CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 mars 1998

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          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 <from a sentence>,      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.    <The following persons shall be punished;>      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.   <The following persons> 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.    <The following persons> 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