European Court of Human Rights

 
APPLICATIONS Nos. 8348/78 and 8406/78 (joined) Glimmerveen and Hagenbeek v/the The Netherlands DECISION of 11 October 1979 on the admissibility of the applications

Article 10, paragraph 2 of the Convention : The duties and responsibilities which accompany the exercise of the right to freedom of expression are reflected in particular by Article 17 of the Convention.

Article 17 of the Convention : Article 17 covers essentially those rights which would facilitate the attempt to derive therefrom a right to engage in activities aimed at the destruction of the rights and freedoms set forth in the Convention.

In the present case, Article 17 does not permit the use of Article 10 to spread ideas which are racially discriminatory nor of Article 3 of the First Protocol to support a candidature=founded on a platform of racial discrimination.

Article 3 of the First Protocol : Does this provision apply to municipal elections in the Netherlands?

THE FACTS

1. The first applicant, Mr. Glimmerveen, was born in 1928. He is of Dutch nationality, resident in The Hague, and is an accountant by profession. The second applicant, Mr. Hagenbeek, was born in 1946. He is of Dutch nationality, resident in Huizen, and is a waiter by profession. Both applicants are represented by Mr W .J. Welfort, a lawyer practising in The Hague.

The present applications relate to different sets of facts, A and B. Part A is submitted by the first applicant only.

PART A

2. In 1974 the applicant became president of the 'Nederlandse Volks Unie' (N.V.U.) a political party created in 1971, whose basic principles are, as the applicant describes them, a world conception which grants each nation a proper state, as well as the belief that the general interest of a State is best served by an ethnical homogeneous population and not by racial mixing.
3. On 29 March 1977 he was convicted and sentenced by the Regional Court of Rotterdam to a two-week term for having possessed, with a view to distribution on 30 August 1976 in Schiedam, leaflets which the court found to be inciting to racial discrimination (Article 137 (e) of the Dutch Criminal Code. ^[1]) The leaflets were confiscated.
4. The applicant appealed against his conviction and sentence to the Court of Appeal of The Hague. The Court pointed in particular to the combined use of words such as: 'white Dutch people (in the title), white fellow citizens, our white people'^[2], and to the following passages:

"The truth is that the major part of our population since a long time has had enough of the presence in our country of hundreds of thousands of Surinamers, Turks and other so-called guest workers, who, moreover, are not at all needed here and that the authorities as servants of our people merely have to see to it that these undesired aliens leave our country as soon as possible. As soon as the Nederlandse Volks Unie will have gained political power in our country, it will put order into business and, to begin with will remove all Surinamers, Turks and other so-called guest workers from the Netherlands..."^[3]

The Court considered the above passages to constitute incitement to discrimination on the basis of race, it being understood that the notion of race equally included an ethnic group.

The Court recalled that the major part of the 'Surinamers' residing in the Netherlands in 1976 were of Dutch nationality and that the removal of all Surinamers without any distinction as undesired aliens was to be considered a serious form of racial discrimination. It held moreover that the contents of the leaflet taken as a whole, could not be considered as factual information. The Court of Appeal of The Hague confirmed on 16 August 1977 the applicant's conviction.

5. The applicant lodged a plea of nullity with the Supreme Court in The Hague. He submitted, inter alia, (a) that Article 137 (e) of the Dutch Penal Code had been wrongly applied, since the Nederlandse Volks Unie envisaged the realisation of its aims only by 'lawful means', (b) that Article 10 of the European Convention on Human Rights had been disregarded as well as (c) Article 5 of the Dutch Constitution which provides that 'every Dutch citizen is eligible as a civil servant'.

The Supreme Court rejected the plea holding the above arguments to be (a) irrelevant, (b) unfounded in the light of paragraph 2 of Article 10, and (c) unsubstantiated. The decision of the Supreme Court is dated 14 March 1978.

