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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, [FN1] 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.
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[FN1] See paragraph 4.5 above.
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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 [FN2] 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.
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[FN2] See paragraph 4.2 above.
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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. [FN3] 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.
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[FN3] See paragraph 4.10 above.
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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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