FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 49226/99 by Luis DE ARRIZ PORRAS against the Netherlands

The European Court of Human Rights ( First Section ) sitting on 18 January 2000 as a Chamber composed of

Mrs E. Palm, President , Mr J. Casadevall, Mr Gaukur Jörundsson, Mr R. Türmen, Mr C. Bîrsan, Mrs W. Thomassen, Mr R. Maruste, judges ,

and Mr M. O’Boyle, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 18 March 1999 by Luis De Arriz Porras against the Netherlands and registered on 29 June 1999 under file no. 49226/99;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Peruvian national born in 1937. He is represented before the Court by Ms A.E.M. Röttgering , a lawyer practising in Amsterdam.

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant is a retired senior diplomat. At the time of the events complained of he had no diplomatic status. On 27 April 1997, while in transit from Peru to Spain and travelling on two passports (one ordinary, the other a diplomatic one containing a Schengen visa), he was arrested at Amsterdam ( Schiphol ) airport after customs found a quantity of cocaine in excess of 23 kilograms in his luggage. The applicant was also found to be carrying a large sum of money in cash. The cocaine had been packed in parcels secured with adhesive tape. It appears from police reports that adhesive tape with which the applicant’s luggage had been secured was identical to that used for packing the cocaine. The applicant relinquished title to the cocaine and the packaging materials (including the tape), and these were destroyed.

The applicant was tried by the Regional Court ( Arrondissementsrechtbank ) of Haarlem , which on 14 August 1997 found him guilty of having intentionally imported cocaine and sentenced him to four years’ imprisonment. The applicant appealed.

The appeal was heard by the Court of Appeal ( Gerechtshof ) of Amsterdam on 17 December 1997 . The appeal was by way of a complete rehearing, as is prescribed by Netherlands law.

The applicant admitted before the Court of Appeal that before leaving Lima he had packed his luggage himself and secured it with adhesive tape. He had handed it to a luggage porter who had checked it in for him. The cocaine had been put into his luggage by persons unknown to him after the luggage had been checked in. The large sum of money was intended to set up a business in Spain.

The defence asked for the adhesive tape with which the cocaine had been packed to be examined for fingerprints, arguing that the absence of the applicant’s fingerprints would prove that the applicant had not handled the cocaine. This request could not be acceded to as the tape had been destroyed after the applicant had relinquished title to it. The defence then suggested that the prosecution be declared inadmissible on this ground. The defence further stated that persons unknown to the applicant had placed the cocaine in his luggage. It was suggested that this might conceivably have been the work of the Peruvian secret service, and a Ministry of Justice liaison officer should be detailed to make examinations in South America.

In its judgment, which was delivered on 29 December 1997 , the Court of Appeal held that it had normally to be assumed that a person who packed his own luggage was aware of its contents; although admittedly in certain circumstances this might not be so there was nothing to suggest in the present case that such circumstances were present. As to the adhesive tape, even if the absence of the applicant’s fingerprints could be established that would not affect the Court of Appeal’s finding that the applicant must have known that his luggage contained cocaine. As to the possibility that the applicant had been framed by the Peruvian secret service, the Court of Appeal found that the applicant’s statements were “merely of a general nature”, had not been “specified ( geconcretiseerd ) in any way” and had “in no way been related to his person”, so that it was unnecessary to order an investigation by a Ministry of Justice liaison officer. Further being of the opinion that the applicant had misused a diplomatic passport in the hope of avoiding luggage checks and that his explanation for the size of the sum of money was not substantiated, the Court of Appeal went on to find him guilty of having intentionally imported cocaine and sentenced him to inter alia five years’ imprisonment.

The applicant lodged an appeal on points of law to the Supreme Court ( Hoge Raad ). His counsel submitted two points of appeal.

On 3 November 1998 the Supreme Court gave judgment dismissing the applicant’s appeal.

COMPLAINTS

The applicant complains under Article 6 § 2 that the presumption of innocence was infringed in that the Court of Appeal reversed the burden of proof which is normally incumbent on the prosecution by imposing on him the obligation, which he found impossible to discharge, to prove that he was not and could not have been aware that persons unknown to him had hidden a significant quantity of cocaine in his luggage.

He also complains, under Article 6 § 1, that the Amsterdam Court of Appeal failed to entertain his arguments based on the destruction of the tape with which the cocaine had been packaged and that it refused to order investigations from which it might appear that the Peruvian secret services had framed him.

THE LAW

Article 6 §§ 1 and 2, in so far as relevant, provides as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ...

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3. ...”

1. The Court will address the applicant’s complaint under Article 6 § 2 of the Convention first.

The Court is of the opinion that the Amsterdam Court of Appeal did not, as the applicant alleges, operate an irrebuttable presumption of guilt contrary to that provision. Although the Court of Appeal noted that it had normally to be assumed that a person who packs his own luggage and takes it with him was aware of its contents, it had regard to the possibility that this might, depending on the circumstances, not be the case; however, in the applicant’s case it did not consider that such circumstances obtained. Accordingly, as did the French courts in the Salabiaku case, it “inferred from the ‘fact of possession a presumption which was not subsequently rebutted by any evidence of an event responsibility for which could not be attributed to the perpetrator of the offence or which he would have been unable to avoid’” (see the Salabiaku v. France judgment of 7 October 1988, Series A no. 141-A, § 30). Moreover, the Court of Appeal had regard to other factors, such as the applicant’s use of a diplomatic passport, which it considered to amount to a deliberate attempt to avoid detection.

Put differently, it would seem that the Court of Appeal duly weighed the evidence before it, assessed it carefully and based its findings of guilt on it; it therefore did not automatically rely on any presumptions (see the Pham Hoang v. France judgment of 25 September 1992, Series A no. 243, § 36).             

2. As to the complaint under Article 6 § 1 that the absence of any possibility to examine the tape with which the cocaine was packaged made it impossible for the applicant to prove his innocence through the absence of his fingerprints, the Court notes that the Court of Appeal considered this argument in the light of the other evidence available. The Court of Appeal found that even if the absence of the applicant’s fingerprints could have been established, it would not thereby have been proved that the applicant had necessarily been unaware of the contents of his luggage. This finding does not appear unreasonable or arbitrary and consequently is not reviewable by the Court.

3. As to the complaint under Article 6 § 1 of the Convention that the Court of Appeal refused to consider the possibility that the Peruvian secret services might have been involved in the matter, the Court notes that the Court of Appeal considered this defence also. It found that the applicant’s allegations were so vague that it was unnecessary to order an investigation by a Ministry of Justice official. This finding likewise does not appear unreasonable or arbitrary.

4. It follows from the above that the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Michael O’Boyle Elisabeth Palm Registrar President