The Netherlands: Urged to reform rules on criminal procedure and the right to appeal

23.12.2014

In July 2014, the Human Right Committee was asked to consider whether the Netherlands had failed to allow an individual convicted of assault to exercise his right to appeal in a meaningful way in violation of the individual’s rights under the Covenant. The communication was submitted by a Dutch national under the Optional Protocol to the Covenant.

Timmer v. Netherland (2097/2014)

Summary

In July 2014, the Human Right Committee was asked to consider whether the Netherlands had failed to allow an individual convicted of assault to exercise his right to appeal in a meaningful way in violation of the individual’s rights under the Covenant.

The communication was submitted by a Dutch national under the Optional Protocol to the Covenant.

Background

On 23 July 2007, the author of the communication, Mr Gert Jan Timmer, was summoned to appear at the District Court of Arnhem on suspicion of assaulting a police officer and for failing to identify himself.

On 28 August 2007, the hearing was postponed until 10 October 2007 to allow the author the opportunity to read the case file, which he had not received in advance of the August hearing date.

At the hearing, the author was convicted of both offences and ordered to pay fines of EUR 170 for the assault and EUR 50 for not complying with the order to identify himself. No transcript of the hearing was produced, however, and no evidence-based reasoning was provided in the judgment (with Dutch criminal procedure permitting such an “abridged judgment” in the circumstances). 

On the same day as his conviction, the author filed an appeal with the Court of Appeal in Arnhem.

On 8 January 2008, the Court of Appeal decided that the author’s appeal would not be considered as the administration of justice did not require the case to be heard on appeal.

The author requested that the President of the Court of Appeal revise the decision of 8 January 2008. The President refused to do so in letters dated 13 and 23 December 2010.

On 2 February 2011, the author filed this communication with the Committee under the Optional Protocol to the Covenant. The author claimed that the Netherlands had violated his rights under article 14(5) of the Covenant to have his criminal conviction reviewed by a higher tribunal. He requested a full review of the criminal case against him, the clearing of his reputation, and damages for the violations of his rights and for reputational harm.

The Committee’s decision

Regarding the admissibility of the author’s claims, the Committee found that the communication was admissible, as the author had exhausted all available domestic remedies and had sufficiently substantiated his claim, and the matter had not already been examined under another procedure of international investigation or settlement.

On the merits, the Committee found that the author’s right to appeal under article 14(5) of the Covenant had been violated, due to the Netherlands’ failure to provide conditions for a genuine review of his case by a higher tribunal and adequate facilities for preparation of his appeal. In particular, without access to a reasoned judgment or a trial transcript, the author had effectively been prevented from preparing an appeal.

In accordance with article 2(3) of the Covenant, the Committee observed that the Netherlands was under an obligation to provide the author with an effective and appropriate remedy, including adequate compensation. The Committee considered that the financial compensation of EUR 1,000 proposed by the Netherlands did not on its own constitute an effective remedy as it did not provide for a review of the author’s criminal conviction, contrary to article 2(3)(a) of the Covenant. The Committee also found that the Netherlands should bring the relevant legal framework into conformity with the requirements of article 14(5) of the Covenant.

The Netherlands must now submit its written response within six months of the Committee’s decision, including information on the action taken in light of the Committee’s recommendations, and ensure that the Committee’s decision is published widely.

Sam Hunter Jones is an international lawyer, based in London.

UN Photo/Evan Schneider