Violating the right to equality before courts by retroactive application of legislation amending early release from prison

Facts

The author of the communication is a national of the Netherlands. In June 2003, he was arrested on suspicion of involvement in a murder and importing drugs, and was convicted and sentenced to 18 years of imprisonment. At the time of sentencing, the Criminal Code of Netherlands stipulated that convicted persons could be released after serving two-thirds of their sentence. In July 2008, the system was replaced by a conditional system, wherein release was made subject to the condition that convicts would not commit a criminal offence before the end of the probation period. The Act was not applicable for those convicted before its entry into force, except those individuals who had more than five years left in their sentence when the Act entered into force and would thus still be serving their sentence five years after its entry into force. In 2015, when on custodial leave, the author was arrested and charged for being an accomplice in transporting drugs, and was sentenced to a term of six years. His early release was refused with no possibility for appeal, resulting in him having to serve the rest of his 18-year sentence till 2023. The author claims his rights under articles 15(1) (retroactive effect, heavier penalty than necessary), 26 (right to equality), 14(5) (equal before courts) of the Covenant were violated.

Admissibility

The State party submitted that the current system of conditional release meant conditions could be attached to the early release of a prisoner, and that if those conditions were not met, the release may be rescinded. It also noted that an application for denial of early release could be submitted in cases of serious misbehaviour under the old system as well. The State party argues that when the public prosecutor rejected the early release request, the author had the option to complain to the district court, which he did not do, therefore he failed to exhaust all domestic remedies. It argued that the  decision to deny early release was intended to prevent repeat offences, and not to impose a higher penalty as the author was due to complete his original sentence. Further, it argued that the new law did not have retroactive effect but merely did not have immediate effect, as the old law was allowed to continue for five years after the entry into force of the new law, for reasons of practicability. As the misbehaviour of the author during parole and in prison led to the denial of his early release, this was claimed not to  constitute discrimination. The author admitted that he did not approach the district court as the court had previously held that the new law did not violate the State party’s human rights obligations similar to article 15.

The Committee noted that the author did not complain to the district court and did not argue in lower courts his claims regarding the principles of legality and non-discrimination. As a result, it held the claim under article 15 are inadmissible due to non-exhaustion of domestic remedies. Regarding claims under article 14(5), the Committee noted that the right to appeal related to a criminal charge was not related to appeal for the denial of parole. It resultantly concluded that this part of the claim is  inadmissible rationae materiae. As regards the article 26 claim, the author failed to demonstrate how he suffered an unreasonable disadvantage, given that he had not received a new conviction or new penalty and had been denied release solely due to his misbehaviour. He had failed to show that the application of domestic law was arbitrary or amounted to a manifest error or denial of justice. Therefore, the Committee considered this claim and therefore the entire communication inadmissible.

By: Smrithi Ramakrishnan