EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 31464/96

Abdelaziz Douiyeb

against

the Netherlands

REPORT OF THE COMMISSION

(adopted on 17 September 1998)

TABLE OF CONTENTS

                                                                                                                            Page

I. INTRODUCTION

            (paras. 1-16) .......................................... 1

A. The application

                        (paras. 2-4) ...................................... 1

B. The proceedings

                        (paras. 5-11) ..................................... 1

C. The present Report

                        (paras. 12-16) .................................... 2

II. ESTABLISHMENT OF THE FACTS

            (paras. 17-40) ......................................... 3

A. The particular circumstances of the case

                        (paras. 17-28) .................................... 3

B. Relevant domestic law

                        (paras. 29-40) .................................... 4

III. OPINION OF THE COMMISSION

             (paras. 41-66) ........................................ 10

A. Complaints declared admissible

                        (para. 41) ...................................... 10

B. Points at issue

                        (para. 42) ...................................... 10

C. As regards Article 5 para. 1 of the Convention

                        (paras. 43-60) ................................... 10

CONCLUSION

                        (para. 61) ...................................... 13

D. As regards Article 5 para. 4 of the Convention

                        (paras. 62-63) ................................... 13

CONCLUSION

                         (para. 64) ...................................... 13

E. Recapitulation

                        (paras. 65-66) ................................... 13

DISSENTING OPINION OF MR F. MARTINEZ ...................... 14

TABLE OF CONTENTS

                                                                                                                            Page

DISSENTING OPINION OF MR N. BRATZA, JOINED BY

MM. S. TRECHSEL, J.-C. GEUS,  MRS G.H. THUNE,

MM. C.L. ROZAKIS, I. CABRAL BARRETO, B. CONFORTI,

G. RESS, A. PERENIČ, C. BÎRSAN, P. LORENZEN,

K. HERNDL and M. VILA AMIGÓ ................................ 15

APPENDIX: DECISION OF THE COMMISSION AS TO THE

                        ADMISSIBILITY OF THE APPLICATION ................ 17

I. INTRODUCTION

1. The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2. The applicant is a Moroccan citizen, born in 1960 and resident  in Amsterdam.  He was represented before the Commission by Mr F. Panholzer , a lawyer practising in Amsterdam.

3. The application is directed against the Netherlands. The respondent Government were represented by their Agent, Mr R. Böcker , of the Netherlands Ministry of Foreign Affairs.

4. The case concerns the lawfulness of the applicant's detention in police custody. The applicant invokes Article 5 paras. 1(c) and 4 of the Convention.

B. The proceedings

5. The application was introduced on 1 March 1996 and registered on 13 May 1996.

6. On 21 May 1997 the Commission (Second Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.

7. The Government's observations were submitted on 24 July 1997.  The applicant replied on 14 August 1997. On 16 September 1997, the  Commission granted the applicant legal aid for the representation of his case.

8. On 10 March 1998 the Commission declared the application admissible.

9. The text of the Commission's decision on admissibility was sent to the parties on 17 March 1998 and they were invited to submit such further information or observations on the merits as they wished.

10. On 8 July 1998 the Second Chamber relinquished jurisdiction in the case to the Plenary Commission.

11. After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.  In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C. The present Report

12. The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:

MM S. TRECHSEL, President

J.-C. GEUS

M.P. PELLONPÄÄ

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

D. ŠVÁBY

G. RESS

A. PERENIČ

C. BÃŽRSAN

P. LORENZEN

K. HERNDL

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

13. The text of this Report was adopted on 17 September 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

14. The purpose of the Report, pursuant to Article 31 of the Convention, is:

( i ) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

15. The Commission's decision on the admissibility of the application is annexed hereto.

16. The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

17. Following an investigation into offences against public decency and complaints filed with the police, the assistant public prosecutor ( hulpofficier van justitie ), pursuant to Articles 54 and 55 of the Netherlands Code of Criminal Procedure ( Wetboek van Strafvordering , hereinafter "CCP"), issued on 26 February 1996 a warrant for the applicant's arrest on suspicion of having acted contrary to Article 250ter of the Netherlands Criminal Code ( Wetboek van Strafrecht , hereinafter referred to as "CC").

