Article 2 International Convention on the Elimination of All Forms of Racial Discrimination (CERD):
1. States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end:
(d) Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization;
Three discriminatory remarks subject to fines: is the Dutch State finally taking its obligations under Article 2(1)d of the Convention on the Elimination of Racial Discrimination seriously?
In November 2014, Dutch national team midfielder Leroy Fer posted a 'selfie' taken by his teammate Memphis Depay on Instagram and Twitter. This photo, displaying Fer, Depay and several other players of the national team, was reposted on the Facebook page of a major football website. This post subsequently received a host of negative and racist reactions on Facebook. Several comments compared the players to apes and slaves, as well as to ‘Zwarte Piet’ (Black Pete), the hotly-debated central figure of the Dutch Saint-Nicholas festivities.
The discriminatory comments drew a lot of media attention and caused indignant reactions from Leroy Fer and several other players of the Dutch national football team. These players, as well as the Dutch football association KNVB, strongly condemned the discriminatory reactions and called upon the Dutch Public Prosecution Service to take action and punish those who had placed a discriminatory comment about the picture.
The Public Prosecution Service rapidly announced the start of an investigation into the matter, which apparently took several months. In the end, three persons who placed discriminatory remarks were identified and interviewed by the police. The Public Prosecution Service recently announced that these three comments were found to be punishable under Dutch criminal law, and that the suspects had been offered the possibility of settling their case by paying a € 360 fine. If they choose to refuse this settlement offer they must appear before a court of justice. The Public Prosecution Service did not announce which comments were held to be discriminatory in its view, but it is clear that a great many of them went unpunished as only three persons were prosecuted.
The fines were welcomed by Leroy Fer, saying that they are “a clear signal to everybody”, and by national team captain Robin van Persie, who stated that “colour should not matter, neither in the national team nor in ‘normal’ life.” It is not known whether the suspects have agreed to pay the fine.
The provisions of the Dutch Criminal Code that criminalise discriminatory hate speech and the insulting of groups because of their race (amongst other grounds) were adopted in reaction to the ratification by Dutch Parliament of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) in 1971. However, these provisions are very rarely applied, and the sanctions that are possible on the basis of these provisions, such as fines, are consequently hardly ever imposed. The present case drew a lot of media attention because it involved several famous football players, which may explain why it forms an exception to the larger picture that many discriminatory remarks go unpunished in the Netherlands. Regardless of the positive result, the case also shows that the threshold for the Public Prosecution Service to start a prosecution remains (too) high, as only three remarks – out of a long string of racist comments – were found to be sufficiently discriminatory to deserve a fine in the eyes of the Service.
On the one hand, the racist reactions on the ‘selfie’ show that the public climate concerning racial relations is currently very tense in the Netherlands. This might partially be explained by the heated debate on ‘Zwarte Piet’ (Black Pete) and his role in the December 5 Saint-Nicholas feast which raged throughout the country at the time the ‘selfie’ was posted online. On the other hand, the case shows that discriminatory remarks, be in it the form of supposedly ‘funny’ Facebook comments or the form of remarks made by Geert Wilders in the course of political debate, are found to be unacceptable by an increasingly bigger part of the Dutch population. People are willing to file complaints about such remarks on more and more frequent basis, and indeed sometimes perpetrators are prosecuted and fined.
The question remains whether the Dutch government (from which the Public Prosecution Service forms a part), is meeting its obligation under Article 2 CERD to effectively put an end to racial discrimination.
(* Many thanks to my student assistant Paul Post, who laid the basis for this blog with his ‘flash report’ about this development for the EU Network of Legal Experts in the Field of Non-Discrimination.)