunals, it is likely, according tothe State party, that these lawyers would haveto be stripped of membership.

4.6 With respect to the treatment of Frenchlawyers by the Senegalese judicial authorities,the State party explains that article 16 of aSenegalese Law on the Exercise of the LegalProfession of 1984 stipulates that no one maybe admitted to the Bar in Senegal if he is notSenegalese or the citizen of a State that grantsreciprocity. In application of this provision, the

Bar Council of Dakar rejected, on 14 March1988, the application of a French lawyeradmitted to the Bar of Senegal on aprobationary basis in 1984. The decision of theBar Council of Dakar was based on the factthat the applicant was not Senegalese and thatno international Convention or other applicableprovision provided for reciprocity in the matter.The Court of Appeal of Dakar confirmed thisdecision by judgement of 15 April 1989. Duringthe appeal proceedings, it was submitted onbehalf of the Bar Council that the Franco-

Senegalese Convention on Establishment of1974 did not provide for reciprocity withrespect to liberal professions. In his pleadings,the Public Prosecutor, who had himselfparticipated in the elaboration of the 1974Convention, contended that the omission ofliberal professions had been deliberate; the

State party notes that one of the Conventionsaims purportedly was to forestall the admissionof French lawyers to the Bar of Senegal. TheState party concludes that Mr. Diops situationin France is similar to that of French lawyerswishing to practise in Senegal and that,accordingly, the principle of equality oftreatment and of reciprocity invoked by himmay be applied to his disadvantage.

Issues and proceedings before the Committee

5.1 Before considering any claims containedin a communication, the Committee on theElimination of Racial Discrimination must, inaccordance with rule 91 of its rules ofprocedure, determine whether or not it isadmissible under the International Conventionon the Elimination of All Forms of RacialDiscrimination.

5.2 The Committee took note of the Statepartys observation that the communicationwas inadmissible on the ground of non-exhaustion of domestic remedies, since theauthor had not invoked discriminatory

treatment based on national origin before thedomestic courts. The Committee noted,however, that on the basis of the informationbefore it, the issue of the authors nationalorigin was first addressed by the court of lastinstance, the Court of Cassation, in its decisionof 4 October 1988. Furthermore, the Stateparty had not indicated the availability of anyother remedies to the author. In thecircumstances, the Committee concluded thatthe requirements of article 14, paragraph 7 (a),of the Convention and of rule 91 (e) of theCommittees rules of procedure, had been

met.5.3 In respect of the State partys observationthat the communication should be declaredinadmissible as not falling within the scope ofthe Convention in the light of article 1,paragraph 2, the Committee observed that thequestion of the application of this article wasone of substance which should be examined ata later stage, in conformity with rule 95 of therules of procedure. The Committee furtherobserved that rule 91 (c) of the rules ofprocedure enjoined it to ascertain whether any


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communication is compatible with theprovisions of the Convention, and thatcompatibility within the meaning of rule 91 (c)must be understood in procedural, notsubstantive, terms. In the Committees opinion,the communication did not suffer fromprocedural incompatibility.

5.4 On 22 August 1990, therefore, theCommittee on the Elimination of RacialDiscrimination declared the communicationadmissible.

6.1 The Committee on the Elimination ofRacial Discrimination has examined thepresent communication in the light of all theinformation made available by the parties, asprovided for in rule 95, paragraph 1, of its rulesof procedure.

6.2 The Committee has noted the authorsclaims (a) that he was discriminated against onone of the grounds defined in article 1,paragraph 1, of the Convention on theElimination of All Forms of RacialDiscrimination, (b) that the rejection of hisapplication for admission to the Bar of Niceconstituted a violation of his right to work(art. 5 (e) of the Convention) and his right to afamily life, and (c) that the rejection of hisapplication violated the Franco-SenegaleseConvention on Movement of Persons. Aftercareful examination of the material placedbefore it, the Committee bases its decision on

the following considerations.6.3 In respect of the alleged violations of theFranco-Senegalese Convention on Freedomof Movement of 29 March 1974, theCommittee observes that it is not within itsmandate to interpret or monitor the applicationof bilateral conventions concluded betweenStates parties to the Convention, unless it canbe ascertained that the application of theseconventions result in manifestly discriminatoryor arbitrary treatment of individuals under thejurisdiction of States parties to the InternationalConvention on the Elimination of All Forms of

Racial Discrimination, which have made thedeclaration under article 14. The Committeehas no evidence that the application or non-

application of the Franco-SenegaleseConventions of March 1974 has resulted inmanifest discrimination.

