VN-Mensenrechtencomité, 02-09-2022, nr. CCPR/C/135/D/3256/2018

The author was prosecuted for the murders of Mr. R.M.N. Karamatali and of Mr. B.A. Stein, which were committed in 2008. On 6 May 2010, the author was convicted to 18 years of imprisonment for the murder of Mr. R.M.N. Karamatali and was acquitted for the murder of Mr. B.A. Stein by the judgment of the First Instance Court Zwolle-Lelystad.

Following the appeal submitted by the Prosecutor to the Court of Appeal ArnhemLeeuwarden against the acquittal by the First Instance Court, the Court carried out a new examination of the facts. The author also submitted an appeal against the judgment of the First Instance Court, but he could appeal only against his conviction for the murder of the first victim.

On 26 April 2013, the author was convicted by the Court of Appeal ArnhemLeeuwarden for the murder of Mr. Karamatali, like in the judgment of the First Instance Court, and for the murder of Mr. Stein for which the author was acquitted in the first instance. He was sentenced to 29 years and six months of imprisonment.

On 31 December 2014, the author submitted a cassation appeal to the Supreme Court, arguing that the law has been misapplied as the Court of Appeal based its ruling on an incorrect understanding of the concepts of complicity (‘together and in association with others’) and premeditation, used witnesses' statements to the author's detriment, and made findings of fact which could not be made from the evidence and evidential grounds used.

On 29 September 2015, the Supreme Court dismissed the author's appeal in cassation, considering that there was no ground on which the contested judgement should be modified. The Supreme Court, however, decided to decrease the prison sentence from 29 years and six months to 29 years, and adjusted the rulings of the Court of Appeal as to damages awarded to the parties.

The author claims that no further remedies are available to contest the Supreme Court's decision. The same matter is not being examined under another procedure of international investigation or settlement.1.

The author submits that he was denied the possibility to have his conviction and sentence by the Court of Appeal for the murder of Mr. Stein, of which he was acquitted by the first instance court, to be reviewed by a higher tribunal according to law. Therefore, his rights under article 14(5) of the Covenant have been violated.

He asserts that there is no legal body in the Dutch system which reviews the facts of the case again after he has been convicted for the first time by the Court of Appeal. The First Instance Court and the Court of Appeal are the only two legal instances which review the facts of a case.

Although the author appealed in cassation against the judgment of the Court of Appeal at the Supreme Court, the latter Court did not look at the facts anymore. The aim of the cassation is to preserve legal uniformity, to steer the development of law and to safeguard legal protection. Cassation represents a quality control of contested judgments handed down by the Courts of Appeal as regards both the application of law and the legal reasoning. In addition, the Supreme Court dismissed the author's appeal in cassation.

According to the jurisprudence of the Committee, an effective review requires that a higher tribunal consider the facts of the case.2. The author claims that he has the right to a new examination of the facts concerning the murder of Mr. Stein, as provided for in article 14(5) of the Covenant. However, the new examination of facts is not possible in the Dutch legal system once the author has been convicted for the first time by the Court of Appeal. The author therefore did not have an effective access to the instance of appeal.

Another factor is the severity of the crimes of which the author has been convicted. The maximum sentence for murder according to the Dutch law is a life sentence. When the case implies such a severity of the crime, it is even more important to enjoy the right to a conviction and sentence being reviewed on appeal by a higher tribunal.

The author requests the Committee to conclude that the State party has violated its obligations under article 14(5) of the Covenant, and to recommend that it adopt all necessary measures to provide the author with appropriate remedies, in accordance with article 2 (3) of the Covenant, including the re-examination of his case by the domestic authorities.

On 2 November 2018, the author indicated that he would like his case to be reviewed by a higher tribunal in the Netherlands, as set out in article 14(5) of the Covenant, including the facts of the case.3. He would also like the State party to grant him full reparation for the violation of his rights.

In addition, the author would like to be given the opportunity of a revision of his case by the High Court, in case the Committee concluded that a violation of the Covenant took place, similarly to findings of a violation by the European Court of Human Rights (ECtHR), which serve as grounds for revision of the national judgment. The author also requests clearance of his criminal record regarding the offence concerned in the present case, deleting all data concerning the offence from the police records and compensating him for unlawful imprisonment.4.

On 18 April 2019, the State party submitted its observations on admissibility and the merits of the communication, recalling the main facts.