PART B is submitted by both applicants:

6. On 18 April 1978 the Central Voting Boards for the municipal council elections of both Amsterdam and The Hague received a list of candidates which bore no heading and on which both applicants appeared as candidates.
7. The Central Voting Board for the election of the municipal council of Amsterdam, on 21 April 1978, declared the list invalid. The grounds for this decision were as follows:

(a) On the list appeared as first candidate, Mr. M. G. Glimmerveen and as sixth candidate Mr. J. P. J. C. Hagenbeek, while the list was submitted by a third person;

(b) The persons mentioned under (a) were, as appeared from a decision of the Regional Court of Amsterdam of 8 March 1978, the president, vice-president and secretary of the Nederlandse Volks Unie.

(c) The members of the governing board of the Nederlandse Volks Unie mentioned under (b) had, according to the above decision, in no way dissociated themselves from opinions and manifestations of the Nederlandse Volks Unie in so far as race, colour, origin, national or ethnic provenance of certain groups are concerned.

(d) The candidates mentioned under (a) shared the views of the Nederlandse Volks Unie, and this also applied to the remaining candidates on the list, who had declared themselves ready to be listed with the members of the governing board of the Nederlandse Volks Unie, mentioned under (a) on one single list.

(e) The list of candidates was therefore to be seen as a list of candidates of the Nederlandse Volks Unie.

(f) The Nederlandse Volks Unie was, as resulted from the decision mentioned under (b), a prohibited association ^[4].

(g) The Dutch legal order did not permit that the Central Voting Board declare valid a list of candidates that must be seen as a list of candidates of the Nederlandse Volks Unie.

One member of the Central Voting Board expressed a dissenting opinion. In his view, the Dutch Elections Act did not contain any grounds for a decision to declare a list invalid on these grounds^[5] and moreover the candidates thus were deprived of their right to stand for elections, a decision which could only be taken by a magistrate.

8. The Central Voting Board of The Hague on 24 April 1978 equally declared the list invalid. It did so on the following grounds:

The first and the last candidate on the list were the president and vice-president of a prohibited association, the Nederlandse Volks Unie. The prohibited character of the association resulted from a decision of the Amsterdam Regional Court. On the occasion of an enquiry made by that Court the leaders of the association had declared that it firmly intended to continue its political activities, even if it had to be by other means than those so far employed. At present, lists were presented in Amsterdam, Rotterdam and The Hague on which Mr. Glimmerveen and Mr. Hagenbeek, being the president and vice-president of the prohibited association, were nominated. In Amsterdam, a third person who is secretary of the association was also listed.

In 1974 Mr. Glimmerveen had presented himself as a candidate for the elections to The Hague's Municipal Council. He was then the only candidate of a list named 'Nederlandse Volks Unie'.

Earlier this year (1978) the registration in Amsterdam and Rotterdam of the name of a political group as 'lijst Glimmerveen' had been cancelled in appeal proceedings^[6] by the 'Kiesraad' (Election Board) in view of the fact that the political aims behind the 'lijst Glimmerveen' could be assumed to be identical with those of the prohibited association 'Nederlandse Volks Unie'.

In view of the above-mentioned reasons the Central Voting Board of The Hague concluded that the presentation of the 'lijst Glimmerveen' in the communities of Amsterdam, Rotterdam and The Hague could reasonably be considered as a disguised act of the prohibited association. It was true that the Elections Act, and in particular its provision H5, did not provide such a ground for rejecting a list. However, it was clear that the Central Voting Board had to observe other existing legal provisions and in particular those relating to prohibited associations. Article 162 of the Code of Criminal Procedure provided that public officers who, in the exercise of their duties, obtain knowledge of a criminal act with the detection of which they are not charged, are obliged to denounce these acts. As the activities of a prohibited association are penalised by Article 140 (2) of the Dutch Penal Code, the Central Voting Board would promote prohibited activities by accepting the list.

Two members of the Board were of the opinion that it was not competent to refuse the list, as the submission of the list did not have the character of a request on which the Voting Board would have to decide. They would therefore merely have to denounce the acts, as was required of them by Article 162 of the Code of Criminal Procedure. They admitted that reasons relating to public order and/or good morals were prevailing, but considered that they fell outside the scope of Article H5 of the Elections Act and that Article G3 (3) of the same Act^[7] was not applicable here by analogy.

