Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 31464/96

by Abdelaziz DOUIYEB

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 10 March 1998, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 1 March 1996 by

Abdelaziz DOUIYEB against the Netherlands and registered on 13 May 1996

under file No. 31464/96;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

24 July 1997 and the observations in reply submitted by the

applicant on 14 August 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Moroccan national, born in 1960, and resides

in Amsterdam. He is represented by Mr F. Panholzer, a lawyer practising

in Amsterdam.

The facts of the case, as submitted by the parties, may be

summarised as follows.

1. Particular circumstances of the present case

Following an investigation into offences against public decency

and complaints filed with the police, the assistant public prosecutor

(hulpofficier van justitie) 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).

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 report did not mention at what

time the applicant was provided with this copy.

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.

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 of the Criminal

Code and that 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.

On 27 February 1996, the applicant was brought before the

investigating judge (rechter-commissaris) in order to be heard on the

lawfulness of his detention in police custody and on the prosecution's

request to order the applicant's detention on remand

(inbewaringstelling). The applicant was assisted by his lawyer.

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."

The applicant's lawyer submitted that the applicant had been

placed in police custody on suspicion of having violated Article 250

of the Criminal Code, for which police custody cannot be ordered. He

demanded the applicant's immediate release.

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."

No appeal lies against a remand order.

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, after having 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.

By judgment of 30 August 1996, the Regional Court of Amsterdam

acquitted the applicant of the charges under Article 250ter of the

Criminal Code 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.

On 14 November 1996, the applicant filed a request under

Article 89 of the Code of Criminal Procedure (Wetboek van

Strafvordering, hereinafter "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.

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 of the Criminal Code,

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 of the

Criminal Code and Article 90 para. 4 of the Code of Criminal Procedure,

the Regional Court ordered that ten days be deducted from the execution

of the applicant sentence imposed on other grounds.

2. Relevant domestic law

Article 27 para. 2 of the Criminal Code reads:

[Translation]

"In the calculation of the time to be deducted ,

the first day of police detention counts as a full day and the

day on which it has ended is not taken into consideration."

Article 250 of the Criminal Code provides as follows:

[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."

Article 250ter of the Criminal Code states as follows:

[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's 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's 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."

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.

According to Article 58 CCP, a custody order can only be issued

in respect of punishable offences for which pre-trial detention

(voorlopige hechtenis) is allowed. A custody order is only valid for

a maximum of three days and may be prolonged once for a maximum period

of three days.

Pursuant to Article 59a para. 4 CCP, a suspect may request the

investigating judge to be released when the latter hears the former in

connection with the detention in police custody (inverzekeringstelling)

as required by Article 59 CCP. Under Article 59a para. 5 CCP, the

investigating judge orders the immediate release where the custody

order is found to be unlawful.

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 ten days maximum.

Article 67 CCP reads as follows:

"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 authority;

Articles 52, 53 para. 1 and 54 of the Act 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 in the Netherlands of the suspect 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

(ernstige bezwaren) against the suspect."

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).

Under Article 71 CCP, an appeal against an order for further

detention on remand (gevangenhouding) lies with the Court of Appeal.

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).

COMPLAINTS

The applicant complains that his detention in police custody was

contrary to Article 5 paras. 1 (c) and 4 of the Convention and that the

investigating judge unjustly failed to examine the lawfulness of his

detention in police custody on the basis of the relevant legal

provisions, which could only have resulted in a finding of unlawfulness

and thus in the applicant's release.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 1 March 1996 and registered on

13 May 1996.

On 21 May 1997 the Commission decided to communicate the

application to the respondent Government.

The Government's written 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.

THE LAW

The applicant complains that his detention in police custody was

contrary to Article 5 paras. 1 (c) and 4 (Art. 5-1-c, 5-4) of the

Convention and that the investigating judge unjustly failed to examine

the lawfulness of his detention in police custody on the basis of the

relevant legal provisions.

Article 5 (Art. 5) of the Convention, insofar as relevant, reads:

"1. 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;

...

4. 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."

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 of the Criminal

Code. 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.

As regards the reference to Article 250 and not to Article 250ter

of the Criminal Code 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.

The Government finally submit that, even if Article 250 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.

The applicant submits that, in the circumstances of the present

case, Article 250 of the Criminal Code did not offer sufficient scope

for his detention in police custody as the Government's reference to

Article 250 para. 1 under 1° concerns encouragement of indecent acts

in respect of minors under the care or authority of the suspect whereas

it was clear to the applicant that there was no question of involvement

of his own children and Article 250 para. 1 under 2° concerns

aggravating circumstances which were never adduced in the present

proceedings.

The applicant confirms that he received a copy of the warrant for

his arrest but submits that it is unclear which document he received

first, i.e. the warrant for his arrest or the order for his detention

in police custody. In his opinion he was entitled to rely on the

wording of the order for his detention in police custody.

When the lawfulness of his detention in police custody was

reviewed the next day before the investigating judge, he was provided

with a copy of the application for his detention on remand. He then

understood what he was suspected of and reacted to this suspicion

before the investigating judge. In the applicant's opinion the issue

is not whether a person understands later why he was arrested, but

whether he was rightly detained in police custody and whether at that

moment he understood the reasons for the detention in police custody.

The applicant refutes the Government's argument that the

reference to Article 250 of the Criminal Code in the order for his

detention in police custody is the result of a clerical error. He

submits that this is highly improbable as the word "koppelarij" is an

archaic term which in practice is only used in a criminal law context.

Any person who types that word therefore does so deliberately.

The Commission notes at the outset that, following the

applicant's acquittal by the Regional Court on 30 August 1996 and his

subsequent request for compensation under Article 89 CCP, the Regional

Court ordered the deduction of the time the applicant had been deprived

of his liberty from the prison sentence imposed on the applicant in

other criminal proceedings.

In these circumstances the question could arise whether the

applicant can still claim to be a victim within the meaning of

Article 25 (Art. 25) of the Convention.

The Commission recalls that a violation of the Convention is

conceivable even in the absence of prejudice for the applicant (cf.

No. 13420/87, Dec. 7.9.89, D.R. 62, p. 258; and No. 18997/91,

Dec. 28.2.94, D.R. 76, p. 65). The Commission further recalls that

someone who has received adequate redress at the domestic level for the

alleged violations of the Convention cannot claim to be a victim of

those violations (cf. No. 21649/93, Dec. 8.9.93, D.R. 75, p. 257).

The Commission notes that the decision to deduct the time the

applicant has been deprived of his liberty in the present case was

solely based on his acquittal and was not based on any finding that

this deprivation of liberty was unlawful. The applicant can, therefore,

still claim to be a victim within the meaning of Article 25 (Art. 25)

of the Convention as regards his complaints under Article 5 (Art. 5)

of the Convention.

As to the substance of the complaints raised in the light of the

parties' submissions, the Commission considers that the application

raises issues of fact and law requiring an examination of the merits.

It follows that the application cannot be regarded as manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention. No other grounds for declaring the application inadmissible

have been established.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION ADMISSIBLE without prejudging the merits

of the case.

M.-T. SCHOEPFER J.-C. GEUS

Secretary President

to the Second Chamber of the Second Chamber

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DOUIYEB v. THE NETHERLANDS

DOUIYEB v. THE NETHERLANDS

LEXI