DE ARRIZ PORRAS v. THE NETHERLANDS
Inadmissible
Elisabeth Palm;Gaukur Jörundsson
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 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.