18. On the basis of this warrant, the police arrested the applicant on the same day at 13.05 hours and brought him to the police station. According to the formal police report on this arrest ( proces-verbaal van aanhouding ) of 26 February 1996, the applicant was provided with a copy of the arrest warrant. The formal police report did not mention at what time the applicant was provided with this copy.

19. Later that afternoon, the applicant was brought before the assistant public prosecutor, who ordered the applicant's detention in police custody ( inverzekeringstelling ) for a maximum of three days. No appeal lies against a custody order.

20. According to the wording of the custody order, the applicant's custody had been ordered at 15.00 hours on suspicion of living of immoral earnings ( koppelarij ) contrary to Article 250 CC and the applicant had been provided with a copy of the custody order immediately ( onverwijld ). The custody order did not contain an indication as to the exact time the applicant was provided with a copy of this order.

21. On 27 February 1996, the applicant was brought before the investigating judge ( rechter-commissaris ) in order to be heard and on the prosecution's request to order the applicant's detention on remand ( inbewaringstelling ). The applicant was assisted by his lawyer.

22. The applicant denied the suspicions against him, explaining:

[Translation]

"I only run errands for the girls. I know girls from Czechia , Lithuania, Russia and the Netherlands. I pick them up with the car and bring them home. I do so on their own request. I earn about 50 guilders per day with that."

In reaction to the public prosecutor's demand, the applicant stated:

[Translation]

"Everything breaks down with me, my marriage and my children. If my family becomes aware that I am involved in trafficking in women, they will kill me."

23. The applicant's lawyer submitted that the applicant had been placed in police custody on suspicion of having violated Article 250 CC, for which police custody cannot be ordered. He demanded the applicant's immediate release.

24. The investigating judge ordered the applicant's detention on remand, holding:

[Translation]

"I, investigating judge, inform the suspect, as I do not find the police custody unlawful, that as to the submissions - however well-founded in fact they may be - regard must be had to the nature of the infringed rule(s), the interest protected by such rule(s), the degree to which this interest may be considered as having been harmed and the interests of society concerned."

25. Following the prosecution's request for the applicant's further detention on remand ( gevangenhouding ), the Regional Court ( Arrondissementsrechtbank ) of Amsterdam, after having heard the applicant and noted the grounds on which the applicant's detention on remand had been ordered and having found these grounds still pertinent, on 5 March 1996 ordered the applicant's further detention on remand for a period of thirty days. On 6 March 1996, the applicant was released for lack of space for further detainees in any remand centre .

26. By judgment of 30 August 1996, the Regional Court of Amsterdam acquitted the applicant of the charges under Article 250ter CC which had been brought against him. On the same day, in a different set of proceedings concerning unrelated facts, the Regional Court of Amsterdam convicted him of unlawful possession of a fire arm and sentenced him to six weeks' imprisonment.

27. On 14 November 1996, the applicant filed a request under Article 89 CCP for compensation of damages suffered in respect of the time spent in pre-trial detention in respect of the charges for which he had been acquitted. Instead of seeking pecuniary compensation, the applicant requested the Regional Court to order the deduction of the time he had spent in pre-trial detention from the six weeks' imprisonment to which he had been sentenced in the other set of criminal proceedings.

28. In its decision of 25 April 1997, the Regional Court noted that the applicant had been taken into police custody on 26 February 1996 on suspicion of an offence under Article 250ter CC, that on 27 February 1996 the investigating judge had ordered the applicant's detention on remand and that he had been released for lack of space on 6 March 1996. Pursuant to Article 27 para. 2 CC and Article 90 para. 4 CCP, the Regional Court ordered that ten days be deducted from the execution of the applicant's sentence imposed on other grounds.

B. Relevant domestic law

29. According to Article 54 CCP, a public prosecutor is competent to order the arrest of a person suspected of having committed a criminal offence in respect of which pre-trial detention ( voorlopige hechtenis ) may be ordered.