6.4 As to the alleged violation of article 5 (e)of the Convention and of the right to afamily life, the Committee notes that the

rights protected by article 5 (e) are ofprogrammatic character, subject toprogressive implementation. It is not within theCommittees mandate to see to it thatthese rights are established; rather, it isthe Committees task to monitor theimplementation of these rights, once they havebeen granted on equal terms. Insofar as theauthors complaint is based on article 5 (e) ofthe Convention, the Committee considers it tobe ill-founded.

6.5 Finally, inasmuch as the allegation ofracial discrimination within the meaning of

article 1, paragraph 1, of the Convention isconcerned, the Committee notes thatarticle 11, paragraph 1, of the French ActNo. 71.1130 of 31 December 1971 stipulatesthat no one may accede to the legal professionif he is not French, except as provided for ininternational conventions.

6.6 This provision operates as a preferenceor distinction between citizens and non-citizens within the meaning of article 1,paragraph 2, of the Convention: the refusal toadmit Mr. Diop to the Bar was based on the

fact that he was not of French nationality, noton any of the grounds enumerated in article 1,paragraph 1. The authors allegation relates toa situation in which the right to practise lawexists only for French nationals, not to asituation in which this right has been granted inprinciple and may be generally invoked;accordingly, the Committee concludes thatarticle 1, paragraph 1, has not been violated.

7. The Committee on the Elimination ofRacial Discrimination, acting under article 14,paragraph 7 (a), of the InternationalConvention on the Elimination of All Forms of

Racial Discrimination, is of the opinion that thefacts as submitted do not disclose a violationof any of the provisions of the Convention.


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Opinion

1. The author of the communication (initial

submission dated 15 August 1991) is MichelL.N. Narrainen, a Norwegian citizen born in1942, currently detained in a penitentiary inOslo. He claims to be a victim of violations byNorway of his rights under the InternationalConvention on the Elimination of All Forms ofRacial Discrimination, but does not invokespecific provisions of the Convention.

The facts as found by the Committee

2.1 The author is of Tamil origin and wasborn in Mauritius; in 1972, he was naturalized

and became a Norwegian citizen. On25 January 1990, he was arrested inconnection with a drug-related offence. On8 February 1991, before the Eidsivating HighCourt (Court of AppealLagmannsretten), ajury of 10 found him guilty of offences againstsection 162 of the Criminal Code (drugtrafficking), and the author was sentenced tosix and a half years of imprisonment. Theauthor appealed to the Supreme Court, butleave to appeal was denied in early March1991. On 17 February 1992, the author filed apetition for re-opening of the case. By order of

8 July 1992, the Court of Appeal refused therequest. The author again appealed the orderto the Supreme Court which, on 24 September1992, ruled that the case was not to bereopened.

2.2 The author contends that there was nocase against him, except for the evidencegiven by another individual, S.B., alreadyconvicted of drug-related offences, whoallegedly had been promised a reduction of hissentence in exchange for providingincriminating evidence against the author. In

court, S.B. withdrew these allegations. In thesame context, the author complains about theallegedly racist attitude of the investigating

police officer, S.A., who reportedly made itclear that he wished that people like me hadnever set foot in his country (authors quote).

2.3 The author contends that under the termsof the initial indictment, he was accused ofhaving travelled to the Netherlands in the earlysummer of 1989 to buy amphetamines. Whenhe was able to produce evidence that, at thetime in question, he was in Mauritius, the initialindictment allegedly was changed in court,after his own legal representative hadcontacted the prosecution and asked for theindictment to be changed. The author adds

that it was impossible for him to have had anycontacts with S.B. or his friends prior to orduring the trial.

2.4 The author further contends that twojurors in the Court of Appeal were biasedagainst him and that they openly stated thatindividuals such as the author, who lived ontaxpayers money, should be sent back towhere they had come from. The remarksallegedly included slurs on the colour of theauthors skin. Yet these jurors, althoughchallenged, were not disqualified by the Court

and participated in the deliberations of theverdict.

2.5 The State party gives the followingversion of the incident referred to by the author(see para. 2.4):

The Court record shows that during abreak in the court proceedings, a lawstudent, Ms. S.R.H., overheard a privateconversation between two members ofthe jury, Ms. A.M.J. and Ms. S.M.M. Thisconversation was referred to defencecounsel, who requested that one of the

Submitted by: Michel L.N. Narrainen(represented by counsel).Alleged victim: The petitioner.State party: Norway.