The author was prosecuted for his participation in two murders committed in October 2008. By judgment of 6 May 2010, the District Court (Rechtbank Zwolle-Lelystad) sentenced him to 18 years of imprisonment for the joint perpetration of a murder and the concealment and disposal of the corpse, for the joint perpetration of the concealment and disposal of a second corpse and for an attempt to solicit murder. The Court considered that there were not enough elements to prove that the author was guilty of the joint perpetration of another murder and decided to acquit him of those charges. The author and the Prosecutor appealed against the District Court's judgment. By judgment of 26 April 2013, after the examination in court (on 7 November 2012, 9 January 2013 and 8, 9, 10 and 12 April 2013), the Court of Appeal upheld the conviction by the first instance court, but found him also guilty of the murder of which he had been acquitted in the first instance. The Court of Appeal imposed him a sentence of 29 years and six months.

An appeal in cassation was lodged on the author's behalf. At the hearing of 19 May 2015, the Prosecutor General at the Supreme Court recommended that the contested judgment be set aside, but only in respect of the prison sentence that had been imposed and a number of decisions allowing monetary claims. On 29 September 2015, the Supreme Court set aside the contested judgment, but only in respect of the duration of the prison sentence that had been imposed. The Supreme Court followed the Prosecutor General's advisory opinion. The sentence was reduced by six months to 29 years of imprisonment. In all other parts, the Supreme Court dismissed the appeal in cassation and the judgment of the Court of Appeal became enforceable.

The State party argued that the present communication is inadmissible for failure to exhaust available domestic remedies, pursuant to article 5(2)(b) of the Optional Protocol, as the author did not raise any of the issues presented to the Committee in the proceedings at the Supreme Court. In particular, he did not complain that the Dutch law of criminal procedure is deficient as it does not provide for the availability of a second instance of appeal, which would reassess the facts of the case.

On the merits, the State party argues that article 14(5) of the Covenant has not been violated. In the present case, article 14(5) does not establish any right to a second instance of appeal in which the facts of the case are reassessed. Following each conviction, the author had a legal remedy available within the meaning of article 14(5). The travaux préparatoires of the provision concerned show that the intention was to express the general principle that a legal remedy must be available against a criminal conviction. As a general rule, any person convicted of a crime has the right of appeal. A decision was made not to specify any further details regarding the legal remedy, leaving States free to take further decisions on this point. There is also no indication that there is any right to several instances of appeal following a conviction. The State party holds that article 14(5) requires only one instance of appeal in which the facts are reassessed.

The author argues that an appeal in which the court reassesses the facts must always be available in such a situation.5. The State party disagrees; such interpretation would be incompatible with the intention of all States parties to the Covenant. It would also contradict other human rights instruments, such as Protocol no. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). If the author's line of argument were to be accepted, article 14(5) would have to be interpreted the way that, if a court of first instance reaches a conclusion on the basis of the facts, and an appellate court then comes to a different conclusion on the basis of the same facts, another appellate court would be required to reassess those same facts. This could lead to endless proceedings concerning the same facts, and entail a significant disruption of the court systems of civil law countries. Under these systems, it is possible (in contrast with common law countries) for a person to be convicted in appellate proceedings following an acquittal in the first instance. It is unlikely that an interpretation of article 14(5) that prohibits such an outcome if no second instance of appeal is available would correspond with the intention of all States parties to the Convention (in particular those in which conviction is possible after an acquittal). This intention is demonstrated by the reservations entered by several States parties to article 14(5) of the Covenant, which interpret article 14(5) in a way that national legislation, which provides that no further appeal is available against a conviction in appellate proceedings subsequent to an acquittal in the first instance, is not incompatible with the Convention. Although the Netherlands has not entered a declaration to this effect, the Government does not believe this to be necessary since it considers the aforementioned reservations as interpretative declarations.6. If a so-called reservation merely offers a state's understanding of a provision but does not exclude or modify that provision in its application to that state, it is, in reality, not a reservation.7. The other States parties did not object to such interpretative declarations.

A further indication that the author's interpretation of article 14(5) does not correspond to the States parties' intentions is the fact that 44 States parties have also ratified Protocol No. 7 to the ECHR. Article 2(2) of the Protocol No. 7 allows a person's right to have his conviction reviewed by a higher tribunal to be subject to exceptions in cases in which the person was convicted following an appeal against acquittal in the first instance. It seems therefore more likely that article 14(5) should be interpreted in such a way that it does not establish any right to a review at a third instance following a conviction in appellate proceedings.

