Court denies police, govt bid to strike out suit over Dutch model's death

The police and the government failed in their bid to strike out a lawsuit over the 2017 death of Dutch model Ivana Smit.

Their application to nullify the civil action by the deceased’s family was dismissed by the Kuala Lumpur High Court this morning, with the suit now set to go for a full trial at a later date.

The family’s civil suit is over the authorities’ alleged shoddy and negligent investigation into the 18-year-old’s death. 

The authorities had sought to strike out the lawsuit on grounds it is purportedly frivolous, vexatious, and an abuse of the court process.

On Dec 7, 2017, Smit’s body was discovered on the balcony of a sixth-floor unit of the CapSquare Residence in Kuala Lumpur, 14 floors below the 20th-floor condo unit of couple Alexander William Johnson and Lunara Almazkyzy. The duo left Malaysia in early 2018.

During open-court proceedings today, judicial commissioner Roz Mawar Rozain ruled that the case is not suitable to be struck out as there are serious issues that needed to be ventilated via full hearing.

She said that the family’s civil action is neither frivolous, vexatious, nor an abuse of court process as the suit raises a reasonable cause of action against the authorities that necessitate a full trial of opposing parties’ contentions.

“The court opines that it is not opportune to summarily dismiss (the lawsuit).

“The plaintiff (Smit’s mother Christina Carolina Gerarda Johanna Verstappen) at great length extrapolated the cause of action against the (four) defendants who have defended their position under the Police Act (1967).

“Given the facts and circumstances, (the civil action) must be tried and considered on evidence to be examined at trial,” Roz said.

The four defendants in the matter are the home minister (who is not named), the inspector-general of police (who is not named), investigating officer Faizal Abdullah, and the federal government.

Roz also ordered the defendants to pay RM5,000 in costs to the family.

Police ‘still investigating’

When met after proceedings, the family’s counsel Sankara Nair expressed happiness with the court ruling, adding that the civil suit is set for case management on Dec 14 for pre-trial directions.

The lawyer remarked that today’s decision came on the fifth anniversary of Smit’s death.

Sankara said that the family received a letter from the police last week saying that the authorities are still investigating the model’s death.

“We will write to the current government to seek answers,” the lawyer added in reference to the present government led by Prime Minister Anwar Ibrahim.

On June 28, Smit’s family wrote to then prime minister Ismail Sabri Yaakob to seek the removal of Faizal from the task force that reopened the probe into her death.

The family sought Faizal’s removal over their contention to ensure a fair and transparent investigation into Smit’s death.

Two days earlier (June 26), Netherlands news reported that Ismail Sabri had assured his Dutch counterpart Mark Rutte that the probe into Smit’s death would be expedited.

Death by ‘misadventure’

Initially, in December 2017, the police classified the case as sudden death.

On March 8, 2019, the Kuala Lumpur Coroner’s Court ruled the model’s death as a misadventure.

However, in November 2019, the High Court in Kuala Lumpur overturned the coroner’s finding, ruling there was insufficient investigation on the possibility of death by homicide and on the possibility it may have been caused by “persons known or unknown” to the victim.

Following the High Court ruling, the police announced a new task force would be formed to reopen investigations into the case.

In November 2020, Verstappen, 57, filed the suit against the defendants in order to seek general, aggravated, and exemplary damages over negligence, gross negligence, misfeasance, and/or nonfeasance.

The family seeks a declaration that the defendants failed to carry out their duties as per the High Court ruling on Nov 22, 2019, which overturned the ruling of misadventure.

They are seeking a mandamus order for the IGP, home minister, and/or the government to issue a warrant of arrest and extradite Johnson and Almazkyzy to Malaysia for further questioning and possible prosecution.

Since leaving Malaysia in 2018, cryptocurrency trader Johnson and his wife Almazkyzy have given interviews to international media, where they admitted to having sexual relations with Smit prior to the incident but denied being responsible for her death.

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