EHRM, 09-02-2021, nr. 73329/16

The applicant argued that his pre-trial detention as from 13 July 2016 had had no valid grounds or, alternatively, that the decisions taken following his application of that date to lift his pre-trial detention had been insufficiently reasoned.

The applicant submitted, as regards the suspicions against him, that in general the suspicions have to become more serious as time passes. However, in his case, the suspicions against him had gradually become less serious. When he had lodged his application on 13 July 2016 to lift his pre-trial detention, he had already been held for 104 days. The suspicions against him had been mainly based on the statements given by Mr X. However, that account had found no support and had actually been contradicted in the statement given subsequently by Mr Y before the investigating judge.

As to the risk of reoffending, the applicant submitted that, if serious concerns had existed for the suspicion of illegal restraint of Mr X and Mr Y by him, his pre-trial detention could not be justified by purely relying on the allegedly underlying dispute — an unpaid debt of EUR 50,000 — and the seriousness of the alleged offence, as explained by the Government. The actual reasoning given by the Regional Court in its decision of 4 August 2016 in respect of this ground as well as the other grounds had contained no more than a meaningless phrase (see paragraph 18 above). In the applicant's opinion that had obviously not been enough to justify the continuation of his pre-trial detention on those grounds.

Referring to the Court's considerations in the cases of Clooth v. Belgium (12 December 1991, § 44, Series A no. 225), Estrikh v. Latvia (no. 73819/01, § 122, 18 January 2007), Dubinskiy v. Russia (no. 48929/08, § 65, 3 July 2014), and Urtāns v. Latvia (no. 16858/11, § 35, 28 October 2014), the applicant argued that the national courts were required, in their decisions concerning pre-trial detention, to indicate with sufficient clarity the grounds on which they were basing their decisions. Those decisions had to contain specific facts and individual circumstances that were relevant and sufficient justification for pre-trial detention.

According to the applicant it was clear that the national courts had not indicated with sufficient clarity the concerns on which they based their decisions. It had not sufficed to refer to a previous decision, especially when the previous decisions had not taken into account new information on which a fresh application to lift his pre-trial detention had been based. It also had not sufficed to use ‘general terms’ like those used in the applicant's case, whereas, as observed by the third-party intervener, very limited reasoning, which was of a strongly generic character, was standard practice in habeas corpus proceedings in the Netherlands.

The applicant further disagreed with the Government's argument that it could be deduced from the decision and the accompanying official record that the Regional Court had not given the same exculpatory weight to the changed statement as the defence had done (see paragraph 58 below). This could not, in the applicant's opinion, be regarded as constituting sufficient reasoning in line with the requirements in the Court's case-law under Article 5 of the Convention. If this were the case, a decision in favour of the public prosecution service would be sufficient by definition. The reasons given by the public prosecution service could not in any way take the place of a court decision.

As to the Government's argument that he had spent only a relatively short period in pre-trial detention, the applicant emphasised, relying on Shishkov v. Bulgaria (no. 38822/97, § 66, ECHR 2003-I (extracts)), that justification for any period of detention, no matter how short, had to be convincingly demonstrated by the authorities.

The Government submitted that the grounds for the applicant's pre-trial detention had been justified, that the reasons cited by the domestic courts had been adequate and sufficient, and that his detention had in general been lawful.

In compliance with the Court's case-law, the general principle in the Netherlands pertaining to pre-trial detention was that the suspect could remain at liberty while awaiting trial. An exhaustive list of exceptions to this general rule was set out in Article 67a of the CCP (see paragraph 28 above) and Dutch legislation specified the grounds for pre-trial detention recognised by the Court, namely the risk that the accused would fail to appear for trial (see Stögmüller v. Austria, 10 November 1969, § 15, Series A no. 9); that the accused, if released, would take action to prejudice the administration of justice (see Wemhoff v. Germany, 27 June 1968, § 14, Series A no. 7); commit further offences (see Matznetter v. Austria, 10 November 1969, § 9, Series A no. 10); or cause public disorder (see Letellier v. France, 26 June 1991, § 51, Series A no. 207).

