The author of the communication (initial 1.tt.r dated 31 October 1986, and subsequent submislions of 6 April 1987, 20 June and 18 July 1988) is H. C. M. A., a citizen of the N.th.r1ands r.sidinq in the N.therlands. He a11eqes to be a victim ot violations of artic1' 2, paragraphs 2 and 3, articlel 7, 9, 10, paragraph 1, and 14, paragraph 1, of the International Covenant on Civil and Political Riqhts by the Government of the Netherlands. He is represented by counsel.
The author states that on Friday, 19 March 1982, he participated in a peaceful demonstration ln Amsterdam to protest the murd.r of four Netherlands journalists in El Salvador. After leavinq the site of the demonstration, he was assaulted by four unknown persons and sUltained injuri'l. Subsequ.ntly, policem.n in civilian cloth.s pushed him into a police car and h. wal detained in a polic. cell. After four witnesses testified at the police station that he had not disturbed the public order, he was released oa Tuesday, 23 March 1982. He was tried for public disorder before the Amsterdam Criminal District Court and acquitted on 5 Sept.mber 1984. On 1 April 1985 the ~sterdam District Court, Second Chamber, awarded him 400 Netherlands guilders for unlawful detent~on.
The author poin~J out that on 22 April 1982 h. ~omp1ained to the court of first instance about maltreatment by a police officer. His complaint wal transmitted by the court of first instance to the military prosecutor, al the rank to whicb the police officer ~elonqed fell under military jurisdiction. The military prosecutor, however, dismissed the complaint. On appeal, the Military High Court stated that in cases of military proceduta1 law only the Minister of Defenc@ had authority to order prosecution. The Military Hiqh Court thus decided that it was not competent to rule on the case. Its president subsequently transmitted the file to the Ministers of Defen~e and Justice, considerinq that it would b@ an anoma~oul situation if perlons falling under military jurisdiction could be immune from prosecution under certain circumstances, while persons falling under civilian jurisdictior. could b9 prosecuted.
By its decision of 9 December 1986, the Working Group of the Human Rights Committee transmitted the communication under rule 91 of the provisional rules of procedure to the State party concerned, requesting information and observations relevant to the question of admissibility of the communication, in partiCUlar details of the effective remedies available to the author in case domestic remedies had not been exhausted. It also requested the State party to provide the Committee with copies of any administrative or judicial decisions relevant to the communication.
In its submission under rule 91, dated 11 February 1987, the State party provides an outline of the factual situation and argues that the communication should be declal'ed inadmissible on the grounds that the allegations put forward by the author do not disclose a violation of any of the rights enumerated in the Covenant and that, therefore, the author has no claim under article 2 of the Optional Protocol.
With regard to tha factual situation, the State party states that the author was arrested in Amsterdam on 19 March 1982 "on the accusation of having committed violent acts (throwing stones at the consulate of the United States of America) during an anti-El Salvador demonstration". The author was arrested by a team consisting of an Amsterdam City Police officer and an officer belonging to the Royal Military Police (Roninklijke Marechaussee), which also has the task of providing military assistance to the Amsterdam City Police. The State party affirms that, since the author did not submit himself willingly to the authoritie~, a brief struggle ensued, in the course of which the author'~ jaw was injured. He received medical treatment for a bruise to his jawl the Burgeon on duty stated that the author did not sustain any permanent injury, and the latter did in ~act not report for a scheduled medical examination two weeks later.
Inasmuch as the applicable procedures are concerned, the State party argues thnt in cases such as the one affecting the author, namely the filing ~f. complaints about the acts of officers of the Royal Military Police, complaints have to be addressed to the prosecutor of the ROY3l Netherlands Army (the Auditeur-Militair), as civilian judicial authorities are not competent to prosecute military personnel. A decision whether or not to prosecute is taken by a military legal officer (verwijzingsofflcier) who acts on behalf of the Commanding-General, upon advice of the Prosecutor of the Army. This was also the procedure applied to the case of the author. Against the decision not to prosecute the military police officer who allegedly maltreated the author, the author lodged a complaint with th~ wh~ther the governmental act was proper and, optionally, recommending possible remedies to the Administration. In the present case, the Ombudsman advised the author to appeal to the 8igh Military Court (Hoog Militair Gerechtshof) against the decision communicated by the prosecutor of the Army.