9. Two other candidates listed on the same list appealed against the decision of the Amsterdam Central Voting Office of 21 April 1978 to the provincial Board of Northern Holland. This remedy is provided in Article H7 of the Elections Act. The provincial Board of Northern Holland rejected the appeal on 28 April 1978 as being unfounded.

It considered, inter alia, that it resulted from the decision of the Amsterdam Regional Court of 8 March 1978 ( cf. footnote 4)

•    that Mr. Glimmerveen and Mr. Hagenbeek were president and vice-president of the association;

•    that the court, in the above-mentioned decision had qualified the Nederlandse Volks Unie as a prohibited association on the basis of the requirements, in the Netherlands, of public order and good morals;

•    that moreover the above-mentioned candidates, according to the Amsterdam Court's decision, had in no way dissociated themselves from the judgments and manifestations of the Nederlandse Volks Unie;

•    that the Amsterdam Court considered that the aim of the group of people who wanted to participate in the Amsterdam Municipal Council elections could only be the same as those of the Nederlandse Volks Unie whose aims ran counter to public order;

•    that, in addition to the grounds mentioned in the Elections Act, higher unwritten legal principles applied which were rooted in the legal conscience of the Dutch People; and

•    that it was for these reasons that the Central Voting Board had rightly declared the list invalid.

10. The first applicant appealed against the decision of the Central Voting Board of The Hague to the Provincial Board of Southern Holland. The Provincial Board of Southern Holland dismissed the appeal on 2 May 1978 for the following reasons:

Article G3 (3) (a) of the Elections Act offered the possibility of rejecting a request from a political party or group to have a particular name or indication thereof, or both, inscribed in a register which is kept by the Central Voting Board with a view to the election of the members of the Municipal Council, if there were reasons, related to public order and good morals, to do so.

It would be curious if, on the basis of that provision, the registration of a name of a political party could be refused, whilst the list as such could not be declared invalid on analogous grounds. The Election Board, in April 1978 had rejected an appeal introduced by The Hague's section of the Nederlandse Volks Unie against a decision by the central voting board of The Hague refusing the registration of the Nederlandse Volks Unie or NVU considering that its aims were contrary to public order. It could not possibly have been the intention of the legislature to make it possible, on the one hand to reject a request for the registration of a particular party's name or indication thereof on the ground that it was incompatible with the concepts of public order, while, on the other hand, it would not be possible to declare invalid a list which functions as a cloak for a prohibited association.

Three members of the Provincial Board voted in favour of the above decision and two members against.

COMPLAINTS

11. The applicants consider that their right to freedom of thought, freedom of expression in general and freedom of expression in the context of elections in particular have been jeopardised. They thus consider Articles 9 and 10 of the European Convention to be violated by reason of the above facts.

In so far as the second part of the application is concerned, the applicants make the following additional complaint:

The decisions of the Provincial Boards of Northern Holland and Southern Holland have in fact deprived them of their right to stand for elections. According to Article 90 and Article 152 of the Dutch Constitution this decision may only be taken by a magistrate, which the said Boards were not.^[8]

They ask the Commission to intervene in order to guarantee to them the full enjoyment of the above fundamental rights.

THE LAW

The applicants complain that the Netherlands authorities, on the one hand by convicting them for having possessed with a view to distribution, leaflets considered to be inciting to racial discrimination, and on the other hand, by preventing them from participating in the municipal elections in Amsterdam and The Hague, have disregarded their basic and fundamental rights set forth in the Convention. The Commission considers that these complaints concern principally Article 10 of the Convention and Article 3 of Protocol No. 1.

As regards Article 10 of the Convention

Article 10 of the Convention provides:

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

The various measures challenged—the applicants' conviction and the decisions to declare invalid the electoral lists on which they appeared—were, and the Government did not deny it, interferences by the public authorities in the exercise of their freedom of expression which is guaranteed by paragraph (1) of the text quoted above.

