CCPR/C/117/D/2124/2011
arguments during the examination of the facts and merits of the case on whether
Mr. Wilders’ statements amounted to incitement to hatred, discrimination or violence, or
appeal the Court’s judgment. In this respect, the Committee considers that, for the purpose
of admissibility, the authors have sufficiently substantiated their claims under article 14 (1),
and article 2 (3) read in conjunction with articles 20 (2) and 26.
9.9
Regarding the authors’ allegations under articles 17 and 27 of the Covenant, the
Committee considers that the authors have not adduced specific arguments in support of
their claims under these provisions, distinct from their claims under articles 20 (2) and 26.
Accordingly, the Committee considers this part of the communication as insufficiently
substantiated and declares it inadmissible under article 2 of the Optional Protocol.
9.10 In view of the foregoing, the Committee decides that the communication is
admissible insofar as it raises issues with respect to article 14 (1), and article 2 (3) read in
conjunction with articles 20 (2) and 26 of the Covenant, and proceeds to examine these
claims on the merits.
Consideration of the merits
10.1 The Committee has considered the communication in the light of all the information
submitted to it by the parties, in accordance with article 5 (1) of the Optional Protocol.
10.2 The Committee notes the authors’ claim that in the criminal proceedings pursued
against Mr. Wilders under article 137d of the Criminal Code, a provision intended to
implement the State party’s obligations under article 20 (2) of the Covenant, their rights
were not respected owing to the limited role they had as injured parties and the lack of an
effective prosecution.
10.3 The Committee recalls its jurisprudence that article 14 does not provide individuals
with a right to have other individuals prosecuted or punished. 17 However, individuals can,
under article 14 (1), claim their right to a fair hearing in the determination of their rights
and obligations in a suit at law. In the present case, the authors’ claims as injured parties
within the criminal proceedings are of a civil nature and therefore their rights and
obligations regarding their civil claims for compensation in case the accused person is
found guilty are to be protected. In this respect, the Committee notes that, before the
Amsterdam District Court, the authors chose to exercise their rights by bringing a civil
claim under section 51 of the Code of Criminal Procedure as injured parties, a mechanism
that is not required by the Covenant but is available under domestic law. The Committee
also notes that pursuant to this procedure, their lawyers were allowed to speak about
whether the facts of the charge were liable to punishment and to plead that Mr. Wilders’
statements violated article 137d. The Committee further notes that the authors were allowed
to submit documentation and testify before the court. Accordingly, the Committee
considers that the facts before it do not reveal a violation of the authors’ rights under article
14 (1) in conjunction with the determination of their rights and obligations in a suit at law.
10.4 Regarding the authors’ claims that Mr. Wilders’ acquittal breached their rights under
articles 2 (3), 20 (2) and 26, the Committee notes that article 20 (2) secures the right of
people as individuals and as members of groups to be free from hatred and discrimination
under article 26 by requiring States to prohibit certain conduct and expression by law.18 It is
only with regard to the specific forms of expression indicated in article 20 that States
parties are obliged to have legal prohibitions.19 Article 20 (2) is crafted narrowly in order to
ensure that other equally fundamental Covenant rights, including freedom of expression
17
18
19
16
See communication No. 213/1986, H.C.M.A. v. The Netherlands, decision of inadmissibility adopted
on 30 March 1989, para. 11.6.
See the Committee’s general comment No. 34, para. 51.
Ibid., para. 52.