Submitted by: E.I.F. (represented by counsel)
Alleged victim: The author
State party concerned: The Netherlands
Date of communication: 4 May 1998 (initial submission)
The Committee on the Elimination of Racial Discrimination,
established under article 8 of the International Convention on the
Elimination of All Forms of Racial Discrimination,
Meeting on 21 March 2001,
Having concluded its consideration of communication
No. 15/1999, submitted to the Committee under article 14 of the International
Convention on the Elimination of All Forms of Racial Discrimination,
Having taken into consideration all written information
made available to it by the Author and the State party,
Bearing in mind rule 95 of its rules of procedure
requiring it to formulate its opinion On the communication before
it,
Adopts the following:
Opinion
1. The author of the communication is E.I.F., a citizen of the Netherlands
of Surinamese origin. His communication was first submitted to the
Committee by his counsel on 4 May 1998. On 8 July 1999 counsel provided
additional information.
The facts as submitted by the author
2.1 The author claims to have been discharged from the
Netherlands Police Academy (NPA) on racial grounds and mentions a
number of instances of discrimination that allegedly took place during
his training at the Academy between 1991 and 1993, such as the following:
He used to be told repeatedly that he was a bad learner, that his
Dutch was insufficient and that he should pattern himself on the
white male police officers;
When a white student was late for his classes it was
not registered. If the author arrived slightly late, it was registered,
resulting in a permanent minus point;
His sports teacher made him perform an exercise. When
it appeared that he did not perform well enough the teacher told
the group: "The muscles needed for performing this exercise
well are poorly developed in apes";
As part of a sports test, a distance had to be covered
within a certain time. When the author had run the distance it appeared
that the sports teacher had forgotten to register the time. White
students did not experience such problems;
The Academy received an invitation to participate
in a football tournament. As a committee member of the sports group,
the author had to decide on the composition of the team. One of
the lecturers told him: "See to it that the academy is well
represented, so don't select too many blacks";
On 9 July 1993 the principal of the Academy informed the author in
writing that he would like to have a discussion with him in the course
of August 1993 about his study results. The author was to be informed
during that meeting that he had to finish his examinations before
the end of October 1993. The author, however, was in Suriname from
8 July to 26 August 1993. Therefore, he could not know anything about
the "agreement" with respect to the deadline of October
1993. As a result, the author did not finish his examinations before
the end of October 1993. The Academy later argued that he had to leave
because he had not taken his examinations.
2.2 The author further alleges that he was dismissed
from the Academy in 1994 after a group of students led by him made
a public statement in which they complained about the situation of
foreign students. That statement, as well as pressure from the media,
led to the appointment by the Minister of the Interior of the Boekraad
Committee, whose mandate was to examine the complaints about the Police
Academy. According to the author, the Committee recognized in its
final report that the Academy had committed irregularities which had
resulted in the discourteous treatment of a certain group of students
and addressed a number of recommendations to the Minister.
2.3 The author brought his case before the Administrative
Law Division of the Amsterdam Court, which in its judgement of 3 April
1996 annulled the dismissal and recognized that the author had been
subjected to discrimination. However, by decision of 6 November 1997
the Central Appeals Court for the public service and social security
matters in Utrecht ruled that the decision should stand.
The complaint
3. Counsel claims that the facts, as described above,
amount to a violation by the State party of articles 2, 5, 6 and 7
of the Convention. He argues that the acts of discrimination to which
the author was subjected resulted in great material and moral damage,
for which he should be compensated.
Observations submitted by the State party
4.1 The State party reports that the recruitment of
ethnic minority students to the NPA was originally part of the Police
and Ethnic Minorities Project, which was followed by the 1988 Police
and Ethnic Minorities Affirmative Action Plan. The Police and Ethnic
Minorities Organization was established in 1991 and carries out a
variety of projects relating to recruitment and selection, training,
career guidance and research. In 1991, NPA teaching staff were offered
the opportunity to attend a training course to enhance their expertise
and to learn how to approach the cultures of ethnic minorities. On
11 March 1992, the Brekelmans Committee was appointed to analyse and
make recommendations on the integration of ethnic minority students
and their ability to adjust. The Committee submitted its final recommendations
to the Director of the Police Department on 18 July 1992.
4.2 On 14 December 1993, 21 ethnic minority students
attending the NPA, including the author, wrote a letter with the heading
"A cry for immediate help" which they sent to the Director-General
for Public Order and Safety, the National Police Selection and Training
Institute (LSOP) and several trade unions. In the letter the students
complained about the discriminatory attitudes to which they had been
subjected at the NPA. A different group of ethnic minority students
wrote a letter distancing themselves from the content of the letter
of 14 December 1993. Both letters prompted the Ministers of the Interior
and Justice, in consultation with the LSOP to, inter alia,
initiate an inquiry which would focus on the following questions:
(a) Whether and to what extent ethnic minority students were treated
improperly at the NPA, and if so, what action had been taken against
it; (b) whether the findings were such as to suggest that measures
should be taken, and if so, what should be done to prevent any recurrence
in the future; (c) whether ethnic minority students were expected
to perform any tasks which they could not reasonably be expected to
perform.
