Information Note on the Court’s case-law No. 9
August 1999
Douiyeb v. the Netherlands [GC] - 31464/96
Judgment 4.8.1999 [GC]
Article 5
Article 5-1
Procedure prescribed by law
Clerical error in custody order: no violation
Article 5-4
Review of lawfulness of detention
Alleged failure of judge to examine lawfulness of police custody: no violation
Facts – A warrant for the applicant's arrest was issued on suspicion of contravening Article 250ter of the Criminal Code, which prohibits trafficking in persons. The applicant was duly arrested at his home by police officers who, according to the report, showed the warrant to the applicant. After the applicant had been questioned by the police, who had informed him of the subject matter of the questioning, the assistant public prosecutor ordered his detention. The custody order referred to Article 250 of the Criminal Code and mentioned "living off immoral earnings". The following day, the applicant was brought before an investigating judge. The prosecution requested the applicant's detention on remand, referring to Article 250ter of the Criminal Code. The applicant's lawyer requested the applicant's release, arguing that custody had been ordered on the basis of Article 250 of the Criminal Code, which refers to an offence for which, in his submission, custody could not be ordered. The investigating judge, finding that the custody had not been unlawful, ordered the applicant's detention on remand. The written order mentioned Article 250ter of the Criminal Code. The Regional Court later extended the detention, although the applicant was nevertheless released due to lack of space. He was subsequently acquitted.
Law – Article 5 § 1 (c): The Court observed that under Dutch law, pre-trial detention may be ordered in case of suspicion of an offence carrying a punishment of 4 years' imprisonment or more and the offences set out in Article 250ter and Article 250 of the Criminal Code can attract a sentence of that duration. Consequently, the Court considered that both provisions in principle offereed sufficient scope for detention in police custody. Noting the contents of the various documents relating to the proceedings (which had not been made available to the Commission), all of which mentioned Article 250ter, the Court found it established that the reference to Article 250 in the custody order was the result of a mere clerical error and considered that the applicant must have or ought to have been aware of this. It recognised that the reasons given by the investigating judge in rejecting the submissions of the applicant's lawyer did not contain any express acknowledgement that an error had occurred, but considered that when the matter was placed in its factual context the investigating judge had to be taken as having implicitly rejected the argument. Consequently, the Court concluded that the applicant's complaint was unfounded.
Conclusion: no violation (unanimously).
Article 5 § 4: The Court noted that the applicant had been brought before an investigating judge, who examined the lawfulness of his detention in police custody, his request for release and the prosecution's request for an extension of the detention. The applicant had therefore had access to proceedings by which the lawfulness of his detention in police custody was decided speedily by a court.
Conclusion: no violation (unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
Click here for the Case-Law Information Notes
Full & Egal Universal Law Academy