EHRM, 05-07-2007, nr. 43701/04

EHRM, 05-07-2007, nr. 43701/04

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Uitspraak 05‑07‑2007

C. Bîrsan, E. Fura-Sandström, A. Gyulumyan, E. Myjer, David Thór Björgvinsson, I. Ziemele, I. Berro-Lefèvre

Partij(en)

THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 43701/04

by

Johannes Joseph Marie Elise HENDRIKS

against

the Netherlands

The European Court of Human Rights (Third Section), sitting on 5 July 2007 as a Chamber composed of:

Mr C. BÎRSAN, President,

Mrs E. FURA-SANDSTRÖM,

Mrs A. GYULUMYAN,

Mr E. MYJER,

Mr DAVID THÓR BJÖRGVINSSON,

Mrs I. ZIEMELE,

Mrs I. BERRO-LEFÈVRE, judges,

and Mr S. QUESADA, Section Registrar,

Having regard to the above application lodged on 3 December 2004,

Having deliberated, decides as follows:

The facts

The applicant, Mr Johannes Joseph Marie Elise Hendriks, is a Dutch national who was born in 1949 and lives in Vaals. He is represented before the Court by Mr J.W. Heemskerk, a lawyer practising in Maastricht.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 16 March 2004, the applicant was arrested and taken into police custody (inverzekeringstelling) on suspicion of having committed rape, attempted manslaughter and/or intentional infliction of grievous bodily harm in that he — having twisted the victim's arm behind the latter's back and constrained the victim — had forcibly inserted a wooden ladle in the victim's anus, resulting in a perforation of the colon. At the material time and for about twelve years, the victim, the applicant and the latter's wife had been engaged in a longstanding tripartite relationship.

On 19 March 2004, after having heard the applicant, the investigating judge (rechter-commissaris) ordered the applicant's detention on remand (inbewaringstelling) for a period of ten days. The reasons stated by the investigating judge were:

‘It appears from the case-file that there are serious indications against the suspect (there is more than a mere suspicion).

There are weighty reasons of public safety that warrant detention on remand, namely:

detention on remand is necessary because it concerns an act which, according to the legal definition, attracts a prison sentence of twelve years or more whereas in addition this act has seriously rocked the legal order (the act is of an extraordinarily grave nature);’

On 25 March 2004, after having heard the applicant, the Maastricht Regional Court (arrondissementsrechtbank) ordered the applicant's further detention on remand (gevangenhouding) for a period of thirty days, holding:

‘The Regional Court considers that, after examination, it has appeared that the suspicion, indications and ground, which have led to the order for detention on remand (bevel tot bewaring), currently still exist.’

The applicant filed an appeal against the decision of 25 March 2004 with the 's‑Hertogenbosch Court of Appeal (gerechtshof). The applicant did not challenge the existence of serious indications against him but argued that, given the context in which the facts had occurred, his release would not give rise to any social unrest which would justify keeping him in pre-trial detention. In his opinion, nobody would be shocked if he was released from pre-trial detention, as little publicity had been given to the criminal investigation and his arrest. The public prosecutor argued that the release of a suspect of rape always caused upheaval in society and certainly in this case where the victim had suffered considerable harm. The applicant's appeal was dismissed on 10 June 2004 by the 's‑Hertogenbosch Court of Appeal (gerechtshof). It held that the argument raised by the applicant failed to appreciate that his release could get wider publicity in the suspect's surroundings, thus rocking the legal order.

In the meantime two further prolongations — of thirty days each — of the applicant's detention on remand were ordered by the Regional Court on 22 April and 19 May 2004, respectively. Both times the Regional Court based its decision on the grounds given in its decision of 25 March 2004.

By judgment of 14 September 2004, following hearings held on 22 June 2004 and 31 August 2004, the Maastricht Regional Court convicted the applicant of rape. On the basis of reports drawn up by a psychiatrist and a psychologist who had examined the applicant, the Regional Court found that the applicant was suffering from an Attention Deficit Hyperactivity Disorder (ADHD), an alcohol addiction and an anti-social personality disorder and concluded that, at the time of the commission of the offence, the applicant was able to understand the unlawful nature of his acts but that his mental faculties were so poorly developed that he could only be held responsible for these offences to a limited degree. In this light, the Regional Court decided to sentence the applicant to twelve months' imprisonment, of which three months were suspended pending a two years' probation period, less the time spent in pre-trial detention. In addition, it imposed a special condition (bijzondere voorwaarde) within the meaning of Article 14c of the Criminal Code (Wetboek van Strafrecht) to the effect that the applicant was to comply — during the probationary period — with directives given to him by the local section of the Netherlands probation and social rehabilitation service (reclassering), also if this would entail treatment for substance abuse. It lastly ordered the applicant to pay the victim, who had joined the proceedings as an injured civil party, 3,500 euros in compensation. Although the applicant could have filed an appeal against this judgment, he did not do so.