30. Pursuant to Article 57 CCP, a public prosecutor or assistant public prosecutor is competent to order a person's detention in police custody, after having seen and heard that person, who is entitled to be assisted by a lawyer.

31. According to Article 58 CCP, a custody order can only be issued in respect of punishable offences for which pre-trial detention may be ordered. A custody order is only valid for a maximum of three days and may be prolonged once for a maximum period of three days. No appeal lies against a custody order.

32. Article 59a CCP requires that no later than three days and fifteen hours after being arrested, a suspect must be brought before an investigating judge in order to be heard. On that occasion the suspect may request the investigating judge, pursuant to Article 59a para. 4 CCP, to be released. Where the investigating judge finds the order for detention in police custody ( inverzekeringstelling ) unlawful, the investigating judge will order the immediate release of the suspect (Article 59a para. 5 CCP).

33. The notion of pre-trial detention ( voorlopige hechtenis ) in Dutch law does not include detention in police custody ( inverzekering-stelling ). It includes any form of pre-trial detention as from the first remand order ( inbewaringstelling ). Pursuant to Article 64 para. 1 CCP a first remand order is valid for a period of maximum ten days. Under Article 63 CCP, a remand order can only be issued by an investigating judge upon a request of the public prosecutor.

34. Article 61 CCP provides that where an arrested suspect is not detained in police custody under Article 57 CCP or is not brought before an investigating judge pursuant to Article 60 CCP for the purposes of a remand order, the arrested person is to be released immediately and in any event may not be detained for longer than six hours. For the purposes of this provision, the time between midnight and 09.00 hours is not counted. In order to identify suspects of offences in respect of which pre-trial detention may not be ordered a prolongation of this period by a maximum of six hours may be ordered by the public prosecutor under Article 61a CCP.

35. Although no direct appeal lies against a remand order, a person whose detention on remand has been ordered can, pursuant to Article 69 para. 1 CCP, seize the Regional Court requesting an order lifting the pre-trial detention ( opheffing voorlopige hechtenis ). Pursuant to Article 87 para. 2 CCP, an appeal against a rejection by the Regional Court of a first request to lift pre-trial detention may be lodged with the Court of Appeal ( Gerechtshof ).

36. Under Article 71 CCP, an appeal against an order for further detention on remand ( gevangenhouding ) lies with the Court of Appeal.

37. According to the established case-law of the Supreme Court ( Hoge Raad ), procedural flaws committed in respect of previous orders for pre-trial detention do not constitute independent grounds for dismissing an application for a subsequent category of pre-trial detention. A judge must examine for each category separately whether all conditions are fulfilled (cf. HR, 4 March 1975, NJ 1975, Nr . 241; HR, 10 November 1981, NJ 1982, Nr . 45; and HR, 7 October 1988, NJ 1989, Nr . 510). However, in deciding requests under Article 69 of the CCP, a judge may take procedural flaws into consideration as a relevant factor (cf. HR, 16 March 1990, NJ 1990, Nr . 500).

38. Article 67 CCP reads as follows:

[Dutch]

"1. Een bevel tot voorlopige hechtenis kan worden gegeven in geval van verdenking van:

a. een misdrijf waarop naar de wettelijke omschrijving een gevangenisstraf van vier jaren of meer is gesteld ;

b. een der misdrijven omschreven in de artikelen 132, 250bis, 285, eerste lid, 318, 321, 326, 326a, 326c, 395 en 417bis van het Wetboek van Strafrecht ;

c. de overtreding omschreven in artikel 432, onder 3°, van het Wetboek van Strafvordering ;

d. een der misdrijven omschreven in:

artikel 175, tweede lid, van de Wegenverkeerswet 1994;

artikel 27, tweede lid, van de Wet buitengewone bevoegdheden burgerlijk gezag ;

de artikelen 52, 53, eerste lid, en 54 van de Wet gewetensbezwaren militaire dienst ;

artikel 31 van de Wet op de kansspelen

artikel 11, tweede lid, van de Opiumwet ;

artikel 46 van de Wet toezich effectenverkeer 1995;

artikel 31, eerste en tweede lid, van de Wet wapens en munitie .