4.3 The inquiry was conducted by a three-member Committee known as
the Boekraad Committee, which concluded that there was no systematic
institutional discrimination directed against ethnic minority students
within the NPA. However, it also concluded that the NPA did not as
yet provide truly multicultural education and that the policy intended
to achieve this aim was flawed. The Committee made 14 recommendations
intended to put in place a genuinely multicultural education. Recommendation
4 envisaged the appointment of a special committee of external experts
who would examine the individual cases of a number of ethnic minority
students whose studies had stagnated. The Committee on the Progress
of Ethnic Minority Students (SAS) was set up to this effect.
4.4 The SAS Committee reported its findings to the Minister
of the Interior on 30 August 1995, making recommendations on the cases
of the nine students it had looked into. Out of them, three eventually
completed the course, one would graduate within that year, two were
appointed elsewhere through an outplacement procedure, two availed
themselves of a benefit scheme and one was involved in legal proceedings
concerning the question of whether or not he had suffered any loss
of income because of his failure to complete the course.
4.5 The author was born in Suriname and has lived in
the Netherlands for many years. Prior to his studies at the NPA, he
had attended a course of higher professional education at the School
of Social Work, after which he worked as a teacher. He entered the
NPA on 20 August 1991, having passed through a selection procedure
that deviated only in a few minor details from the regular entry process
for students of Dutch origin. His admission meant that, at the same
time as being a student he was a public servant employed on a temporary
contract by the Minister of the Interior.
4.6 On 6 July 1992, at the end of his first year at
the NPA, the author was informed by the secretary of the Examining
Board that he would not be admitted to the second year, as his results
were unsatisfactory. Indeed, his results were such that he could have
been expelled from the NPA. However, he was given the opportunity
to repeat the first year. At that point, the author did not complain
about any discriminatory attitudes within the NPA, either regarding
himself or his fellow students. At the end of the second year, the
author's results were again so poor that the teaching staff designated
him a "discussion case". As he had been absent (due to illness)
and had therefore not taken all the necessary examinations, the NPA
decided to give him another opportunity to sit them. To effect this
decision, the Director of the NPA invited the author to a meeting
in order to discuss and evaluate his results.
4.7 At the meeting, held on 6 September 1993, the Director
informed the author that he had until the end of October 1993 to sit
the remaining examinations. The author again said nothing about having
suffered from discrimination. By 16 September 1993 a draft timetable
had been prepared and the author was invited to discuss it. However,
he refused to do so. He was subsequently formally invited to sit the
examinations. In response he called in sick and did not turn up on
the examination dates.
4.8 On 24 September 1993, there was a meeting of the
NPA medico-social team where it was noted that the author's teachers
considered him perfectly capable of achieving good results, but that
there were doubts about the reasons he had given for his absence.
No reference was made to his colour or ethnic background.
4.9 In December 1993, the Examining Board decided to
propose to the Director of the NPA that the author's enrolment be
terminated as of 1 March 1994. The Director gave the author notice
of his dismissal on 26 January 1994, to which the author's representative
replied by letters of 18 February 1994 and 24 March 1994. Despite
the representative's request that the author be given another chance,
he was released from service as of 1 October 1994.
4.10 The author lodged an objection to his dismissal
on 5 August 1994. He alleged that his poor grades and frequent absence
were merely a consequence of the way he had been treated by the teaching
staff at the NPA. He also maintained that the Minister had wrongly
overlooked the above-mentioned recommendation 4 of the Boekraad Committee
in his case. At the hearing, held on 26 September 1994 as part of
the objection procedure, the author presented examples intended to
demonstrate the bias he had encountered from teachers:
The fact that the pass mark for "training sessions" was
not allowed to count for the following year;
The inclusion of the results achieved at the afternoon
session in the grade for Statistics, in spite of an alleged agreement
to the contrary;
The fact that the second opinion on the author's Psychology
examination given by a member of staff of the Free University of
Amsterdam was ignored;
The fact that other students were allegedly later
given pass marks after discussion of their case, whereas the author
was not;
The fact that Law graduates had actually failed the
Statistics examination, but were nevertheless allegedly given pass
marks.
However, these examples had nothing to do with discrimination.