B. Relevant domestic law and practice

Article 133 of the Code of Criminal Procedure (Wetboek van Strafvordering; ‘CCP’) defines pre-trial detention (voorlopige hechtenis) as deprivation of liberty pursuant to an order for detention on remand (inbewaringstelling), a warrant for the taking into pre-trial detention (gevangenneming) or an order for further detention on remand (gevangenhouding). The statutory rules governing pre-trial detention are set out in Articles 63 to 88 of the CCP.

Article 67 of the CCP reads as follows:

‘1. An order for pre-trial detention can be issued in case of suspicion of:

(a)

an offence which, according to the law, carries a punishment of imprisonment of four years or more;

(b)

one of the offences defined in Articles 132, 137c § 2, 137d § 2, 137e § 2, 137g § 2, 285 § 1, 285b, 318, 321, 323a, 326, 326a, 326c, 395 and 417bis and 420quater of the Criminal Code;

(c)

one of the offences defined in:

—

Article 175 § 2, part b, of the 1994 Road Traffic Act (Wegenverkeerswet);

—

Article 30 § 2 of the Civil Authority Special Powers Act (Wet buitengewone bevoegdheden burgerlijk gezag);

—

Articles 52, 53 § 1 and 54 of the Military Service (Conscientious Objectors) Act (Wet gewetensbezwaren militaire dienst);

—

Article 31 of the Betting and Gaming Act (Wet op de kansspelen);

—

Article 11 § 2 of the Opium Act (Opiumwet);

—

Article 55 § 2 of the Weapons and Ammunition Act (Wet wapens en munitie);

—

Article 46 of the 1995 Securities Transactions (Supervision) Act (Wet toezicht effectenverkeer).

2. The order can further be issued if no permanent address or place of residence of the suspect in the Netherlands can be established and he is suspected of an offence within the jurisdiction of the regional courts and which, according to the law, is punishable by imprisonment.

3. The previous paragraphs are only applied when it appears from the facts or circumstances that there are serious indications against the suspect.’

Article 67a of the CCP reads:

‘1. An order based on Article 67 can only be issued:

a.

if it is apparent from particular behaviour displayed by the suspect, or from particular circumstances concerning him personally, that there is a serious danger of absconding;

b.

if it is apparent from particular circumstances that there is a serious reason of public safety requiring the immediate deprivation of liberty.

2. For the application of the preceding paragraph, only the following can be considered as a serious reason of public safety:

— 1o.

if it concerns suspicion of commission of an act which, according to the law, carries a punishment of imprisonment of twelve years or more and the legal order has been seriously rocked by that act;

— 2o.

if there is a serious risk the suspect will commit an offence which, according to the law, carries a prison sentence of six years or more or whereby the security of the State or the health or safety of persons may be endangered, or give rise to a general danger to goods;

— 3o.

if it concerns suspicion of one of the offences defined in Articles 310, 311, 321, 322, 323a, 326, 326a, 416, 417bis, 420bis or 420quater of the Criminal Code, whereas less than five years have passed since the day on which, on account of one of these offences, the suspect has been irrevocably sentenced to a punishment or measure entailing deprivation of liberty, a measure entailing restriction of liberty or community service, and there is further a serious risk that the suspect will again commit one of those offences;

— 4o.

if pre-trial detention is reasonably necessary for discovering the truth otherwise than through statements of the suspect.

3. An order for pre-trial detention shall not be issued if there are serious prospects that, in case of a conviction, no irrevocable custodial sentence or a measure entailing deprivation of liberty will be imposed on the suspect, or that he, by the enforcement of the order, would be deprived of his liberty for a longer period than the duration of the custodial sentence or measure.’

Orders for pre-trial detention are immediately enforceable (Article 73 § 1 of the CCP). Pre-trial detention in the form of an order for detention on remand of a suspect may be issued by the investigating judge for a maximum duration of ten days (Articles 63 and 64 of the CCP).

Under Article 65 of the CCP, a subsequent prolongation of pre-trial detention may be ordered by the Regional Court in the form of an order for further detention on remand for a maximum duration of thirty days. In case the trial proceedings have not started within the thirty days' validity of an order for further detention on remand, the Regional Court can prolong it twice, each time for a maximum of thirty days (Article 66 § of the CCP).

Article 69 § 1 of the CCP reads:

‘An order for pre-trial detention may be lifted by the Regional Court. It may do so of its own motion or upon the request of the suspect, or — in so far as it concerns an order for … further detention on remand — upon a proposal from the investigating judge or a request by the public prosecutor.’