2. Het bevel kan voorts worden gegeven indien geen vaste woon - of verblijfplaats in Nederland van de verdachte kan worden vastgesteld en hij verdacht wordt van een misdrijf waarvan de rechtbanken kennis nemen en waarop , naar de wettelijke omschrijving , gevangenisstraf is gesteld .

3. De voorgaande leden van dit artikel vinden alleen toepassing wanneer uit feiten of omstandigheden blijkt van ernstige bezwaren tegen de verdachte ."

[Translation]

"1. An order for pre-trial detention can be issued in case of suspicion of:

a. an offence which, according to the law, carries a punishment of imprisonment of four years or more;

b. one of the offences defined in Articles 132, 250bis, 285 para. 1, 318, 326, 326a, 326c, 395 and 417bis of the Criminal Code;

c. the misdemeanour described in Article 432, under 3°, of the Criminal Code

d. one of the offences defined in:

Article 175 para. 2 of the Road and Traffic Act 1994;

Article 27 para. 2 of the Act on Extraordinary competences of civilian authorities;

Articles 52, 53 para. 1 and 54 of the Act on Conscientious Objections Military Service;

Article 31 of the Act on Games of Chance;

Article 11 para. 2 of the Opium Act;

Article 46 of the Stock- broking Control Act;

Article 31 paras. 1 and 2 of the Act on Arms and Ammunition.

2. The order can further be issued if no permanent address or place of residence of the suspect in the Netherlands can be established and he is suspected of an offence which the courts examine and which, according to the law, is punishable by imprisonment.

3. The previous paragraphs are only applied when it appears from the facts or circumstances that there are serious objections against the suspect."

39. Article 250 CC provides as follows:

[Dutch]

1. Wordt gestraft :

1°  met gevangenisstraf van ten hoogste vier jaren of geldboete van de vierde categorie , hij die het plegen van ontucht door zijn minderjarig kind, stiefkind of pleegkind , zijn pupil, een aan zorg , opleiding of waakzaamheid toevertrouwde minderjarige or zijn minderjarige bediende of ondergeschikte met een derde opzettelijk teweegbrengt of bevordert .

2°  met gevangenisstraf van ten hoogste drie jaren of een geldboete van de vierde categorie , hij die, buiten de gevallen genoemd onder 1 , het plegen van ontucht door een minderjarige wiens minderjarigheid hij kent of redelijkerwijs moet vermoeden , met een derde opzettelijk teweeg brengt of bevordert .

2. Indien de schuldige van het plegen van het misdrijf een gewoonte maakt , kunnen de gevangenisstraffen met een derde worden verhoogd ."

[Translation]

"1.

1°  Any person who intentionally causes or encourages his minor child, foster child or adopted child, his ward, a minor entrusted to him for care, education or supervision, or a servant or subordinate who is a minor, to commit an indecent act with another person, shall be liable to a term of imprisonment not exceeding four years or a fourth-category fine.

2°  Any person who intentionally causes or encourages a minor whom he knows or may reasonably be expected to know to be a minor to commit an indecent act with another person, other than in the cases defined under 1 , shall be liable to a term of imprisonment not exceeding three years or a fourth-category fine.

2. If the offender has made a profession or habit of committing the indictable offence, the terms of imprisonment may be increased by one third."

40. Article 250ter CC states as follows:

[Dutch]

"1. Als schuldig aan mensenhandel wordt gestraft met gevangenisstraf van zes jaren of geldboete van de vijfde categorie :

1° degene die een ander door geweld of een andere feitelijkheid of door bedreiging met geweld of een andere feitelijkheid dan wel door misbruik van uit feitelijke verhoudingen voortvloeiend overwicht of door misleiding tot prostitutie brengt , dan wel onder voornoemde omstandigheden enige handeling onderneemt waarvan hij of zij weet of redelijkerwijs moet vermoeden dat die ander daardoor in de prostitutie belandt ;

2° degene die een persoon aanwerft , medeneemt of ontvoert met het oogmerk die persoon in een ander land in de prostitutie te brengen ;

3° degene die een ander tot prostitutie brengt , dan wel ten aanzien van een ander enige handeling onderneemt waarvan hij of zij weet of redelijkerwijs moet vermoeden dat die ander daardoor in de prostitutie belandt , indien die ander minderjarig is.