In the present case, the author had a legal remedy within the meaning of article 14(5) of the Covenant available after each conviction. The State party recalls that a procedure that ‘provides for a judicial review (…) on matters of law only ‘is not a legal remedy within the meaning of article 14(5) of the Covenant.8. Neither is a review that ‘is limited to the formal or legal aspects of the conviction without any consideration whatsoever of the facts’ considered sufficient.9. However, a procedure in which ‘a higher instance court looks at the allegations against a convicted person in great detail, considers the evidence submitted at the trial and referred to in the appeal, and finds that there was sufficient incriminating evidence to justify a finding of guilt in the specific case’ is sufficient. 10. The jurisprudence of the Committee also shows that the fact that a supreme court can review an appeal court's assessment of the sufficiency of the evidence is important.11. The Committee has pointed out that the phrase ‘according to law’ must be understood to refer to the modalities by which the review by a higher tribunal is to be carried out.12.

On the basis of the foregoing, the State party argues that both the appeal and the appeal in cassation must be regarded as legal remedies within the meaning of article 14(5) that were available to the author. The statutory provisions governing appeal require the Court of Appeal to deliberate and decide with reference to the examination in court in both the first instance proceedings and appeal proceedings.13. In 2007, the system was amended by the introduction of the Criminal Appeal Procedures Act, making it possible for the examination in court during the appeal proceedings to focus on the objections raised by the defendant and/or the public prosecutor. Nevertheless, the Court of Appeal remains a second instance in which questions of facts are decided. Following acquittal on an entire indictment in the first instance, the offence in question will no longer be addressed in the appellate proceedings, unless the public prosecutor appeals against the acquittal. 14. The Court of Appeal must in all cases pronounce anew on inter alia the question of whether the charges in the indictment have been lawfully and convincingly proved. The legal remedy of appeal in cassation is intended inter alia to determine whether the Court of Appeal's decision was in accordance with the law, and whether the necessary procedural requirements were satisfied. There must be a specific complaint about a violation of a particular rule of law and/or a breach of an applicable procedural requirement by the court.

An example of the latter would be a complaint concerning defective reasoning in relation to the evidence for certain charges, for instance a violation of article 359(3) of the Code of Criminal Procedure. This provision enables the Supreme Court to consider the facts and the interpretation of the evidence. If the appeal in cassation is admissible and grounds for appeal have been submitted on time, they will then be discussed by the Advocate General at the Prosecutor General's office at the Supreme Court in his written advisory opinion.15.

If, for example, the Advocate General discusses the defence's objections regarding the evidence in great detail, explains why they are unfounded and then recommends that section 81 of the Judiciary Act be applied, and the Supreme Court then hands down a decision to this effect — generally without providing further reasons — this indicates that the Supreme Court concurs with the advisory opinion. The appeal in cassation is always decided on by (at least) three members of a full-bench of the Supreme Court, after its own assessment. In the majority of cases in recent years in which the Committee has found a violation of article 14(5) of the Covenant, the limitations on the right of appeal imposed by the national systems meant that the merits of the authors’ cases were only examined once.

The author's case has been examined in three instances of judicial proceedings. The facts were examined in extensive detail at both the district court and the Court of Appeal. The Court of Appeal found that there was sufficient incriminating evidence to justify a finding of guilt. The defendant's counsel appealed in cassation and submitted various grounds for appeal, submitting inter alia various complaints about the decisions given on the evidence for the charges and reasons given for those decisions. The Advocate General addressed these objections in great detail in his advisory opinion, explaining that the complaints could not succeed, and recommended that the appeal in cassation be dismissed by applying section 81 of the Judiciary Act. The Supreme Court also assessed the grounds for appeal in cassation and then followed the recommendation of the Advocate General. The Government believes that the appeal in cassation was a procedure in which ‘a higher instance court looks at the allegations against a convicted person in great detail, considers the evidence submitted at the trial and referred to in the appeal, and finds that there was sufficient incriminating evidence to justify a finding of guilt in the specific case.’

The State party further argues that the author's reference to the case S.Y. v. the Netherlands concerns different circumstances, involving a leave to appeal. In the present case, it is clear from the judgment of the First Instance Court, the Court of Appeal and the Supreme Court, that the author's case has been examined in great detail. There is no evidence of the rights of defence having been prejudiced in any way. It is inappropriate to use a settlement proposal from a different case as a benchmark for reparation in the present case, particularly since the substance of the cases differs significantly. The State party reiterates that there is no indication that several instances of appeal must be available. In the present case, it would go beyond reasonableness to require the availability of a further avenue of appeal in which the facts can be reassessed.

The State party requests the Committee to declare the complaint inadmissible due to non-exhaustion of domestic remedies, or to consider that the author's conviction does not constitute a violation of article 14(5) of the Covenant.