Date of adoption of Opinion:15 March 1994.Subject matter:Discrimination at court; partial investigation and partial judgement;discrimination based on national origin.Procedural issues:Substantiation for purposes of admissibility.Substantive issues:Right to equal treatment before the tribunals and all other organsadministering justice.Article of the Convention:5 (a).Finding: No violation.


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jurors be dismissed. The court called thelaw student and the two jurors to testify.[They] agreed on the facts: Ms. J. hadexpressed dismay at the defendantreceiving NKr 9,000 a month withouthaving to work for it, and had also saidthat he ought to be sent back to where he

came from. Ms. M. had said that thepurpose of a case like this was to getmore information about the drugtrafficking. The law student, Ms. H., hadat this point entered the conversation,saying that the purpose of a case like thiswas to determine whether the defendantwas guilty. According to the threewitnesses, the question of guilt hadotherwise not been mentioned by any ofthem.

Defence counsel requested that Ms. J. be

dismissed from the jury because,according to section 108 of the CourtsAct, a juror could be disqualified if thereare circumstances ... apt to impairconfidence in his or her impartiality. TheProsecutor claimed that nothing had beensaid that could influence the members ofthe jury, and that everyone was entitled tohave opinions. Discussing privateopinions during a break [was] no groundfor disqualification, and the case itself hadnot been discussed by the three persons.

The Court unanimously decided that

Ms. J. should not be disqualified becauseshe had not discussed the question ofguilt in the present case, and the viewsshe had expressed were not uncommonin Norwegian society.

The complaint

3.1 The author claims that racistconsiderations played a significant part in hisconviction, as the evidence against him wouldnot have supported a guilty verdict. He addsthat he could not have expected to obtain a fairand impartial trial, as all membersof the jurycame from a certain part of Oslo where racismis at its peak. He asserts that this situationviolated his rights under the InternationalConvention on the Elimination of All Forms ofRacial Discrimination.

3.2 The author claims that other factorsshould be taken into consideration inassessing whether he was the victim of racialdiscrimination. In this context he mentions theamount of time spent in custody prior to the

trial (381 days), out of which a total of ninemonths were allegedly spent in isolation, andthe quality of his legal representation: thus,although he was assigned legal counsel free ofcharge, his representative was more of aprosecutor than a lawyer of the defence.Finally, the author considers that a previous

drug-related conviction, in 1983, wasdisproportionably and unreasonably used ascharacter evidence against him during the trialin February 1991.

The State partys information and observationsand authors comments

4.1 The State party considers that thecommunication should be declaredinadmissible as manifestly ill-founded, inaccordance with the established practice insimilar international human rights monitoringbodies.

4.2 As to the authors claim that he wasdenied his right to equal treatment before thecourts because the jurors were selected from apart of Oslo known for a prevalence of racistopinions, the State party notes that nodocumentation has been adduced in supportof this contention. Authors counsel onlyrequested that one juror be disqualified; for therest of the jurors, it is submitted that the mattershould have been raised in court, anddomestic remedies cannot be deemed

exhausted in their respect.4.3 After explaining the operation of section108 of the Courts Act (governing thedisqualification of jurors), the State party pointsout that it is not uncommon for jurors to havenegative feelings towards the defendant in acriminal case, but that this does not imply thatthey are incapable of giving the defendant afair hearing. In the instant case, the viewsexpressed by the jurors were of a generalnature, and the courts decision not todisqualify the juror was unanimous.

4.4 As to the authors claim of unfairlyexpeditious dismissal of his appeal to theSupreme Court, the State party notes thatunder section 335, subsection 2, of the Codeof Criminal Procedure, no appeal may be filedwith the Supreme Court if it merely concernsthe evaluation of evidence in the case. In theauthors case, the appeal was based on twogrounds: the issue of the jurys impartiality (asa procedural error) and the severity of theprison term imposed on the author. The Stateparty notes that under section 349 of the Code


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of Criminal Procedure, leave to appeal shouldnot be granted if the Appeals Board isunanimous that an appeal would not succeed.Under section 360, procedural errors shall onlybe taken into consideration if they are deemedto have affected the substance of thejudgement. In the authors case, the issue of

the length of the prison term was considered,but as the answer to whether the SupremeCourt should hear the appeal was negative, itwas deemed unlikely that the sentence wouldbe reduced. Concluding on this issue, theState party insists that there is no indicationthat the author was not given the sameopportunities to defend his case before thecourts as other individuals, in connection bothwith the appeal and the request for a re-opening of the case, regardless of race, colourof skin, ethnic origin, etc.

