Dutchman, indicted for rape, asks for Constitutional protection

A man facing indictment for rape and fraud has filed a Constitutional application, claiming that his human rights had been breached during the course of the criminal proceedings against him.

34-year old Johan Stellingwerf, had been accused of the rape of his former girlfriend and defrauding her out of €25,000 in June 2013. 

Stellingwerf is arguing that as the supposed victim had withdrawn the criminal complaint she had filed against him for he alleged rape, she should not have been allowed to reinstate them two days later, after a change of heart.

In an application filed earlier this week against the Attorney General and the Commissioner of Police, the Dutch complainant’s lawyer Jason Grima quoted the former Chief Justice and revered authority on Criminal Law, Prof.  Anthony Mamo, insisting that "the waiver [of proceedings], once made, is irrevocable and it can be pleaded by the defendant in bar of the action or the proceedings".

There was no doubt that the criminal complaint, once waived, could not be revived in any way. Failure to do so would lead to the undermining of the legal certainty expected of criminal proceedings and opened the door to abuse, the lawyer said.

The complainant is alleging that the police had failed to notify him that the criminal complaint against him had been withdrawn until after the court of magistrates had decreed that there was sufficient prima facie evidence for his indictment.

Stellingwerf also alleged that his right to justice within a reasonable time had been breached by the proceedings, as the compilation of evidence against him had been going on or two years and that the “absolute” decision that the case be conducted behind closed doors was excessive.

The accused's bail conditions had made him unable to visit his elderly mother, who is suffering from palliative cancer, and it was only after making numerous submissions in this regard, was he granted leave to visit her - and even then under restrictive conditions.

There was no doubt that the criminal complaint, once waived, could not be revived in any way and the failure to adhere to this doctrine would lead to the undermining of the legal certainty expected of criminal proceedings and opened the door to abuse, the defence said, alleging that the police had failed to notify him that the criminal complaint against him had been withdrawn until after the court of magistrates had decreed that there was sufficient prima facie evidence for his indictment. 

It noted that it was an increasingly common practice for courts of criminal inquiry to issue such decrees at too early a stage in the proceedings, before it is able to fully appreciate the nature of the case. Once the prima facie decree is given, there is no way for the accused to halt the proceedings, even if the compilation of evidence continues after the decree. This circumstance denied the accused access to a practical and effective remedy, argued Grima.

Stellingwerf also alleged that his right to justice within a reasonable time had been breached by the proceedings, as the compilation of evidence against him had been going on for two years and that the “absolute” decision that the case be conducted behind closed doors was excessive.

He requested the court order that he be compensated for the alleged multiple breaches to his fundamental human rights.