Van Alphen v.
Netherlands
FACTS:
1. Van Alphen was a solicitor and residing in Hague, Netherlands
2. He claims to be a victim of a violation by the Netherlands of Art 9 pars 1 to 5, Art14, par 3 and Art17 of the
ICCPR.
3. Arrested on 5 December 1983 – suspicion of being an accessory or accomplice to the offence of forgery or having
procured the offence of forgery.
4. Having the intentional filing of false income tax returns for the years 1980 to 1981.
5. He remanded for a maximum of six days of the examining magistrate (he cannot contact his family but only his
legal representative) – Interest of criminal investigation (Van Alphen did not appeal)
6. after having heard the authority but after hearing van alphen the district court of Amsterdam decided to be kept
in custody for maximum of 30days.
7. Examining magistrates in the Netherlands may also take an umber of measures that restrict the freedom of
suspects in a criminal investigation. (ART 225 par 1) – CrimProcedure with conjunction with Art 132 of the Prison
Rules. It empowers the examining magistrates to impose restrictions on a suspect’s correspondence or family.
8. The C.A considered the ength of van alphen’s detention was in relation to his consistent of pleading of his
professional obligation.
9. Van alphen contends that his arrest and detention were arbitrary and therefore violation of art 9 pars 1 to 4 of
the ICCPR.
10. No exact nature of the charges as regards to the search of his office and home.
11. To compensate for his unlawful detention (Art 9, par 5 ICCPR)
12. Coercive measures seriously affected his professional reputation and his social position, and submits that they
constituted arbitrary and unlawful interference with his privacy and family life, his correspondence, as well as an
unlawful attack on his honor and reputation.
STATE CONTENTION:
1. Alphen did not exhaust his domestic remedies; he invokes substantial rights of the ICCPR
2. The state contends that the author may apply for interlocutory injunction based on his claim but he did not apply
hereof.
3. Substantial rights of the ICCPR should be invoke in the course of domestic judicial proceedings before petitioning
in the international court.
4. Art 9 par 5 is not applicable to alphen case because he was suspected of having committed criminal offences
5. The author did not appeal for the prolonged proceedings in his case before the District Court
6. Length of the detention – the applicant continued to invoke confidentiality despite that the interested party had
released him from his obligations in this respect – the importance of the criminal investigation necessitated
detaining the applicant for reasons of accessibility (ART 9 par 1 not violated)
7. Author was informed of the reasons for his arrest and detention (art 9 par 2 not violated)
8. During his pre-trial detention, the author was heard on repeated occasions by the examining magistrate and the
district court of Amsterdam in connection with the request of the public prosecutor for an extension of the pre-
trial detention (Art 9 pars 3 to 4 not violated)
9.
ISSUES:
1.) Whether the detention from dec 5 1983 to feb 9 1984 was arbitrary
and in breach of Article 9(1) of the International Covenant on Civil and Political Rights (‘ICCPR’), if the person refused to
answer questions due to his obligation as a lawyer to maintain client confidentiality, even though that duty had been
waived by the relevant client.
Whether the author (van Alpen) had exhausted domestic remedies when he failed to raise alleged breaches of specific
articles of the ICCPR before the domestic court.
RULING:
1.) The committee has examined the reasons for the nine week prolonged detention of the author. The committee
observes that the privilege that protects a lawyer – client relationship belongs to the tenets of most legal systems. (In
this case the client withdraw the duty of confidentiality freed from his duty and responsibility as a lawyer)
The arbitrariness is not equated with against the law but broadly includes elements of inappropriateness, injustice
and lack of predictability.
Lawful arrest not only lawful but reasonable in all the circumstances. Custody must be necessary in all circumstances.
The prolonged detention is because alphen still invokes his confidentiality despite that his client already withdraw his
duty and responsibility as regards to the confidentiality. – Importante yung detention sa criminal investigation for the
reason of accessibility. The Committee finds the facts as submitted disclose a violation of art 9 par 1
-The committee is preclude from considering claims which had not been made with respect to the local remedies that
had not been exhausted.
- Compensation was not adjudicated without undue delay.
- Authors are not reqd to invoke specific substantive rights by the covenant
-author could file claim for compensation – he filed so it cannot be said that the author failed in the course of
proceedings to invoke substantive rights protected by the covenant.
-Committee concludes that there is no reason to review its decision of 29 March 1989 of the alleged violations of articles
9 and 17.
Detention of alphen is compliance with the law of Netherlands
Committee considers the facts as submitted by the author that the search of the author’s home and office and seizure of
documents as well ass the dropping of the public prosec of charges against the author reveals the elements of
inappropriateness, injustice and lack of predictability – equate to arbitrary detention.
Committee must base its views solely on the written information at hand. Netherlands-Court of Appeals has no position
in ascertaining facts which should have essential weight for the purpose of regarding the detention of arbitrary.
MR. Nisuke Ando (Individual Opinion)
Unable to convince myself to agree to the committee’s view that the facts as submitted reveal the elements of
inappropriateness, injustice and lack of predictability thus making the author’s detention arbitrary.