On 4 October 2019, the author submitted his comments, arguing that the communication should be declared admissible as he had exhausted domestic remedies.

The author and the prosecutor have submitted an appeal against the judgment of the First Instance Court. The author submitted an appeal in cassation against the judgment of the Court of Appeal to the Supreme Court. In the cassation procedure, it was not possible to complain about the Dutch law of criminal procedure being deficient as it makes no provision for the availability of a second instance of appeal in which the facts of the case are reassessed, because in cassation a new examination of the facts of the case does not take place. In general, the author cannot complain about a missing legal instance, at a missing legal instance. There is no other instance of appeal after the appeal in cassation.

The author objects to the argument about the intention of all States parties to the Convention not to apply article 14(5) to the situations when no second instance of appeal is available. Such intention does not appear from the reservations made, and the Dutch Government did not enter a declaration. As regards the assertion that the author's interpretation of article 14(5) does not correspond to the States parties’ intentions, based on the fact that 44 of the States parties have ratified Protocol No. 7 to the ECHR, the author submits that ECHR sets out the right to two legal instances and not a factual legal instance after a conviction such as in the Covenant. The latter is precisely the literal text of the concerned provision of the Covenant. The Covenant's provisions have also been directly applicable under the Dutch legislation. Since a citizen can complain about a violation of the Covenant, after having turned to the European Court of Human Rights, the Dutch legislator sees a difference between the two treaties, and accepts a possible broader legal protection by the Covenant. The author concludes that article 14(5) of the Covenant offers citizens a broader protection than Protocol No. 7 to the ECHR as it does not limit the right to appeal to two legal instances.

While article 14(5) does not require States parties to provide for several instances of appeal, in a situation when a suspect has been acquitted by the court in the first instance, but has been convicted by an appellate court, there must be a possibility for a suspect to have his conviction and sentence being reviewed by a higher tribunal. If this higher tribunal concludes that the suspect should be convicted based on the same facts, the suspect has had the possibility to have his conviction and sentence reviewed by a higher tribunal. The conviction would then be a final judicial decision. The fears of endless proceedings concerning the same facts are therefore unjustified.

Furthermore, the author does not share the State party's argument that, following each conviction, he had a legal remedy available within the meaning of article 14(5) of the Covenant. As determined in H.K. v. Norway, there needs to be a legal instance where a new examination of the facts of the case takes place. 16. One can state that a pure cassation procedure is insufficient and not in accordance with article 14(5). It is not a procedure whereby an accused can resubmit his conviction and sentence to a judge. A new examination of facts of the case and evidence does not take place at the Supreme Court of the Netherlands.,

In a number of cases, the Committee found a violation of the right to a review of conviction and sentence by a higher court when the accused was acquitted at first instance and convicted on appeal.17. Even in cases in which an accused was acquitted and convicted of a number of offenses at first instance and convicted on appeal for the offenses of which he was acquitted in the first instance, the Committee found a violation if no actual appeal instance had been available against those first instance convictions.18. The referred cases relate to a similar if not identical situation to that of the author.

In the Netherlands, there are only two factual legal instances; the First Instance Court and the Court of Appeal. After the author has been convicted by the Court of Appeal, there has been no possibility for him to submit appeal to a higher legal instance that would deal with facts. The argument that following each conviction, the author had a legal remedy available within the meaning of article 14(5) of the Covenant, is incorrect.

On 9 December 2019, the State party submitted that the author's comments of 4 October 2019 do not give any reason to alter its initial observations.

As to admissibility, the State party maintains that the communication should be declared inadmissible. The cassation procedure represents a second instance of appeal in which the facts of the case are reassessed, referring to two national cases wherein article 14(5) of the Covenant was invoked before the Supreme Court.

On the merits, the State party indicated that article 14(5) has not been violated since it does not establish any right to a second instance of appeal in which the facts of the case are reassessed. It also argued that, following each conviction, the author had a legal remedy at his disposal.

The State party does not agree that the cases of H.K. v. Norway and Gomaríz Valera v. Spain relate to a situation similar or identical to that of the author's. In H.K. v. Norway, the case concerned the court of appeal's decision to deny leave to appeal the conviction by the district court. The author's claim was limited to the lack of a duly reasoned judgment. The Committee did not agree that article 14(5) of the Covenant had been violated.

In Valera v. Spain, the author's claims concerned a lack of legal possibility to challenge his conviction by the Provincial High Court before the Supreme Court of Spain. As explained, the author's case was assessed by the district court, the Court of Appeal and the Supreme Court, within the meaning of article 14(5).