4.11 On 1 December 1994, the Minister declared the author's
objection unfounded. In reaching this decision he took into consideration
the fact that the author had not been promised, as he claimed, that
no steps affecting his legal status would be taken pending the outcome
of the Boekraad Committee's inquiry. The Minister also noted that
in anticipation of the Committee's recommendations, the dismissal
was decided upon with the greatest possible care. In the Minister's
view, the dismissal was due to proven unsuitability for the course,
as reflected by the author's poor grades, and the author had not satisfactorily
established the slightest causal relationship between his poor grades
and the discrimination he claimed to have suffered.
4.12 The author appealed the decision to the Amsterdam
District Court, which declared the appeal well-founded on the basis
that the Minister should have incorporated the Boekraad Committee's
findings in the decision-making process. The court also held that
in appointing the SAS Committee, the Minister had implicitly taken
responsibility for the problems experienced by ethnic minority students.
Inasmuch as the other ethnic minority students had been given an opportunity
for an individual assessment by the SAS Committee, whereas this had
not happened in the author's case, the court ruled that the Minister
had acted in a manner incompatible with the principle of equality.
4.13 On 27 February 1997, the Minister appealed the
district court's judgement to the Central Appeals Tribunal. The Minister
held, inter alia, that the district court had wrongly assumed
that the author was in the same position as the nine ethnic minority
students whose cases had been studied in the SAS Committee's inquiry.
These nine students had all had their previous schooling in a country
outside the Kingdom and had not been in the Netherlands for very long
when they started their studies at the NPA. They were hence not yet
fully integrated into Dutch society. These students had followed a
separate entry procedure developed specially for "authentic"
ethnic minority students, namely the PPA selection procedure set up
under the Affirmative Action Plan. The author did not belong to this
category. The selection procedure applied in his case deviated from
the regular procedure for students of Dutch origin only in a few minor
details. Therefore, there was no reason to subject the author to individual
assessment by the SAS Committee.
4.14 The Central Appeals Tribunal declared the Minister's appeal well-founded
and quashed the judgement of the district court. It held that neither
the Boekraad Committee's report nor the SAS Committee's report provided
any grounds for concluding that the author's poor performance was
due to discrimination. It also held that the author's situation differed
essentially from that of the students who had only lived in the Netherlands
for a short time before starting their studies, who had a poor command
of the Dutch language and were not yet fully integrated into Dutch
society. There was therefore no question of any violation of the requirement
of due care and/or the principle of equality.
4.15 The State party disputes the author's contention
that discrimination and racism are institutional and systematic practices
within the police service and that the Minister does not take sufficient
appropriate measures to counter them.
4.16 The author maintains, in particular, that the television
news programme Netwerk highlighted his situation and the institutional
nature of discrimination within the police service. However, he completely
fails to make clear what the drift of the documentary in question
was and what conclusions should be drawn from it. The State party
therefore considers this reference irrelevant to the discussion at
hand.
4.17 The author wrongly maintains that the SAS Committee
has the appearance of bias as it was set up by the Minister of the
Interior and the NPA. The SAS Committee consisted of six independent
individuals and neither the Government nor the NPA had any influence
on their work.
4.18 The Government saw the allegations of discrimination
on the basis of ethnic origin by the 21 ethnic minority students as
grounds for setting up an independent inquiry into the existence of
any discrimination. The complaints were investigated and recommendations
were made to prevent discrimination in the future. All those recommendations
were followed. On the basis of these facts, it must be concluded that
the Government acted in accordance with article 2, paragraph 1 (b)
and article 7 of the Convention.
4.19 The author was not selected for an individual investigation
by the SAS Committee. One important reason for this was that he had
already been dismissed when the Committee started its inquiry. But
even if he had still been enrolled at the NPA at that time he would
still not have been eligible for selection as there were no indications
whatsoever that his poor results had anything to do with his ethnic
background. Notwithstanding that, the Minister of the Interior did
investigate the author's claim that his poor grades were attributable
to discrimination on the part of the teachers during the decision-making
process surrounding his dismissal, up to and including the hearing
by the Central Appeals Tribunal.
4.20 The author does not substantiate his statement that he was dismissed
as the initiator of the "A cry for immediate help" and that
the Central Appeals Tribunal gave judgement on the basis of incorrect
facts. As for his claim that the Minister did not take the Boekraad
Committee's findings into account when making his decision on the
author's objection, the State party emphasizes that the Minister did
indeed incorporate those findings in the review of his initial decision,
but that they did not give him any reason to reverse that decision.
4.21 On the basis of the above, the State party states that the Government
complied with its obligation under article 5 (a) and article 6 of
the Convention to ensure that the victims of racial discrimination
have effective legal protection and where necessary receive compensation
for any damage suffered as a result of such discrimination. The State
party also concludes that it did not commit any violation of the Convention
in relation to the author.
