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.