CCPR/C/117/D/2124/2011 Annex I Individual opinion of Committee member Dheerujlall Seetulsingh 1. All actions or words which tend to advocate or stir racial hatred or which may offend the dignity of fellow human beings are objectionable, reprehensible and morally condemnable. But before being legally condemned, the advocates of such actions or words, if prosecuted, must benefit from due process in Courts. And for them to be found in breach of the Covenant, all the provisions of the Covenant and its Optional Protocol must be complied with. In the present case the authors allege that the State Party has violated articles 2(3), 14(1), 17, 20, 26 and 27 of the Covenant because the Amsterdam District Court failed to find the alleged perpetrator (Mr. Wilders) guilty on charges of ‘insult of a group for reasons of race or religion’ under Section 137c of the Criminal Code and for ‘incitement to hatred and discrimination on grounds of religion or race’ under Section 137d of the Criminal Code. As stated in paragraph 2.3 of the facts presented by the authors of the Communication they were allowed to join the criminal proceedings as an aggrieved party and to claim compensation. 2. On 23 June 2011 the District Court decided that the case against Wilders could not be proved and dismissed all the charges. This resulted in a dismissal of the authors’ claim as well. The prosecutor chose not to appeal against the decision. Under Dutch law the authors had no right to appeal in such proceedings. 3. Normally a complaint in a communication to the Human Rights Committee is directed at a State Party for not having taken action against a perpetrator of a violation of human rights or for having taken unjustified action against an author in violation of the Covenant. The present complaint is directed at a State Party because a Court of Law dismissed a criminal case against an alleged perpetrator. The authors took the calculated risk of joining their civil claim to the criminal action. Due to the joinder of actions the civil claim was completely dependent on the outcome of the criminal action and the conduct of such criminal action was under the control of the Prosecutor. Furthermore, the standard of proof required for a successful outcome of a criminal action was undoubtedly higher than that required for a tort action, which compounded the risk taken by the authors. 4. What the authors are now requesting the Committee to do is to enjoin the State Party to punish the perpetrator in spite of the decision reached by an independent Court of Law in the State Party. The latter is not the wrongdoer. It took the steps that it was required to take under its own Criminal Code by prosecuting the wrongdoer. The Committee cannot compel the State Party to punish the alleged wrongdoer in spite of an acquittal. 5. Reference has been made to the decision of the Committee in Andersen v. Denmark (Communication No. 1868 of 2009) to justify a finding of admissibility of the authors’ communication. However their case can be easily distinguished from Andersen’s case. Ms. Andersen reported a case to the Danish authorities concerning racially discriminating statements in violation of a specific provision of the Danish Criminal Code. The Public Prosecutor General declined to prosecute and his decision could not be appealed. The State Party contended that Ms. Andersen could have entered a private prosecution under a different provision of the Criminal Code and that she had not thereby exhausted all available domestic remedies. The Committee considered that it would be unreasonable to expect the author to start separate proceedings under the Criminal Code on her own initiative and found the plaint admissible. In the present case, however, we are concerned with the failure of an action under criminal law and with the possibility of entering a 19