4.5 As to the length of the pretrial detention,the State party explains that a little over oneyear of pretrial custody is not unusual in casesinvolving drug-related offences. According tothe State party, the delay of nine months fromarrest to the dispatch of the indictment to theCourt of Appeal was partly attributable to theauthor himself, since he changed his lawyerseveral times while in custody, which in turndelayed the preparations for the main hearing.The State party submits that nothing indicatesthat the author was kept in custody longer thanother suspects merely because of his origin;

this part of the complaint therefore is also saidto be inadmissible as manifestly ill-founded.

4.6 Finally, the State party dismisses asmanifestly ill-founded the authors complaintabout the quality of his legal representation.Under section 107 of the Code of CriminalProcedure, a court-appointed lawyer isremunerated by the State; the author had theopportunity to choose his own counselthroughout the judicial proceedings, and itcannot be said that he was subjected to racialdiscrimination in this respect.

5.1 In his comments, the author challengesthe State partys submission on variousprocedural and factual grounds. He claims thatthe State partys version of the judicialproceedings is one-sided, because it isadapted from the Court Book, which accordingto him reveals little of substance. He furtherasserts that in a letter to the Registry of theSupreme Court, the prosecutor himselfadmitted that the only prosecution witnessagainst Mr. Narrainen acknowledged in courtto have been pressed by the investigatingofficer to make a false and incriminating

statement. As this virtually destroyed theprobative value of the prosecutions case, theauthor concludes that he was convicted on thebasis of racist ideas and serious errorscommitted by the investigating authorities.

5.2 The author reiterates that several factors

in his case, including the gathering and theevaluation of evidence, the omission ofimportant statements in the court book, theabsence of serious preparation of his defenceby the court-appointed lawyers, the handling ofhis appeal, all underline that he was denied afair and impartial hearing, and that hisconviction was based on racist considerations.

The Committees admissibility decision

6.1 During its forty-second session in March1993, the Committee examined the

admissibility of the case. It duly considered theState partys contention that the authorscomplaint was inadmissible as his allegationswere either unsubstantiated or unfounded butconcluded that the communication satisfied theconditions for admissibility laid down in rule 91of the Committees rules of procedure.

6.2 On 16 March 1993, therefore, theCommittee declared the communicationadmissible insofar as it may raise issues underarticle 5 (a) of the Convention.

The State partys observations on the meritsand counsels comments

7.1 The State party dismisses as incorrectthe authors allegation that the members of thejury in his trial came from those parts of Oslowhere racism is rampant and that they hadneo-Nazi affiliations. It notes that the list ofjurors in the case was drawn up in accordancewith Chapter 5 of the Courts Act, that neitherprosecutor nor counsel for the defenceobjected to the way the list was drawn up, andthat counsel challenged two jurors whose

names appeared on the initial list. Six of thejurors came from areas outside Oslo, and fourfrom different parts of Oslo. The State partynotes that no part of Oslo can be described asparticularly racist, and that neither the courtsnor the Government have any knowledgeabout the affiliation of jurors with politicalparties. However, the procedure for juryselection makes it unlikely that jurors fromfringe parties will be chosen, as jurors aredrawn by lot from lists that are provided bymunicipal politicians.


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7.2 As to the impartiality of the jurors, theState party reiterates its earlier observation(see para. 2.5). It adds that the person whohad made the inimical remarks during courtrecess, Ms. J., is a salaried worker who, in1990, earned less income than the authorreceived in terms of social benefits during the

same year. In these circumstances, the Stateparty submits, the rather general remarks ofMs. J. were a not very surprising reaction to amatter that must have seemed unjust to her.

