Communication No. 408/1990
Submitted by: W. J. H. (name deleted) (represented by counsel)
Date of communication: 15 November 1989
Alleged victim: The author
State party: The Netherlands
Declared inadmissible: 22 July 1992 (forty-fifth session)
was due to a procedural error: it referred in this
context to the judgment of the Arnhem Court of
Appeal of 24 December 1985, by which the
author was convicted on the basis of evidence
that later was found to have been irregularly
obtained.
Subject matter: Request for compensation for
damages resulting from time spent in pretrial detention
Procedural issues: Inadmissibility ratione
materiae
Substantive issues: Presumption of innocence—
Miscarriage of justice
Articles of the Covenant: 9(5), 14(2) and (6)
2.3
The author claims that, as no legal
remedy for the denial of compensation is
available, domestic remedies have been
exhausted.
Article of the Optional Protocol: 3
The complaint
1.
The author of the communication (dated
15 November 1989) is W. J. H., a citizen of the
Netherlands, currently residing in Belgium. He
claims to be a victim of a violation by the
Netherlands of article 14, paragraphs 2 and 6, of
the International Covenant on Civil and Political,
Rights. He is represented by counsel.
3.1
The author claims that the ’sHertogenbosch Court of Appeal, by its decision
of, 21 November 1988, violated his right to be
considered innocent, pursuant to article 14,
paragraph 2, of the Covenant. He submits that,
since he was not found guilty by the court, he
should not suffer financial damage as a result of
the institution of criminal proceedings against
him.
The facts as submitted by the author
2.1
The author was arrested on 8 December
1983 and kept in pre- trial detention
until 8 February 1984. On 24 December 1985,
the Arnhem Court of Appeal convicted him on a
variety of criminal charges, including
forgery and fraud. On 17 March 1987,
the Supreme Court (Hoge Raad) quashed
the earlier conviction and referred the case to
the ’s-Hertogenbosch Court of Appeal, which
acquitted the author on 11 May 1988.
3.2
He further contends that the failure to
grant him compensation constitutes a violation of
article 14, paragraph 6, of the Covenant. He
claims that the judgment of the Arnhem Court of
Appeal of 24 December 1985 was a final
decision within the meaning of article 14,
paragraph 6, because it was the judgment of the
highest factual instance. In this context, he
argues that the subsequent judgments acquitting
the author, constitute “new facts” within the
meaning of article 14, paragraph 6. He finally
claims that. his pre- trial detention should be
considered equivalent to “punishment” in said
paragraph.
2.2
Pursuant to sections 89 and 591a of the
Code of Criminal Procedure, the author
subsequently filed a request with the ’sHertogenbosch Court of Appeal for award of
compensation for damages resulting from the
time spent in pre-trial detention and for the. costs
of legal representation. Section 90, paragraph 1,
of the Code of Criminal Procedure provides that,
after an acquittal, the Court may grant
compensation
for
reasons
of
equity.
On 21 November 1988, the Court of Appeal
rejected the author’s request. The Court was of
the opinion that it would not be fair to grant
compensation to the author, since his acquittal
The State party’s observations and the author’s
comments
4.1
By submission of 9 July 1991 the State
party argues that the communication is
inadmissible on the ground of non-exhaustion of
domestic remedies. It submits that the author did
not invoke article 14, paragraph 6, of the
Covenant when requesting compensation, but
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