Article 71 of the Code of Criminal Procedure, in so far as relevant, states:

‘1. Within a maximum of three days after its execution, the suspect may file an appeal with the Court of Appeal against a decision of the Regional Court ordering further detention on remand …

2. Within the same time-limit, the suspect may file an appeal against an extension of an order for further detention on remand, but only if no appeal has been filed by him against the order for further detention on remand or against a previous prolongation order …’

Article 87 §§ 2 and 3 of the CCP, in so far as relevant, provides:

‘2. The suspect, who has requested for the first time to suspend (schorsing) or to lift (opheffing) an order for pre-trial detention, may file an appeal with the Court of Appeal against a negative decision on that request. The suspect, who has filed an appeal against a negative decision on a request for suspension, cannot subsequently file an appeal against a negative decision on a request to lift a pre-trial detention order. The suspect, who has filed an appeal against a negative decision on a request to lift a pre-trial detention order, cannot subsequently file an appeal against a negative decision on a request for suspension of pre-trial detention.’

The offence of rape, as defined in Article 242 of the Criminal Code (Wetboek van Strafrecht), attracts a prison sentence not exceeding twelve years or a heavy fine.

Complaint

Relying on the Court's considerations in the cases of Letellier v. France (judgment of 26 June 1991, Series A no. 207, pp. 20–21, §§ 47–53) and Smirnova v. Russia (nos. 46133/99 and 48183/99, §§ 56–71, ECHR 2003-IX), the applicant complained that the order for his (further) detention on remand contravened his rights under Article 5 of the Convention. He submitted that the notion of ‘public order’ refers to a more concrete notion than the more abstract notion of ‘legal order’ in that the latter is to be understood as a law-based social order in which all fundamental rights are maintained, whereas the notion ‘public order’ is to be understood as a society where citizens can live in peace thanks to the absence of events causing disorderliness. Consequently, a legal order will be rocked more easily than public order. The applicant argued that — as his case concerned rape in a relational context which had hardly been given any publicity whereas he and the victim lived relatively far apart — there was no risk that his release from pre-trial detention would give rise to a real disturbance of public order. In his opinion, the reason given by the Court of Appeal for rejecting this argument was based on an abstract and hardly concrete ‘rocked legal order’ which does not correspond to the Court's interpretation of the notion of ‘public order’ in the context of pre-trial detention within the meaning of Article 5 of the Convention.

The law

The applicant complained that his pre-trial detention, in particular his further detention on remand, was contrary to his rights under Article 5. This provision, in so far as relevant, provides:

‘1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: …

(c)

the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; …

3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge … and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. …’

The Court reiterates that the key purpose of the provisions of Article 5 is to prevent arbitrary or unjustified deprivations of liberty (see, amongst others, Ilaşcu and Others v. Moldova and Russia[GC], no. 48787/99, § 461, ECHR 2004-VII), and that the question whether a period of pre-trial detention is reasonable cannot be assessed in abstracto (see, for instance, Dudek v. Poland, no. 633/03, § 31, 4 May 2006).

In the case of Letellier v. France, judgment of 26 June 1991, Series A no. 207, § 51), the Court held:

‘The Court accepts that, by reason of their particular gravity and public reaction to them, certain offences may give rise to a social disturbance capable of justifying pre-trial detention, at least for a time. In exceptional circumstances this factor may therefore be taken into account for the purposes of the Convention, in any event in so far as domestic law recognises — as in Article 144 of the Code of Criminal Procedure — the notion of disturbance to public order caused by an offence.

However, this ground can be regarded as relevant and sufficient only provided that it is based on facts capable of showing that the accused's release would actually disturb public order. In addition detention will continue to be legitimate only if public order remains actually threatened; its continuation cannot be used to anticipate a custodial sentence. …’

In the case of Smirnova v. Russia (nos. 46133/99 and 48183/99, ECHR 2003-IX (extracts)), the Court summarised the pertinent criteria as follows:

‘59

The Convention case-law has developed four basic acceptable reasons for refusing bail: the risk that the accused will fail to appear for trial (see Stögmüller v. Austria, judgment of 10 November 1969, Series A no. 9, § 15); the risk that the accused, if released, would take action to prejudice the administration of justice (see Wemhoff v. Germany, judgment of 27 June 1968, Series A no. 7, § 14) or commit further offences (see Matznetter v. Austria, judgment of 10 November 1969, Series A no. 10, § 9) or cause public disorder (see Letellier v. France, judgment of 26 June 1991, Series A no. 207, § 51). …

63

Arguments for and against release must not be ‘general and abstract’ (see Clooth v. Belgium, judgment of 12 December 1991, Series A no. 225, § 44).

64

Where a suspect is on remand, he is entitled to have his case given priority and conducted with special diligence (see Matznetter, cited above, § 12).’