Counsel's comments
5.1 Counsel notes that there are a number of inaccuracies
in the State party's submission, (1) which show that his case
has not been looked into very carefully. For instance, prior to his
studies at the NPA the author lived in the Netherlands for six years
and not "many years", as the State party indicates. Moreover,
the author did not study at the School of Social Work; he studied
medicine at the University of Amsterdam from 1987 to 1990 and never
worked as a teacher.
5.2 Counsel claims that being part of the group of ethnic
minority NPA students who did not need extra study facilities (Dutch
lessons, for instance) did not protect the author against racial discrimination.
The exclusionary mechanisms at the NPA remained intact despite the
fact that the teaching staff were given the opportunity to attend
a training course in order to learn how to deal with students with
different cultural backgrounds.
5.3 The letter in response to the "Cry for immediate
help" did not come from other ethnic minority students (2)
but from white students, and it transpired from it that incidents
which could be described as racist had taken place. The white students
called for dialogue in order to find a solution.
5.4 Although the Boekraad Committee concluded that there
was no institutional discrimination at the NPA it did state that discrimination
occurred, and recommended that the NPA institute a specific anti-discrimination
code.
5.5 The author complains that the SAS Committee never
looked into his case, despite the fact that he was one of the signatories
of the "Cry for immediate help". He does not understand
why the SAS Committee only investigated the cases of 9 students out
of the 21 signatories of the letter and expresses doubts about the
independence of the SAS Committee with respect to the Ministry of
the Interior. He says that the Secretary of the Committee was a staff
member of the Police Directorate of the Ministry of the Interior and
that the Chairman had been a member of the Boekraad Committee. The
author claims that an independent investigation should have looked
into all aspects of the problem and not just the case of a few individuals.
He also expresses doubts about the independence of the NPA medico-social
team, whose members were all affiliated with the NPA. The team did
not fully believe him when he explained the reasons for his absence
from the Academy. In fact, everything he said was called into question.
Further evidence of discrimination is the fact that the dismissal
from the NPA was communicated to him with only two days' notice, instead
of three months' as required by law. The NPA only rectified that when
he threatened legal action.
5.6 The author does not share the State party's view
that the incidents he referred to at the hearing held on 26 September
1994 do not constitute discrimination. (3) Those incidents
should have been investigated by the SAS Committee, as had been recommended
by the Boekraad Committee. The author still does not share the State
party's opinion that the Boekraad recommendations did not apply to
him and draws the Committee's attention to the fact that the Amsterdam
District Court fully agreed with him. Furthermore, the State party
seems to imply that, because the author has a good command of the
Dutch language, he could not have been subjected to discrimination.
He notes that, despite this ability, he still has a dark skin colour.
5.7 The author strongly objects to the State party's
argument that the reason for the dismissal was his poor results and
asserts that his poor results were the direct consequence of the psychological
situation in which he found himself for having been subjected to discrimination.
The State party cannot deny the fact that the number of students belonging
to ethnic minorities who left the police force was higher than the
number of those who joined it and that this was due to institutional
discrimination.
5.8 Finally, the author notes that in its observations
the State party does not deny that he actually experienced the incidents
referred to in paragraph 2.1 above. However, he disagrees with the
State party's conclusion that those incidents had been taken into
consideration when the decision to dismiss him was adopted. Since
the incidents in question were the origin of his poor results, his
case should have been carefully investigated and the recommendations
of the Boekraad Committee implemented.
Issues and proceedings before the Committee
6.1 Before considering any claims contained in a communication,
the Committee on the Elimination of Racial Discrimination must decide,
pursuant to article 14, paragraph 7 (a) of the Convention and rules
86 and 91 of its rules of procedure, whether or not the communication
is admissible. The Committee notes that the State party does not raise
objections to the admissibility of the communication and that it has
formulated detailed observations in respect of the substance of the
matter. The Committee considers that all requirements set out in the
above-mentioned provisions have been met. It therefore decides that
the communication is admissible.
6.2 With respect to the merits of the communication,
the Committee considers that some of the allegations submitted by
the author and summarized in paragraph 2.1 above have racial connotations
of a serious nature. However, they did not constitute the subject
of the claims brought before the Amsterdam District Court and the
Central Appeals Tribunal, which dealt mainly with the question of
the dismissal from the Police Academy. Furthermore, it does not appear
from the information received by the Committee that the decision to
terminate the author's participation in the Police Academy was the
result of discrimination on racial grounds. Nor has any evidence been
submitted to substantiate the claim that his poor academic results
were related to the incidents referred to in paragraph 2.1.
7. The Committee on the Elimination of Racial Discrimination, acting
under article 14, paragraph 7 (a) of the International Convention
on the Elimination of All Forms of Racial Discrimination, is of the
opinion that the facts, as submitted, do not disclose a violation
of the Convention by the State party.
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Notes
1. See paragraph 4.5 above.
2. See paragraph 4.2 above.
3. See paragraph 4.10 above.