7.3 The State party recalls that the issue ofwhether the fact that the remark was mademeant that Mr. Narrainen did not receive a fairtrial was examined in detail by the InterlocutoryAppeals Committee of the Supreme Courtsince, under section 360, paragraph 2 lit.3, ofthe Norwegian Code of Criminal Procedure, ajudgement is declared null and void by the

Supreme Court if it is found that one of thejurors was disqualified. According to the Stateparty, the fact that the Interlocutory AppealsCommittee denied leave to appeal to theSupreme Court implies that the Boardconsidered it obvious that there were nocircumstances in the case likely to impairconfidence in the impartiality of Ms. J. It isnoted that in deciding whether leave to appealto the Supreme Court shall be granted or not,the Interlocutory Appeals Committee alsorelies on international instruments such as [theInternational Convention on the Elimination of

Racial Discrimination] as relevant sources oflaw.

7.4 In respect of the assessment of evidencein the case, the State party explains therationale for trying cases involving crimespunishable with imprisonment of six years ormore at first instance before the High Court. Insuch cases, the court is constituted of threeprofessional judges and a jury of 10; the jurydecides on the question of guilt. A judgementof the High Court may be appealed to theSupreme Court, but errors in the evaluation ofevidence in relation to the question of guilt are

not permissible grounds of appeal (sect. 335,para. 2, of the Code of Criminal Procedure).The State party explains that it is importantthat serious criminal cases are dealt with in areassuring manner from the beginning. This iswhy such cases are dealt with in the HighCourt, with a jury, at first instance. The jurydecides on the guilt. This is common practice,based on the principle that a defendant shallbe judged by equals ... This principle would beof little value if the jurys assessment of

evidence ... could be overruled by theprofessional judges in the Supreme Court.

7.5 As to the admissibility of the evidenceplaced before the High Court and the allegedpressure exerted by the police on witness S.B.to make a false statement, the State party

recalls that Norwegian courts assess evidencefreely. That Mr. Narrainen was convictedindicates that in the case, the jurors did notbelieve S.B. when he retracted his earlierstatement and claimed that the author wasinnocent. In this context, the State partysubmits that the most likely explanation forS.B.s attitude in court was his fear of reprisalsif he upheld his earlier statement; it notes thatS.B., himself a detainee at the prison ofBergen, was placed under pressure towithdraw his initial statement at around thetime the author himself arrived at the prison,

and that he was afraid of reprisals. Still in thesame context, the State party dismisses asincorrect or misleading parts of the authorsstatements reproduced in paragraph 5.1above.

7.6 The State rejects as incorrect the authorsclaim that S.B. was promised a reducedsentence in exchange for providingincriminating evidence against the author, asneither the police nor the public prosecutor arecompetent to engage in any plea bargainingwith the accused. The State party similarlyrejects as unfounded the authors claim that

S.B. was promised a cosy place to serve hissentence in exchange for information on theauthor: in fact, S.B. was confined to the mainprison for the Rogaland area where, accordingto his own statement, he was subjected toconsiderable pressure from other prisoners,including the author.

7.7 Concerning the use of a previousconviction as evidence against Mr. Narrainen,the State party submits that it is normal underNorwegian criminal law to admit suchevidence, and that there is absolutely no

evidence that the admission of the evidencehad any connection with the authors ethnicorigin.

7.8 With regard to the alleged illegal changein the authors indictment, the State partyrefers to section 38, paragraph 2, of the Codeof Criminal Procedure, which stipulates thatwith regard to the penal provision applicableto the matter, the Court is not bound by theindictment ... The same applies with regard topunishment and other sanctions applicable. Achange in the determination of which provision


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is applicable to the same offence can also bemade by the prosecutors office (sect. 254,para. 3, of the Code of Criminal Procedure);this is what occurred in the authors case. TheState party explains that the reason why theapplicable provision may be changed, afterindictment but before start of the trial, is that

the defendant is notbeing charged with a newoffence; it is simply a question of choosing theappropriate provision applicable to the samefacts.

7.9 Finally, as to the duration ofMr. Narrainens pretrial detention the Stateparty reiterates its comments detailed inparagraph 4.5 above. As to the quality of hiscounsel, it recalls that since the author wasimprisoned in Oslo, he had the opportunity tochoose between many highly qualifiedlawyers. It explains that when the court has

appointed a legal aid representative, it will notappoint another one unless asked to do so bythe defendant: therefore, any lawyer assistingMr. Narrainen must have been chosenpursuant to his requests. The State partyconcludes that there is no reason to believethat Mr. Narrainen did not receive the samelegal services as any other accused. Rather,he was given every opportunity to request anew representative every time he wasdissatisfied with his previous one, therebyusing the safeguard provisions of the criminalprocedure system to the full.