2. Met gevangenisstraf van acht jaren of een geldboete van de vijfde categorie wordt gestraft :

1° mensenhandel door twee of meer verenigde personen ;

2° mensenhandel ten aanzien van een persoon die de leeftijd van zestien jaren nog niet heeft bereikt ;

3° mensenhandel , indien geweld of een andere feitelijkheid als bedoeld in het eerste lid, zaar lichamelijk letsel ten gevolge heeft .

3. Mensenhandel door twee of meer verenigde personen onder de omstandigheden , bedoeld in het tweede lid onder 2  or 3 , wordt gestraft met gevangenisstraf van tien jaren of geldboete van de vijfde categorie ."

[Translation]

"1. shall be guilty of trafficking in persons and liable to a punishment of six years' imprisonment or a fifth-category fine:

1°   any person who induces another person to engage in prostitution by means of violence or any other physical action or by means of threats of violence or of any other physical action or by misusing authority or influence derived from the actual state of affairs, or by means of deception, or who under any of these circumstances undertakes any action which he or she knows or may reasonably be expected to know will lead to the other person becoming engaged in prostitution;

2°  any person who recruits, takes with him or abducts any person with a view to inducing the latter to engage in prostitution in another country;

3°  any person who induces another person to engage in prostitution, or who, as regards this other person, undertakes any action which he or she knows or may reasonably be expected to know will lead to the other person becoming engaged in prostitution, if the other person is a minor.

2. shall be liable to eight years' imprisonment or a fifth-category fine:

1°  trafficking in persons, committed by two or more persons acting in concert;

2° trafficking in persons, where the victim is aged less than sixteen years;

3° trafficking in persons, if violence or any other physical action referred to in paragraph 1 results in serious bodily harm.

3. Trafficking in persons, committed by two or more persons acting in concert, under circumstances set out in paragraph 2 under 2° or 3°, shall be punishable by ten years' imprisonment or a fifth-category fine."

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

41. The Commission has declared admissible the applicant's complaints

- that his detention in police custody was unlawful; and

- that the investigating judge failed to examine the lawfulness of his detention in police custody.

B. Points at issue

42. The following points are at issue:

- whether there has been a violation of Article 5 para. 1 of the Convention;

- whether there has been a violation of Article 5 para. 4 of the Convention.

C. As regards Article 5 para. 1 of the Convention

43. Article 5 para. 1 (c) of the Convention reads as follows:

" Everyone has the right to liberty and security of person.  No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

c. the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;"

48. Submitting a copy of the warrant for the applicant's arrest, the Government argue that the applicant was aware as from his arrest that he was suspected of acts contrary to Article 250ter CC. This was stated on the warrant for his arrest and the applicant was provided with a copy thereof. This is supported by the fact that on the next day, when he was brought before the investigating judge the applicant explicitly referred to "trafficking in women" which is one of the offences defined in Article 250ter. Moreover, the investigating judge's order for the applicant's detention on remand remained unchallenged.

49. As regards the reference to Article 250 and not to Article 250ter CC in the order for the applicant's detention in police custody, the Government submit that this is to be seen as an evident typing error in that the police officer who typed out the order must have forgotten to add the suffix " ter " to the number of the Article and then included the term " koppelarij " which relates to Article 250.

50. The Government finally submit that, even if Article 250 CC would have formed the basis of the custody order, this provision offers sufficient scope for ordering detention in police custody in that pre-trial detention may be ordered for offences referred to in paragraph 1 under 1 , and paragraph 1 under 2  in conjunction with paragraph 2 of this Article of the Criminal Code.