On 13 June 1983, the High Military Court decided that it was not competent to decide on the case, as only the Minister of Defence can order the military legal officer or Commanding-General to prosecute a case. In this context, the State party points out that a provision analogous to article 12 of the civilian Code of Penal Procedure, under which a complaint with an appeal court can be filed if no prosecution is decided upon, does not exist. In the present case, the Minister of Defence held that, as formal notification of non-prosecution to the Royal Military Police had already been given, be could not oblige the military legal officer or the Commanding-General to prosecute the case. The author, subsequently, did not request further action by the Ombudsman, who therefore did not initiate an inquiry.
Finally, the State party observes that legislative proposals that would solve the discrepancy between the Code of Military Penal Procedure and its civilian counterpart have been introduced in the Netherlands Parliament and are awaiting approval. An lnterim solution has been ruled out, given the extensive legislative changes that it would require and the rare occurtence of the complaints in question.
With regard to the distinguishes betweenl (b) the alleged lack of prosecuted. admissibility of the communication, the State party (a) the actual treatment of the author upon his arrest; and an adequate legal procedure to see the arresting officer
With regard to the first issue, the State party recalls the requirement of article 2 of the Optional Protocol that only individuals who have exhausted all avail~ble domestic remedies may submit a communication to the Committee and submits that a tort action against the Government could not a priori be called futile. With regard to the alleged violations of articles 7 and 10 of the Covenan~, it submits that the allegations of the author do not come within the scope of the concepts "torture" or "cruel, inhuman or degrading treatment" or the obligation to treat individuals "with humanity an~ with respect for the inherent dignity of the h~an person", nor indeed, within the scope of any other concept in the Covenant, and therefore cannot be regarded as constituting a violation of Covenant rights. Furthermore, in the State party's view, the author has not substantiated his allegations in such a way as to support his claim credibly.
Concerning the second issue, the State party submitsl "that the allegations in the communication cannot be regarded as constituting a violation of any of the rights enumerated in the Covenant. More in particular, the Goverr~ent is not aware or ~ny right laid dow~ in the Covenant to see someone else prosecuted. Furthermore, the allegation& have not been substantiated in such a way as to credibly supp\)rt a cll'!.lm regarding such a violation ••. ".
In a submission dated 6 April 1987, the author comments on the State p3rty's charge that he had l"~en arrested becausJ of throwing stones at the United States consulate during a demonstration. ~e affirms thBt he only demonstrated and that he
The author states that, in the civil proceedings against the officer of the Royal Military Police which remain sub judice, five witnesses testified on his behalf, all of whom confirmed that he did not resort to violence during the demonstration in question. Although not currently experiencing any physical effects of the maltreatment suffered at the hands of the police officers, he still suffers from psychic trauma. He encloses the report from the psychiatrist who treated him, according to which there are unmistakable links between the way the author was treated durin9 his arrest ana d~tention and his subsequent psychological disturbances, e.g. the co~tinuing fear of being attacked in the street.
He reiterates that the right to test the decision of whether or not to prosecute somebody by a competent, independent and impartial tribunal established by law is a right enshrined in article 14 of the Covenant, and that there is also a right, in a suit at law, to be safeguarf3d against military arbitrariness.
By further decision under rule 91, dated 6 April 1988, the Working Group of the Human Rights Commltte;' requested the State party, inter alia, to clariff (a) why the author was subjected to detention for four daysl (b) whether the author was brought before a judge or judicial officer during this period1 (c) whether he could have invoked the principle of habeas corpus during this periodl (d) the extent to which the competent military authorities investigated the author's complaintl and (e) whether any written decision was handed down by the Military Prosecutor, explaining why no criminal proceedings against Mr. O. were initiated; in the affirmative, to provide the Committee with the textl in the negative, to clarify the Military Prosecutor's reasons for not indicting Mr. O.