8.1 In his comments on the State partyssubmission, counsel provides detailedinformation about the composition of juriesunder the criminal justice system. According torecent statistics, 43 per cent of foreignnationals residing in Norway live in Oslo orneighbouring boroughs. Of the foreign-bornNorwegian citizens some 60,516, of [whom]half come from Latin America, Asia and Africa,lived in Oslo. Between 10 and 15 per cent ofall persons living in Oslo have cultural andethnic backgrounds that differ from the rest ofthe population.

8.2 Counsel observes that few if anyforeigners or foreign-born Norwegians figure inlists from which jury members are selected.Eidsivating High Court was unwilling to providehim with a copy of the jury lists from the Osloarea, on the ground that the lists, comprisingsome 4,000 names, contain private data thatshould not be made public. According tocounsel, Norwegian court practice clearlyshows that Norwegian juries are all whiteininterviews with prosecutors, lawyers andconvicted prisoners, no one remembered ever

having met a coloured member of a jury. Thisinformation is corroborated by a newspaperreport, dated 24 February 1994, which screensthe lists of jurors provided by the city of Oslo. Itstates that out of 2,306 individuals, no morethan 25 have a foreign background, and mostof the foreign names are English, German or

American ones. It further notes that accordingto official statistics, 38,000 foreign nationalsaged 20 or more live in Oslo; another 67,000persons were either born abroad or haveforeign parents.

8.3 Counsel notes that the reason for the lackof equal representation of ethnic groups injuries may be explained by the fact that localpolitical parties appear reluctant to nominatemembers of such groups and the fact that fiveyears of residence in Norway and proficiencyin Norwegian are prerequisites for jury duty.

Counsel opines that this situation shouldprompt the Norwegian high courts to givespecial attention to ensuring a fair trial forcoloured defendants.

8.4 As to the alleged impartiality of the jurors,counsel subscribes to the analysis of theallegedly racist remark of Ms. J. made by thelawyer who appealed on the authors behalf tothe Supreme Court. In his brief to theInterlocutory Appeals Committee, this lawyerargued, by reference to section 135 (a) of theCriminal Code which prohibits publicexpressions of racism, that remarks such as

Ms. J.s aimed at an accused person areparticularly reprehensible if made during theproceedings in front of a member of theaudience, and if made in a case such as theauthors, who was foreign-born. To this lawyer,Ms. J., when repeating her statement from thewitness stand, gave the clear impression ofharbouring racial prejudices against persons offoreign origin.

8.5 Counsel further doubts that, given theextremely heavy workload of the InterlocutoryAppeals Committee which handles an average

of 16 cases per day, the Appeals Committeereally had the time to take into considerationall the relevant factors of the authors case,including those concerning racialdiscrimination under international law. Hefurther notes that the parties are notrepresented before the Interlocutory AppealsCommittee which, moreover, does not giveany reasons for its decision(s).

8.6 Concerning the evaluation of evidence inthe case, counsel notes that Mr. Narrainenwas convicted on the basis of one police report


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and the testimonies of the police officers whohad taken the statement of S.B. That this lackof other substantial evidence againstMr. Narrainen raised doubts about his guiltwas demonstrated by the fact that one of thethree judges in the case found that the guilt ofthe accused had not been proven beyond

reasonable doubt. Counsel argues that itcannot be excluded that some of the jurorshad similar doubts; in the circumstances, thepresence in the jury of a person who haddisplayed-evidence of bias against the authormay easily have tipped the balance.

8.7 In the light of the above, counsel claimsthat the Norwegian courts violated article 5 (a)of the Convention through the judgement ofthe High Court of 6 February 1991 and thedecision of the Interlocutory AppealsCommittee of 7 March 1991. While the jurors

remark may not in itself have amounted to aviolation of the Convention, the fact that Ms. Jwas not removed from the jury constituted aviolation of article 5 (a). In this context, counselrefers to the Committees Opinion in the caseof L.K.v. Netherlands,1where it was held thatthe enactment of legislation making racialdiscrimination a criminal offence does not initself represent full compliance with theobligations of States parties under theConvention.

8.8 Counsel concludes that the way in whichNorwegian juries are constituted does not

ensure racial equality, that the remark madeby Ms. J. to another juror was evidence of biasagainst the author because of his origin andcolour, and that neither the High Court nor theInterlocutory Appeals Committee devotedappropriate attention to counsels claim ofracial discrimination or properly evaluated thepossibility of a violation of Norways obligationsunder the Convention.