51. Article 5 para. 1 of the Convention contains an exhaustive list of permissible grounds for deprivation of liberty which must be interpreted strictly (cf. Eur. Court HR, Lukanov v. Bulgaria judgment of 20 March 1997, Reports of Judgments and Decisions 1997-II, p. 543, para. 41). It must therefore be determined whether the applicant's detention in police custody was "lawful" within the meaning of Article 5 para. 1 of the Convention, including whether it was effected "in accordance with the law".

53. The Commission does not find it established that the applicant was provided with a copy of the warrant for his arrest which contained a reference to Article 250ter CC, before he was taken into police custody or before he was provided with a copy of the order for his detention in police custody.

54. However, the determination of this question is not relevant for the purposes of the present complaint as the legal basis for applicant's detention in police custody was the custody order issued on 26 February 1996 by the assistant public prosecutor and not the warrant for the applicant's arrest.

55. According to the wording of this custody order the applicant's detention in police custody was ordered on the basis of a suspicion of having acted contrary to Article 250 CC without any further specification apart from the qualification " koppelarij ".

56. The Commission notes that under Dutch law it is not possible to order pre-trial detention for offences against Article 250 para. 1 under 2  CC given the maximum penalty it attracts, unless it concerns a situation in which the offender has made a profession or habit of committing the offence referred to in this provision which entails an increase of the maximum penalty which may be imposed (see para. 50).

58. The Commission accepts that the reference to Article 250 CC in the custody order instead of Article 250ter CC must have been caused by a clerical mistake. This flaw was brought to the attention of the investigating judge on 27 February 1996 by the applicant's lawyer arguing that the custody order was therefore unlawful. However, the investigating judge merely stated that she found the applicant's detention in police custody not to be unlawful without giving any further indication as to the statutory provision on which the applicant's detention in police custody was in fact based.

59. The investigating judge did not acknowledge the existence of a clerical mistake in the custody order nor did the investigating judge correct this flaw but left this crucial point as regards the lawfulness of the applicant's detention in police custody undetermined. Moreover, also in the subsequent proceeding before the Regional Court concerning the applicant's further detention on remand this point remained undetermined. The Regional Court merely noted the grounds on which the applicant's detention on remand had been ordered by the investigating judge and found these grounds still pertinent.

60. In these circumstances, the Commission is of the opinion that the applicant's detention in police custody cannot be considered as being "in accordance with a procedure prescribed by law" and therefore did not satisfy the conditions of Article 5 para. 1 of the Convention.

CONCLUSION

61. The Commission concludes, by 18 votes to 14, that there has been a violation of Article 5 para. 1 of the Convention.

D. As regards Article 5 para. 4 of the Convention

62. Article 5 para. 4 of the Convention reads as follows:

"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."

63. Having found a violation of Article 5 para. 1 of the Convention, the Commission is of the opinion that no separate issue arises under Article 5 para. 4 of the Convention.

CONCLUSION

E. Recapitulation

65. The Commission concludes, by 18 votes to 14, that there has been a violation of Article 5 para. 1 of the Convention (para. 61).

66. The Commission concludes, by 18 votes to 14, that no separate issue arises under Article 5 para. 4 of the Convention (para. 64).

        M. de SALVIA                                                                S. TRECHSEL

         Secretary                                                                              President

      to the Commission                                                          of the Commission

(Or. Français )

OPINION DISSIDENTE DE M. F. MARTINEZ

J'ai voté contre la violation de l'article 5 de la Convention.

La majorité de la Commission admet que l'ordre de détention du requérant se référait à l'article 250 CC par erreur au lieu d'avoir frappé l'article 25ter, mais ils ont nonobstant conclu à une violation.

Je pense que de ce fait la Commission ne tient pas compte de la jurisprudence de la Cour dans le cas GEA CATALAN c/. Espagne , arrêt du 10 février 1995. Dans cet arrêt "la Cour estime , avec le Gouvernement , que la discordance dénoncée résultait de toute évidence d'une simple erreur matérielle , commise lors de la frappe des conclusions du ministère public et reproduite ensuite à différentes reprises"; et la Cour conclut que cette erreur de frappe ne constitue pas de violation.