The Commission recalls that the European Court of Human Rights in Handyside v. U.K., 7 has held that freedom of expression constitutes one of the essential foundations of a democratic society, one of the basic conditions for its progress and for the development of every man. It added: 'Subject to paragraph 2 of Article 10, it is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society".'

The Court also established in the above judgment that 'whoever exercises his freedom of expression undertakes "duties and responsibilities" the scope of which depends on his situation and the technical means he uses'.

The Commission is of the opinion that the duties and responsibilities referred to above find an even stronger expression in a more general provision, namely Article 17 of the Convention which reads as follows:

"Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention."

The general purpose of Article 17 is to prevent totalitarian groups from exploiting in their own interests the principles enunciated by the Convention. To achieve that purpose, it is not necessary to take away every one of the rights and freedoms guaranteed from persons found to be engaged in activities aimed at the destruction of any of those rights and freedoms. Article 17 covers essentially those rights which, if invoked, will facilitate the attempt to derive therefrom a right to engage personally in activities aimed at the destruction of any of the rights and freedoms set forth in the Convention.8

It is with the above consideration in mind that the Commission examined the applicants' complaints.

The leaflet which led to the applicants' conviction addresses itself in its heading to the 'white Dutch people'. It contains statements such as 'the major part of our population since a long time has had enough of the presence in our country of hundreds of thousands of Surinamers, Turks and other so-called guest workers, who moreover are not at all needed here, and

the authorities merely have to see to it that these undesired aliens leave our country as soon as possible'.

It further announces 'that the N.V.U. will continue its battle for the white people of the Netherlands until political power of [certain political parties] and other related parties will have been definitely broken. As soon as the Nederlandse Volks Unie will have gained political power in our country, it will put order into business and to begin with: (1) remove Surinamers, Turks and other so-called guest workers from the Netherlands...'.

Thus, the policy advocated by the applicants is inspired by the overall aim to remove all non-white people from the Netherlands' territory, in complete disregard of their nationality, time of residence, family ties, as well as social, economic, humanitarian or other considerations. The Commission considers that this policy is clearly containing elements of racial discrimination which is prohibited under the Convention and other international agreements.

Article 14 of the Convention provides that the enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as, inter alia, race or colour.

The Commission has held in the past that discrimination based on race could, in certain circumstances, of itself amount to degrading treatment within the meaning of Article 3 of the Convention.9

The Fourth Protocol to the Convention sets out the principle that nationals may not be expelled collectively or individually from the State of which they are nationals and that aliens cannot be expelled collectively. It is true that the Netherlands have not acceded to this Protocol, but nothing prevents them from adopting, autonomously or by reason of international obligations other than those derived from the Fourth Protocol, measures aimed at the respect of these rights.

Indeed, the Government have drawn the attention of the Commission in particular in the light of Article 60 of the Convention, to the Netherlands' international obligations under the International Convention on the Elimination of all Forms of Racial Discrimination of 1965, to which the Netherlands acceded in 1971.

The Netherlands' authorities, in allowing the applicants to proclaim freely and without penalty their ideas would certainly encourage the discrimination prohibited by the provisions of the European Convention on Human Rights referred to above and the above Convention of New York of 1965.

The Commission holds the view that the expression of the political ideas of the applicants clearly constitutes an activity within the meaning of Article 17 of the Convention.

The applicants are essentially seeking to use Article 10 to provide a basis under the Convention for a right to engage in these activities which are, as shown above, contrary to the text and spirit of the Convention and which right, if granted, would contribute to the destruction of the rights and freedoms referred to above.

Consequently, the Commission finds that the applicants cannot, by reason of the provisions of Article 17 of the Convention, rely on Article 10 of the Convention.

As regards Article 3 of the First Protocol

Article 3 of the First Protocol provides:

'The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.'

The Commission recalls that it has held in the past that Article 3 of the First Protocol guarantees in principle the right to vote and the right to stand as a candidate at the election of the legislative body. (decision on the admissibility of Application Nos. 6745/74 and 6746/74, W, X, Y and Z v. Belgium, Decisions and Reports 2, p. 110)

In the present case the question would however arise whether the Municipal Council, according to Dutch law, is invested with such normative power that it can be considered as a 'legislative body' within the meaning of that provision. (cf. Applications Nos. 6745/74 and 6746/74, Decisions and Reports 2, p. 40.)