Examination of the merits

9.1 The Committee has considered theauthors case in the light of all the submissionsand documentary evidence produced by theparties. It bases its findings on the followingconsiderations.

9.2 The Committee considers that in thepresent case the principal issue before it iswhether the proceedings againstMr. Narrainen respected his right, under

1Communication No. 4/1991, Opinion of 16 March1993, para. 6.4.

article 5 (a) of the Convention, to equaltreatment before the tribunals, withoutdistinction as to race, colour or national orethnic origin. The Committee notes that therule laid down in article 5 (a) applies to alltypes of judicial proceedings, including trial byjury. Other allegations put forward by the

author of the communication are in theCommittees view outside the scope of theConvention.

9.3 If members of a jury are suspected ofdisplaying or voicing racial bias against theaccused, it is incumbent upon national judicialauthorities to investigate the issue and todisqualify the juror if there is a suspicion thatthe juror might be biased.

9.4 In the present case, the inimical remarksmade by juror Ms. J. were brought to theattention of the Eidsivating High Court, which

duly suspended the proceedings, investigatedthe issue and heard testimony about theallegedly inimical statement of Ms. J. In theview of the Committee, the statement of Ms. J.may be seen as an indication of racialprejudice and, in the light of the provision ofarticle 5 (a) of the Convention, the Committeeis of the opinion that this remark might havebeen regarded as sufficient to disqualify thejuror. However, the competent judicial bodiesof Norway examined the nature of thecontested remarks, and their potentialimplications for the course of the trial.

9.5 Taking into account that it is neither thefunction of the Committee to interpret theNorwegian rules on criminal procedureconcerning the disqualification of jurors, nor todecide as to whether the juror had to bedisqualified on that basis, the Committee isunable to conclude, on the basis of theinformation before it, that a breach of theConvention has occurred. However, in the lightof the observations made in paragraph 9.4,the Committee makes the followingrecommendations pursuant to article 14,

paragraph 7, of the Convention.10. The Committee recommends to the Stateparty that every effort should be made toprevent any form of racial bias from enteringinto judicial proceedings which might result inadversely affecting the administration of justiceon the basis of equality and non-discrimination. Consequently, the Committeerecommends that in criminal cases like the oneit has examined, due attention be given to theimpartiality of juries, in line with the principlesunderlying article 5 (a) of the Convention.


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Opinion

1. The author of the communication (dated 6December 1991) is L.K., a Moroccan citizencurrently residing in Utrecht, the Netherlands.He claims to be a victim of violations by theNetherlands of articles 2, paragraph (1) (d),4 litera(c), 5 litera(d) (i) and litera(e) (iii), and6 of the International Convention on the

Elimination of All Forms of RacialDiscrimination. The author is represented bycounsel.

The facts as found by the Committee

2.1 On 9 August 1989, the author, who ispartially disabled, visited a house for which alease had been offered to him and his family,in the Nicolaes Ruychaverstraat, a street withmunicipal subsidized housing in Utrecht. Hewas accompanied by a friend, A.B. When theyarrived, some 20 people had gathered outside

the house. During the visit, the author heardseveral of them both say and shout: No moreforeigners. Others intimated to him that if hewere to accept the house, they would set fireto it and damage his car. The author and A.B.then returned to the Municipal Housing Officeand asked the official responsible for the file toaccompany them to the street. There, severallocal inhabitants told the official that they couldnot accept the author as their neighbour, dueto a presumed rule that no more than 5 percent of the streets inhabitants should be

foreigners. Told that no such rule existed,street residents drafted a petition, which notedthat the author could not be accepted andrecommended that another house be allocatedto his family.

2.2 On the same day, the author filed acomplaint with the municipal police of Utrecht,on the ground that he had been the victim ofracial discrimination under article 137 (literae

(c) and (d)) of the Criminal Code (Wetboek vanStrafrecht). The complaint was directedagainst all those who had signed the petitionand those who had gathered outside thehouse. He submits that initially, the policeofficer refused to register the complaint, andthat it took mediation by a local anti-discrimination group before the police agreedto prepare a report.