The Working Group also requested the author (a) to clarily his allegation that he was subjected t~ ill-treatment during detention in March 19821 (b) to forward to the Committea an English translation of (i) his complaint of 22 April 1982 to the Court of fir~t instance1 and (ii) his legal brief in the civil proceedings againRt Mr. 0.1 and (c) to indicate the current stage of the latter proceedings.
In its reply dated 17 June 1988, the State submits, with regard to the author's arrest and detention: "The plaintiff arrived at the police station at 2130 nnurs on Friday, 19 March 1982, and was immediately brought before an assistant public prosecutor. The plaintiff, who was suspected of assault, a criminal offence under article 141 of the Criminal Code, was questioned on the morning of Saturday, 20 March 1982, and a chi~f superintendent of the municipal police, acting as ~ssistant public prosecutor, ordered him to be remanded in police custody as from 1230 hours for a maximum of two days. The interests of the investigation required that the suspect should remain in the hands of the judicial authorities to all0w for further questioning and the examination of witnesses.
with respect to remedies available to the author, the State party submits th~t during the four days of detention the author could have applied to the civil courts for an injunction to secure his release if he believed he was being unlawful" 1 detained. It explains that "[the author'S] complaint was minutely examined by the competent military judicial authorities. A complaint can tead to three situations I "1. If both the Auditeur-Militair and the Commanding-Generall Verwijzingsofficier find the complaint well-founded, prosecution will be effected (article 11 RLLu). "2. If the Commanding-General and the Auditeur-Mi1itair disagree, the Hoog Militair Gerechtshof (milit.Jry court of appeal) can order prosecution (article 15 RLLu). Moreover, during the investigation the Minister of Defence can order the Commanding-General to prosecute (article 11 RLLu). -3. If both authorities find the complaint ill-founded, no prosecution will follow. In the instance of [A. v. C.), both the Auditeur-Militair and the Commanding-General/VerwijzinSlBofficier found the complaint ill-founded after thorough review. It was concluded that p,osecution of [Mr. 0.] should not be effected in view of the fact that the injurie~ sustained by [Mr. A.] were a consequence of his resistance to the arrest. "One of the tasks entrusted to the police is the effective maintenance of law and order. This can, under certain circumstances, necessitate the use of force. At the time of the arrest, [Mr. 0.] was seconded to the civilian police. Therefore civilian police regulations on the use of force were applicable. The police must act according to their standing instructions on the use of force, whereby the principles of last resort and proportionality must be observed, which is to say that a police officer may only use force if no other means is available to him, and that he must act in a reasonable and restrained manner. The Netherlands Government has no evidence to suggest that these rules were not observed during the applicant's arrest." In the State party's opinion, the procedure concerning the decision not to prosecute ~~. o. described ftbove did not diverge from the standard procedure in the author's casa. It adds that the Auditeur-Militair notified the author's counsel of the decis~on not to prosecute ~r. O.
The State party reiterates that it considers the communication to be inadmissiblel "The first complaint, contained in the communication, regarding the actual treatment oC [Mr. A.] upon his ecrest, is deemed inadmissible since the tort procedure against the Government is still §~ juyl~ (before the "The second complaint contained in the communication, regarding the lack of adequate legal procedure to see the arresting officer prosecuted, is in the view of the Government also to be declared inadmissible, as ~he allegations concerned cannot be regarded to constitute a violation of any of the rights enumerated in the Covenant. Nor have the allegations been sufficiently substantiated."
In his submission of 20 June 1988, author's counsel states, inter alia, "I sent to you previously two medical records of the physical and psychical injuries sustained by my cli8~t. Dr. Baart investigated my client during his detention (report dated 16 June 1982). Dr. van Ewijk, the psychiatrist (report dated 19 December 1986), diagnosed my client's illness as a traumatic neurosis in connection with his arrest in March 1982."