On 9 July 2020, the State party requested an authorization to provide update on the decisions of the Supreme Court. The new case law has concerned the contention in the present communication, namely the scope of article 14(5) of the Covenant.

The Supreme Court judgment concerning a situation similar to that of the author was delivered on 18 February 2020.19.

In that case, the district court had acquitted the defendant of the offences with which he had been charged. On appeal, the defendant was convicted of various offences. In the appeal proceedings, counsel for the defendant argued that in cases such as that, in which the defendant is acquitted at first instance and the Public Prosecution Service lodges an appeal, the Dutch law of criminal procedure does not comply with international requirements, in particular article 14(5) of the Covenant. Due to the restrictions inherent to appeal in cassation, it was argued that these proceedings could not be deemed ‘review by a higher tribunal’ within the meaning of article 14(5) of the Covenant. After this defence failed on appeal, counsel lodged an appeal in cassation. The Advocate General submitted an advisory opinion on this case to the Supreme Court on 3 December 2019, arguing that article 14(5) does not preclude the Dutch cassation system, under which the Supreme Court's review encompasses the court of appeal's use of evidence.

The communication Gomaríz Valera v. Spain, referred to by the author, concerns the Spanish system of appeals prior to a ‘transformation’ in the case law that broadened the traditional scope of cassation recognized by the Spanish Supreme Court. The questions of facts that are excluded from the Spanish appeal on cassation have since been reduced to those questions that would require the resubmission of evidence in order to permit re-evaluation.20. In light of this transformation, the Committee noted that the Spanish Supreme Court thoroughly examined each of the grounds for appeal adduced by the author and subsequently declared the author's complaint relating to article 14(5) inadmissible.21. Since then, there have been other instances in which the Committee has found that the Spanish system of appeals does not give rise to any issues under article 14(5) of the Covenant.22.

From V.S. v. Lithuania, it is clear that the Lithuanian Court of Cassation does not reevaluate the evidence of criminal cases or collect new evidence. However, it does examine the arguments of the cassation appeal. The Lithuanian Government emphasised that the Court of Cassation analysed the author's arguments, compared those with the evidence set out in the appellate court's judgment, and found no violation.23. Had the Court of Cassation found a violation, it would have referred the case to an appellate court for re-examination.24. The Committee considered that the author was not able to substantiate that the scope of appellate jurisdiction exercised by the Lithuanian Court of Cassation deprived him of his right to have his conviction and sentence reviewed by a higher tribunal according to law, and declared the author's claims on this point inadmissible.25.

As regards the Netherlands, the State party emphasized that when examining the grounds of appeal in cassation, section 79 of the Judiciary Act allows the Supreme Court to determine whether a court of appeal's decision was in accordance with the law, and whether procedural requirements have been satisfied. If the Supreme Court considers that the evidence used cannot support a finding that the charges have been proved, it can refer the case back to a court of appeal, as reconfirmed by the Supreme Court in the judgment of 18 February 2020. In another judgment of 16 October 2018, the Supreme Court ruled that a court of appeal is required to carefully substantiate the reasoning that leads to such a conviction on appeal in part on the basis of a witness statement…

The Supreme Court held that the strict reasoning requirement enables it to review the court of appeal's use of evidence in even greater depth in situations like this.

On 9 October 2020, the author submitted additional comments.

He objected that the appeal in cassation enables a review of the sufficiency of the evidence and of the reasons for decision on evidence, as it is determined by the grounds of appeal in cassation. The severity of the crime plays an important role as a determining factor.26. If the crime is serious enough, a review by a higher tribunal pursuant to article 14(5) of the Covenant is required.

The review by the Supreme Court is not factual because it only makes a legal review of the evidence used. Such review should be factual.27. The Supreme Court only does a legal test afterwards. A legal assessment of the evidence used is not sufficient to state that the Supreme Court looks at factual dimensions.28.

The Supreme Court's test whether there is lawful and sufficient evidence (if there is enough legal evidence to convict someone) is not a complete and factual review by a higher tribunal. Even in cases where there is lawful and sufficient evidence for a conviction, the Dutch judges can acquit because they haven't been persuaded or there are alternative scenarios.

On 18 February 2020, the Supreme Court ruled that its proceedings do not breach article 14(5) of the Covenant. The Supreme Court has stated many times that the first instance court and the court of appeal are the only two legal instances which review the factual dimensions of a case, and the Court works with the facts as they have been established by the court of appeal. The author therefore concludes that there has been a violation of article 14(5).

On 5 November 2020, the author requested that his interpretation of the new Dutch case law, as contained in the submission of 9 October 2020, be treated equally to the State party's additional observations.