2.3 The State partys version of the factscoincides to a large extent with that given bythe author, with some differences. According

to the State party, the author visited the houseallocated to him by the Municipality of Utrechttwice, once on 8 August 1989, together with anofficial of the Utrecht Municipal HousingDepartment, and again on 9 August 1989 witha friend. During the first visit, the official starteda conversation with a local resident, a woman,who objected to the author as a future tenantand neighbour. During the conversation,several other residents approached and maderemarks such as Weve got enough foreignersin this street and They wave knives aboutand you dont even feel safe in your own

Submitted by: L.K.(represented by counsel).Alleged victim: The petitioner.State party: Netherlands.Date of adoption of Opinion:16 March 1993.Subject matter:Protests against the authors settling into a neighbourhood; access toeffective mechanisms of protection; effective investigation; legal aid; unduly delay oncourt proceedings.Procedural issues: NoneSubstantive issues:Right to an effective remedy against acts of racial discrimination;right to an effective investigation; State parties are required to prohibit and bring toan end, by all appropriate means, racial discrimination; prohibition of disseminatingideas based on racial superiority or hatred, incitement to racial discrimination, as wellas all acts of violence or incitement to such acts against any race or group ofpersons; right to freedom of movement and residence within the border of the State.Articles of the Convention:2 (1) (d), 4 (a) and (c), 5 (d) (i) and (iii), and 6.Finding: Violation (arts. 4 (a) and 6).

* At his request, the name of the author is not disclosed.


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street. While the author was no longer presentwhen these remarks were made, the HousingDepartment official was told that the housewould be set on fire as soon as the priortenants lease had expired. As to the secondvisit, it is submitted that when the authorarrived at the house with a friend. A.B., a

group of local residents had already gatheredto protest against the potential arrival ofanother foreigner. When the author remainedreluctant to reject the Housing Departmentsoffer, the residents collected signatures on apetition. Signed by a total of 28 local residents,it bore the inscription Not accepted becauseof poverty? Another house for the familyplease?, and was forwarded to the HousingDepartment official.

2.4 In response to the complaint of 9 August1989, the police prepared a report on the

incident (Proces-Verbal No. 4239/89) on 25September 1989; according to the State party,17 out of the 28 residents who had signed thepetition had been questioned by the police,and 11 could not be contacted before thepolice report was finalized.

2.5 In the meantime, the authors lawyer hadapprised the prosecutor at the District Court ofUtrecht of the matter and requested access toall the documents in the file. On 2 October1989, the prosecutor forwarded thesedocuments, but on 23 November 1989 heinformed the author that the matter had not

been registered as a criminal case with hisoffice, because it was not certain that acriminal offence had taken place. On4 January 1990, therefore, counsel requestedthe Court of Appeal of Amsterdam(Gerechtshof) to order the prosecution of thegroup of residents of the NicolaesRuychaverstraat in Utrecht for racialdiscrimination, pursuant to article 12 of theCode of Criminal Procedure.

2.6 Counsel submits that after severalmonths, he was informed that the Registry of

the Court of Appeal had indeed received thecase file on 15 January 1990. On anunspecified date but shortly thereafter, theProsecutor-General at the Court of Appeal hadrequested further information from the DistrictCourt Prosecutor, which was supplied rapidly.However, it was not until 10 April 1991 thatcounsel was able to consult the supplementaryinformation, although he had sought to obtainit on several occasions between 15 February1990 and 15 February 1991. It was only afterhe threatened to apply for an immediatejudgement in tort proceedings against the

prosecutor at the Court of Appeal that the casewas put on the Court agenda for 10 April 1991.On 5 March 1991, the Prosecutor-General atthe Court of Appeal asked the Court to declarethe complaint unfounded or to refuse to hear iton public interest grounds.

2.7 Before the Court of Appeal, it transpiredthat only two of the streets inhabitants hadactually been summoned to appear; they didnot appear personally but were represented.By judgement of 10 June 1991, the Court ofAppeal dismissed the authors request. It heldinter alia that the petition was not a documentof deliberately insulting nature, nor a documentthat was inciting to racial discrimination withinthe meaning of article 137, literae (c) and (e),of the Criminal Code. In this context, the Courtof Appeal held that the heading to thepetitionwhich, taking into account

statements made during the hearing and to thepolice, should be interpreted as meaning Notaccepted because of a fight? Another housefor the family please?could not beconsidered to be insulting or as an incitementto racial discrimination, however regrettableand undesirable it might have been.

2.8 Under article 12 of the Code of CriminalProcedure, counsel requested the Prosecutor-Genera

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