A Dutch man accused of raping his former partner and defrauding her €25,000 has filed a Constitutional application claiming that the criminal proceedings against him had breached his fundamental rights.

Johan Stellingwerf, who is now 34, had been arraigned before a magistrates court in June 2013 and indicted with five charges. 

The defendant is basing his argument on the fact that the victim had dropped a criminal complaint she had filed against him claiming rape, only to have a change of heart two days later when she instructed the police to proceed with the case. 

The defence is claiming that in this case, two of the charges related with rape should have been dropped as they had become "extinct" before the case even started in court.

In this respect, reference was made to the annotations made by the late Chief Justice Anthony Mamo who had said that "the waiver, once made, (and where necessary, duly accepted) is irrevocable and it can be pleaded by the defendant in bar of the action or the proceedings".

The defence said that such words left no doubts, that once the criminal complaint had been waived, the criminal action would become extinct and could not be revived in any way.

Otherwise this could lead to an "absurd" situation which could take away the legal certainty expected during a criminal proceeding, and even fuel abuse, the defence said.

In his application ,the man pointed out that in spite of this the police had forged ahead with their case and he should not have been made to respond to charges that had been nullified.

The defence also argued that the police should have alerted its client that the criminal complaint in question had been dropped, saying it only got to know about this after the court had declared that there was enough prima facie evidence for the man to be indicted. 

The prosecution pulled the rug out from under the defence through its lack of disclosure on this matter

Had the prosecution notified the defence in time, the accused could have raised this point and ask the court to rule on this matter. Unfortunately the prosecution pulled the rug out from under the defence through its lack of disclosure on this matter, the application said.

The defendant also complained that court proceedings had taken too long since the compilation of evidence had been going on for two years. Consequently the right for a hearing in a reasonable time had been violated, the defence said. 

The man also contested the court's decision to order that all proceedings be heard behind closed doors, saying the complete ban from reporting the case in the media was not necessary as some of the testimony was purely based on points of law. 

In view of this, the defendant claimed that articles eight and 13 of the European Convention of Human Rights had been violated and requested the Constitutional Court to drop the rape charges and liquidate damages in his favour.

The application which was signed by lawyer Jason Grima and legal procurator Daniel Aquilina was filed against the Attorney General and the Police Commissioner.