The Government pointed out that Article 67a § 1 referred to ‘a serious public-safety reason’ which, in accordance with its second paragraph, could only be assumed in cases concerning a suspicion of commission of an act which, according to its legal definition, carried a sentence of imprisonment of twelve years or more and an act which had caused ‘serious upset to the legal order’ (geschokte rechtsorde). In determining whether the offence for which pre-trial detention was being sought constituted a serious upset to the legal order, the penalty applicable to that offence was not the sole decisive factor. As held by the Netherlands Supreme Court (Hoge Raad) in a ruling given on 21 March 2006 (ECLI:NL:HR:2006:AU8131), an equally important factor was whether the seriousness of the offence was such that allowing the suspect to remain at liberty while awaiting trial would be met with widespread incredulity and be considered unacceptable by society.

According to the Government, throughout the entire period the applicant's pre-trial detention had been based on the risk of his reoffending, the fact that the offence committed had constituted an affront to the legal order, and the risk that the applicant, if released, would take action to prejudice the administration of justice.

As to the risk of reoffending, the Government emphasised that it could be deduced from the case file, in particular the decision given on 7 July 2016 (see paragraph 12 above), that the Regional Court had considered that pre-trial detention had been essential as the alleged cause for the criminal acts of which the applicant had been accused had been a substantial debt which had still been outstanding. In this context, the applicant's character had been significant since, as considered in the decision of 5 April 2016 (see paragraph 7 above), the applicant had responded disproportionally to a minor event and/or had behaved excessively violently towards the victims. In addition, the risk of reoffending had lain in the applicant's criminal record. At the time of the decisions on his pre-trial detention, it had been known to the Regional Court that the applicant had been previously convicted of violent crimes.

In respect of the ground ‘suspicion of a crime which has seriously upset the legal order’, the Government submitted that application of Article 67a § 2(1) of the CCP (see paragraph 28 above) required not only that the offence of which the person concerned is suspected attracts a prison sentence of twelve years or more but also that it constitutes a serious affront to the legal order. According to the Government, it could be deduced from the Court's considerations in the case of Geisterfer v. the Netherlands (no. 15911/08, § 39, 9 December 2014) that ‘public order’ in the Court's case-law could be regarded as being synonymous with ‘legal order’ in domestic law. In the case in hand, the applicant had been suspected of hostage-taking, unlawful deprivation of liberty and extortion of two people. Given the nature of these offences and in particular the aggressive way in which the applicant allegedly had taken the law on his own hands to obtain payment of a debt, his release would have been met with widespread incredulity and would undoubtedly have offended the public's sense of justice.

As regards the risk that the applicant, if released, would take action to prejudice the administration of justice, the Government submitted that in particular the nature of the offence in question had led to the conclusion that there had been a risk that evidence would be tampered with (via collusion). After all, the applicant had been suspected of having deprived Mr X and Mr Y of their liberty, allegedly in association with others, under the threat of violence and with violence. He had tried to instil fear in the victims in order to force them to do something. This was not altered by the fact that Mr Y, when making his case before the investigating judge on 11 July 2016 (see paragraph 14 above), had retracted parts of his initial statement in which he had incriminated the applicant. This had made it actually necessary to continue the applicant's pre-trial detention to uncover the truth by means of statements taken from the remaining witnesses or otherwise.

According to the Government, the reasons given by the judicial authorities for the applicant's pre-trial detention in its decisions on 4 August and 1 September 2016 (see paragraphs 18 and 20 above) had been adequate and sufficient. On that point, the Government argued that not only had the decisions themselves to be considered but also the preceding courtroom discussions, reflected in the official hearing records. At the hearing in chambers on 4 August 2016, counsel for the applicant had argued that, as Mr Y had retracted an earlier statement, there had no longer been any serious grounds for suspicion (see paragraph 15 above). The public prosecution service had explained why it had held that various grounds had existed for continuing the applicant's pre-trial detention, emphasising that Mr Y had stated previously that he had been afraid of the applicant and that, although denied in his subsequent statement, violence had been used against him (see paragraph 17 above). It could be deduced from the decisions and the accompanying official records that the Regional Court had not given the same exculpatory weight to the changed statement as the defence had done. The Government further emphasised that the suspicion warranting pre-trial detention had been construed on the basis of more elements than the statements of Mr X and Mr Y.