In his comments of 18 July 1988 on the State party's submission, author's counsel arguesl "The Netherlands Code of Criminal Procedure is not in accordance with article 9 of the Cnvenant. In the Code of Criminal Procedure a suspect can bs held in custody for 4 days and 15 hours before he shall be brought before a judge or officer authorized by law to exercise judicial power. "[Mr. A.] has also not been held in custody in accordance with articles 52 to 62 of the Code of Criminal Procedure. Normally the suspect is held in custody for two days .•. after questioning. In plaintiff's case the questioning was held on Monday, 22 March 1982. Before that [Mr. A.] had been questioned v~rl shortly, so it is not true that [Mr. A.] was questioned on the morning of Saturday, 20 March 1982. Nor is it true that [Mr. A.] could apply to the civil court for an injunction to secure his release. [Mr. A.] was de':ained during the weekend, at which time the Court is not in session."
Counsel further claims the civil proceedings initiated against Mr. O. have nothing to do with the complaint, since the State party is not a party in it. It serves only the purpose of personal satisfaction and reparation. Counsel reiterates that the author's request for prosecution of the police officer is admissible and reaffirms that the right to demand prosecution of this officer is protected by article 14 of the Covenant.
On 13 September 1988, the State party submitted further comments on the author'S submission: "In accordance with art.icle 57 of the Code of Criminal Procedure, the applicant was questioned before the decision to remand him in custody was taken. '" Questioning took place at 10 a.m. on Satur~ay, 20 March. The Government has already pointed out in its memorandum of 17 June 1988 that the procedures required under Netherlands law were followed. These proceduren are also in accordance with article 9 of the Covenant on Civil and Politic~l Rights. "The conclusion contained in the Public Prosecutor's letter ••. that [Mr. A.] resisted arrest is based upon the official reports drawn up under oath of office. "
Before considering any claims contained in a communication, the Human Rights Committe! must, in accordance with rule 87 of its provisional rules of procedure, decide whether or not it is admissible under the Optional Protocol.
The Committee has ascertained, as it is required to do under article 5, paragraph 2 (a), Qf the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.
Wi~h respect to the requirement of exhaustion of domestic remedies, the Committee notes lhat in respect of the author's allegations of a violation of article 7 of the Covenant, the author instituted civil proceedings against the officer of the Royal Military Police who allegedly maltreated him, which remain '?endlng. Furthermore, the State party has indicated the possibility of initiating tort proceedings against the Government. The author has not established that such proceedings would be a priori futile. Therefore, this part of the communication is inadmissible under article 5, paragraph 2 (b), of the Optional Protocol.
With respect to the alleged violation of article 9, para~raph 4, the Committee has taken note of the State party's clarification that pursuant to article 289, ·.aragraph 2, ~f the C~de of Civil Procedure, the aut~or could have called upon the ~resident of the dlstrict court at any time after ~is arrest on 19 March lY82. Considering that the author has Jot contested the S~ate party's clarification, and taking into account that he was released by order of a magistrate on 23 March 1982 (i.e. four days after his arrest), the Co~~ittee finds that the author has not substantiated his claim for purposes of admissibility.
With resrect to the alleged violation of article 10, paragraph 1, the C~mmittee notes that the author has not provided the relevant c~arj.fications requested in ~he Working Group's decision of 6 Apri~ 1988 and has thus fai~ed to adduce any facts to show that he was s~bjected to improper truatment during detention.
With respect to the author's allegation of n violation of article 14, paragraph 1, of the Covenant, the Committee observeR that the Covenant does not provide for the right to see another person criminally prosecuted. Accordingly, it finds that this part of the communication is inadmissible as incompatible with the provisions of the Covenant, pursuant to drticle 3 of the Optional Protocol.
The Human Rights Committee therefore decides: (8) The communication is inadmissible; (b) This decision shall be communicated to the State party allc to the author.