(Or. English)

DISSENTING OPINION OF MR N. BRATZA, JOINED BY MM.

S. TRECHSEL, J.-C. GEUS,  MRS G.H. THUNE, MM. C.L. ROZAKIS,

I. CABRAL BARRETO, B. CONFORTI, G. RESS, A. PERENIČ, C. BÎRSAN,

P. LORENZEN, K. HERNDL and M. VILA AMIGÓ

I regret that I am unable to agree with the majority of the Commission that there has been a violation of Article 5 para. 1 of the Convention in the present case.

The warrant for the applicant's arrest which was issued on 26 February 1996 correctly specified the statutory provision which the applicant was suspected of having violated as Article 250ter of the Netherlands Criminal Code.  This Article prohibits the trafficking in persons for the purpose of prostitution and, since an offence under the Article is punishable by a term of imprisonment of more than four years, pre-trial detention may be ordered and a custody order issued (see Articles 58 and 67 of the Code).  The precise time at which the applicant was served with a copy of the arrest warrant does not appear from the police report; nor does it appear whether the arrest warrant or the custody order was served first.  However, the police report confirms that the applicant was provided with a copy of the warrant and this is not disputed by the applicant.

It is also not disputed that, when the lawfulness of the applicant's detention in police custody was raised on the following day before the investigating judge, the applicant was provided with a copy of the application for his detention on remand from which it was clear to him that he was suspected of an offence under Article 250ter - a fact borne out by the applicant's own statement to the investigating judge that his family would kill him if they became aware that he had been involved in trafficking in women.

The sole basis for the applicant's contention that he was unlawfully detained in police custody was that, in contradiction to the arrest warrant, the detention order erroneously referred to his being detained on suspicion of living on immoral earnings contrary to Article 250 of the Criminal Code.  Since paragraph 1.1  of that Article clearly had no relevance to the applicant's case and since, in the absence of aggravating circumstances which were never alleged, no pre-trial detention was permitted for an offence under paragraph 1.2  of the Article, it is argued that the applicant's detention in police custody was unlawful from the outset.

This argument is in my view without substance.  It is, I consider, clear that the reference in the detention order to Article 250 was the result of a mere clerical error, committed when the order was typed up.  This much is expressly accepted by the majority of the Commission.  The majority, nevertheless, consider this error to have been fatal to the lawfulness of the applicant's detention.  At the heart of the reasoning of the majority is the fact that the investigating judge did not acknowledge the existence of the clerical error or correct the error, but merely found the applicant's detention in police custody to be lawful without giving any further indication as to the statutory provision on which his detention was in fact based.  In addition, reliance is placed on the fact that the Regional Court likewise left this question undetermined in the proceedings concerning the applicant's further detention on remand.

In my view, this approach is excessively formalistic.  It is true that the statement of the investigating judge which is set out in paragraph 24 of the Report is, at best, obscure and that it contains no express acknowledgement that an error occurred in the detention order.  Nevertheless, when viewed in the context of the hearing to extend the detention, it seems to me to be at least implicit in the finding that the police custody was not unlawful, that the investigating judge treated the applicant as being detained for an offence under Article 250 ter rather than under Article 250.

I do not underestimate the importance under Article 5 of the Convention of adherence to the procedures prescribed  by domestic law when effecting the arrest or detention of an individual.  Nevertheless, where, as here, the error is a clerical one and the detainee is left in no doubt as to the offence of which he is suspected and which forms the  basis for his detention, I do not consider that a finding of a violation of Article 5 is justified.  I would only add that the applicant has not shown that he suffered any prejudice in consequence of the clerical error.  As noted in paragraph 28 of the Report, the applicant was given full credit for the time spent in custody in February 1996 when sentenced after conviction for unrelated offences.

The applicant further complains of a violation of Article 5 para. 4 of the Convention on the grounds that the investigating judge failed to examine the lawfulness of his detention in police custody.  For the reasons given above, I consider that this complaint is similarly without substance and consider that there was in the present case no violation of Article 5 para. 4.