Public Prosecutor v. Sebastien Nzapali

Court	Supreme Court of the Netherlands, The Netherlands
Case number	S 07/12112
Decision title	Judgment
Decision date	1 December 2009
Parties	Public Prosecutor Sebastien Nzapali
Categories	Torture
Keywords	Torture; universal jurisdiction
Links	Judgment (in Dutch) Judgment (in English)
Other countries involved	Belgium Congo

Summary

Sebastien Nzapali, aka “King of Beasts”, was born in 1952 in the Democratic Republic of Congo (DRC). Nzapali was commander of the Garde Civile in 1991 during the regime of President Mobutu Sese Seko in the territory of the DRC (before known as Zaire). During that time, Nzapali gave orders for the arrest of a customs officer working at the port of Matadi, his detention and for his subsequent torture (he was beaten with a whip while he was half-naked).

After the fall of President Mobutu in 1997, Nzapali fled to the Netherlands. In September 2007, the District Court of ‘s Hertogenbosch sentenced Nzapali to ten years' imprisonment after being found guilty on a range of charges, including self-enrichment and unlawful arrests.

Procedural history

Investigations against Sebastien Nzapali began when some of his former victims denounced him to the Dutch police.

In September 2003, Nzapali was arrested.

In February 2004, inquiries were made in the Democratic Republic of Congo (DRC) to gather evidence for the trial against Nzapali.

On 24 March 2004, the trial commenced.

On 7 April 2004, the District Court of Rotterdam found Sebastien Nzapali guilty of participation in the commission of torture under the 1984 Convention Against Torture and sentenced him to two-and-a-half years’ imprisonment (in English here).

When the criminal proceedings were concluded and Nzapali was detained, the Dutch Minister for Immigration and Integration issued a decision on 27 September 2004, declaring him an ‘undesirable alien’ and hence subjected him to an exclusion order (ongewenstverklaring).

The same Minister decided that, once Nzapali has served his sentence, he could not be sent back to the DRC as there would be a risk for him to be exposed to treatment incompatible with Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), which stipulates that no one shall be subjected to torture, inhuman or degrading treatment, or punishment.

Nzapali appealed his declaration as ‘undesirable alien’. However, on 27 May 2005, the Minister declared the appellant’s objection to this decision unfounded.

On 20 February 2006, the District Court of The Hague declared the appellant’s application for judicial review of the decision taken on 27 May 2005 unfounded.

Nzapali was arrested on 9 May 2006, because staying in the Netherlands when being declared an ‘undesirable alien’ constitutes a criminal offence.

On 7 August 2006, the Administrative Jurisdiction Division of the Council of State (Raad van State) upheld the contested judgment issued on 20 February 2006 (in English, see here). Therefore, a catch-22 situation arose: Nzapali had to leave the Netherlands, but he could not be sent back to the DRC or another country due to his criminal past.

On 21 September 2007, the Court of Appeal of ‘s-Hertogenbosch ruled, in response to the invoked force majeure-appeal by the Defence, that it had not appeared in court records that Nzapali had taken the maximum effort to comply with his duty to leave the country. Therefore, the force majeure defence could not be invoked with success.

Since 2008, a case is pending before the European Court of Human Rights (ECtHR) concerning Articles 3, 8 and 13 of the ECHR. The Court has requested the Dutch government to provide more information on the matter.

Related developments

During the proceedings at the Supreme Court of the Netherlands, it became apparent that Nzapali had obtained a valid residence permit in January 2008 in Belgium. It is not yet clear what effect this development in Belgium may have on his status either in the Netherlands or before the ECHR.

Legally relevant facts

In 1996, during the Mobutu Sese Seko regime, Nzapali, alias “Roi des Bêtes” (King of the Beasts), was a commander of the Garde Civile when he allegedly raped and tortured opponents of the regime in Zaire (now the Democratic Republic of the Congo). When the regime changed and a rebel group under the leadership of Laurent Kabila took power in May 1997, Nzapali and his family were forced to hide.

In 1998, Nzapali managed to flee to the Netherlands and applied there for political asylum. The asylum was not granted since there were reasons to believe that Nzapali was guilty of acts as described in Article 1(F) of the Convention Relating to the Status of Refugees, which stipulates that the Convention does not apply to someone who has committed a crime against peace, a war crime, a crime against humanity, or a serious non-political crime.

In the first case of its kind to be tried under universal jurisdiction in the Netherlands, Nzapali was alleged to have ordered his subordinates/bodyguards to arrest a customs officer, to take him into custody, and finally to systematically torture him over the course of multiple days.

Core legal questions

Did the Court of Appeal err in dismissing Nzapali’s defence relying on circumstances beyond a person’s control?

Specific legal rules and provisions

Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, Council of Europe:

Article 3 - Prohibition of torture

Convention and Protocol Relating to the Status of Refugees, 1951, UN General Assembly:

Article 1(F) - Definition of the term “refugee”

Court's holding and analysis

The Netherlands Supreme Court found on 1 December 2009 that the judgment of the ‘s-Hertogenbosch Court of Appeal was inadequately motivated and therefore ordered a re-trial.

In particular, the Court held that the Court of Appeal’s dismissal of the Defence relying on circumstances beyond a person’s control was based solely on the lack of evidence that ‘the defendant had made an effort to fulfil his obligation to leave the country between the date on which he learned that he had been declared an undesirable alien and his arrest for the offence in question on 9 May 2006’ (para. 2.3.2). According to the Court, this was not a sufficient ground for dismissal. The Court of Appeal was expected to explain ‘what efforts the defendant could have made and whether such efforts, with or without the support of the Government of the Netherlands, could reasonably have been expected to have been successful’ (para. 2.6).