However, the Commission does not find it necessary to determine the above question, as it considers that the applicants intended to participate in these elections and to avail themselves of the above right for a purpose which the Commission has just found to be unacceptable under Article 17 in relation to the complaints under Article 10 of the Convention.

It is true that the applicants did not intend to participate in the above elections on behalf of the Nederlandse Volks Unie. However, the Commission observes that the Amsterdam Regional Court had established that the political leaders of the Nederlandse Volks Unie had declared that they wished to pursue their aims and objectives even if it were not formally on behalf of that association. The Commission also notes that the Central Voting Board of The Hague assumed that the political aims behind the list presented by the applicants were identical to those of the Nederlandse Volks Unie and that the Central Voting Board of Amsterdam equally relied on the above finding of the Amsterdam Regional Court, according to which the applicants had no intention of dissociating themselves from the political platform of the Nederlandse Volks Unie. In this respect the applicants have not submitted any evidence to the contrary. Moreover the Commission would observe with reference to the reasoned decision of the various Netherlands authorities that the refusal of the list could not be characterised as an arbitrary act for any other reasons. The Commission therefore considers that, even assuming Article 3 of the First Protocol applies, the applicants cannot avail themselves of the right protected under that provision, having regard to Article 17 of the Convention.

In conclusion the Commission finds that the applicants cannot, by reason of the provisions of Article 17 of the Convention, rely either on Article 10 of the Convention or Article 3 of the First Protocol.

It follows that the application is incompatible with the provisions of the Convention within the meaning of Article 27 (2).

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Note 1   Art. 137 (e) of the Dutch Criminal Code prohibits, inter alia, the expression of views that may be offensive for a group of people by reason of their race, religion or other conviction or that incite to hatred against or discrimination of or violent behaviour towards people by reason of their race, religion or other conviction unless these views are expressed for the purpose of imparting information.    [Back]

Note 2   "blanke Nederlanders. blanke stadsgenoien, one blanke Nederlandse volk"    [Back]

Note 3   De waarheid is, dat het grootste deel van one volk al lang genoeg heefl van de aanwezigheid in ons land van honderdduizenden Surinamers, Turken en andere zogenaamde gastarbeiders, die hier bovendien helemaal niet nodig ziin en dal de overheid als dienares van ons volk maer heefl te zorgen dat deze ongewenste vreemdenngen zo sooedig mogeliik one land verlaten ; Zodra de N.V.U. de politleke macht in ans land heaft veroverd, zal zij orde op :aken slellen en om te beginnen : al Alle Surinamers, Turken en antlere zogenaamde gaslarbeiders uit Nederland verwijderen...    [Back]

Note 4   The above-mentioned decision was based on Arts. 15 and 16 of Chap. II of the Civil Code. The court, while qualifying the NVU as a prohibited association, rejected the public prosecutor's request to dissolve the association. The applicant's appeal against this decision was declared inadmissible by the Court of Appeal of Amsterdam on 30 June 1978, as the appeal was directed against the grounds of the decision and not against its operative parts.    [Back]

Note 5   The Dutch Elections Act of July 1951 sums up in its provision H5 the grounds on which a list may be declared invalid. These are essentially of a formal nature such as: date and hour of deposit, the deposit of a certain sum of money, the number of signatories required, the fact that the list has been handed over in person by a person who is deprived of his right to stand for elections and who is as such not inscribed in the electoral register.    [Back]

Note 6   This remedy is provided for in Art. G3, para. 5 of the Elections Act.    [Back]

Note 7   Art. G3 (3) (a) of the Elections Act provides that registration of the name, or indication thereof, of a political group with a view to municipal election may be refused for reasons relating to public order and good morals.    [Back]

Note 8   The destitution of the right to stand for elections can in fact be pronounced as a supplementary penalty (Art. 28 (3) of the Criminal Code).    [Back]