In its recent judgment in the case of McKay v. the United Kingdom ([GC], no. 543/03, ECHR 2006-…) the Court held:

‘41

The presumption is in favour of release. As established in Neumeister v. Austria (judgment of 27 June 1968, Series A no. 8, p.37, § 4), the second limb of Article 5 § 3 does not give judicial authorities a choice between either bringing an accused to trial within a reasonable time or granting him provisional release pending trial. Until conviction, he must be presumed innocent, and the purpose of the provision under consideration is essentially to require his provisional release once his continuing detention ceases to be reasonable.

42

Continued detention therefore can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty laid down in Article 5 of the Convention (see, among other authorities, Kudła v. Poland[GC], no. 30210/96, § 110et seq, ECHR 2000-XI).

43

The responsibility falls in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must, paying due regard to the principle of the presumption of innocence, examine all the facts arguing for or against the existence of the above-mentioned demand of public interest justifying a departure from the rule in Article 5 and must set them out in their decisions on the applications for release. It is essentially on the basis of the reasons given in these decisions and of the established facts stated by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 (see, for example, Weinsztal v. Poland, no. 43748/98, judgment of 30 May 2006, § 50).

44

The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but with the lapse of time this no longer suffices and the Court must then establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were ‘relevant’ and ‘sufficient’, the Court must also be satisfied that the national authorities displayed ‘special diligence’ in the conduct of the proceedings (see, amongst other authorities, Letellier v. France, judgment of 26 June 1991, Series A no. 207, § 35; Yağcı and Sargın v. Turkey, judgment of 8 June 1995, Series A no. 319-A, § 50).

45

In sum, domestic courts are under an obligation to review the continued detention of persons pending trial with a view to ensuring release when circumstances no longer justify continued deprivation of liberty. For at least an initial period, the existence of reasonable suspicion may justify detention but there comes a moment when this is no longer enough. As the question whether or not a period of detention is reasonable cannot be assessed in the abstract but must be assessed in each case according to its special features, there is no fixed time-frame applicable to each case.’

The Court notes that the applicant's pre-trial detention was supervised by the competent judicial authorities at the statutory prescribed intervals, and that the decisions to order and prolong his pre-trial detention were based on the serious indications against the applicant which went beyond a mere suspicion and the gravity of the facts which in addition had seriously rocked the legal order.

It has not been argued and it does not appear that domestic law prescribes mandatory pre-trial detention of suspects of the offences referred to in Article 67 of the CCP. It is clear from the text of Articles 67 and 67a of the CCP that these provisions cannot be interpreted in that manner and that it is for the competent domestic judicial authority, in each individual case and on the basis of the particular facts of each case, to determine the necessity of a placement in pre-trial detention provided that the conditions of Articles 67 and 67a of the CCP have been met, which provisions limit the possibilities of ordering a placement in pre-trial detention.

As the case-law under the Convention makes plain, the question of when detention on remand is no longer justified purely on the basis of ‘reasonable suspicion’ cannot be answered in the abstract. In the present case, there is no question but that the ‘reasonable suspicion’ against the applicant remained throughout. The issue is whether, nevertheless, the applicant was detained on remand unnecessarily long.

In this respect, the Court notes that Article 67a of the Netherlands CCP, which contains the grounds for detention on remand, recognises the notion of disturbance to public order caused by an offence of a particular gravity, in that its first paragraph under (b) cites as a ground for pre-trial detention ‘a serious reason of public safety requiring the immediate deprivation of liberty’ whereas, according to its second paragraph, such a serious reason may arise where it concerns ‘suspicion of commission of an act which, according to the law, carries a punishment of imprisonment of twelve years or more and the legal order has been seriously rocked by that act’. As illustrated by the Court of Appeal's ruling in the instant case, domestic case-law includes in that concept the likely public disorder if such an accused were released. The Court accepts that this factor may legitimately be taken into account in deciding whether it is necessary and justified to place or retain a suspect in pre-trial detention. The extent to which the commission of such an offence has attracted or been given publicity cannot be decisive in the domestic determination of the possible ‘disturbance to public order’, but the passage of time will generally weaken the justification of pre-trial detention based on such considerations.

The Court notes that the applicant's pre-trial detention lasted from 16 March 2004 when he was arrested until 14 September 2004 when he was convicted by the Maastricht Regional Court, thus amounting to a total of five months and thirty days (see Kudła v. Poland[GC], no. 30210/96, § 104, ECHR 2000-XI). This is significantly shorter than the periods examined by the Court in the cases of Letellier v. France (cited above) and Smirnova v. Russia (cited above), as relied on by the applicant. The shortest period of pre-trial detention examined by the Court in those cases, where it found a violation of Article 5 § 3, exceeded eighteen months.

In these circumstances, the Court is satisfied that the reasons stated by the domestic judicial authorities for ordering and prolonging the applicant's pre-trial detention were ‘relevant’ and ‘sufficient’ for the purposes of Article 5 of the Convention.

It follows that the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Santiago QUESADA

Registrar

Corneliu BÎRSAN

President

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