The Government further emphasised that the applicant's pre-trial detention had lasted five months, which — in view of the gravity of the offences concerned, the seriousness of the suspicions and the other reasons that existed — could not be regarded as incompatible with the Convention (they refer, in this respect, to W.B. v. Poland, no. 34090/96, § 66, 10 January 2006). By reviewing the applicant's detention seven times within that period, the authorities had displayed a sufficient degree of diligence.

The Netherlands Institute for Human Rights presented an overview of the domestic rules on pre-trial detention and of the Court's case-law on the subject.

The Institute made reference to a research study published in 2012 that had shown that most of the 28 domestic judges that were interviewed often derived the element of ‘serious disturbance to the legal order’ from the seriousness of the offence. The assessment of the risk of offending while on bail was also based on the seriousness of the crime being tried.

The Institute further noted that when extending pre-trial detention, the domestic courts usually gave few reasons for their decisions and resorted to standard phrasing with little reference to the circumstances of individual cases. Often the courts would just echo earlier decisions or quote the corresponding statutory provisions. This practice could be partly explained by the courts' high caseload, with one court having to examine up to twenty-five cases in one session.

That limited reasoning was a symptom of a larger issue: a near-automatic withholding of bail. A study published in 2010 into the length of pre-trial detention and the subsequent sanction imposed on the defendant showed that in 27 % of all cases in which pre-trial detention had been ordered, no penalty restricting the liberty of the defendant was imposed, and that in 24 % of all cases the defendants were sentenced to terms equal to or shorter than the time spent in pre-trial detention. As confirmed by judges, the duration of pre-trial detention was a compelling factor for determining the duration of a prison sentence.

The third-party intervener further stated that the lack of reasoning appeared to be a symptom of another larger issue concerning pre-trial detention in the Netherlands, namely its application in a near-automatic fashion. Whilst the Dutch domestic legislation set out guarantees in line with Article 5 of the Convention, its application in practice had led to a tendency of ‘extension of pre-trial detention, unless’, rather than as an ultimum remedium.

The Institute had further conducted a research in 2016 into the manner in which the Regional Court and Courts of Appeal reasoned their decisions on pre-trial detention. Over 300 randomly selected case files from four out of eleven Regional Courts and two out of four Courts of Appeal had been analysed. It appeared from this research that each court had its own working methods and practices where it concerned reasoning of pre-trial detention orders, varying from using pre-printed forms on which boxes could be ticked with no room for individual reasoning to decisions containing substantiated reasoning on all relevant elements. It further appeared that most Regional Courts only provided reasoning in the first decision on initial detention on remand and, when deciding on extended detention on remand, simply referred back to the initial decision without any further information or reasoning. It further happened frequently that arguments raised by the defence were not addressed at all in the written decision.

The Netherlands Institute for Human Rights stressed that the reasoning in pre-trial-detention orders formed the topic of much discussion, not only amongst academics and criminal defence lawyers but also within the judiciary. Recently, a number of courts had initiated pilots aiming at improving the reasoning of pre-trial detention orders, which the Institute highlighted as a positive development.

The applicable general principles concerning the length and the justification of pre-trial detention are set out in Buzadji (cited above, §§ 84-91).

The Court reiterates in particular that, while paragraph 1 (c) of Article 5 sets out the grounds on which pre-trial detention may be permissible in the first place (see De Jong, Baljet and Van den Brink v. the Netherlands, 22 May 1984, § 44, Series A no. 77), paragraph 3, which forms a whole with the former provision, lays down certain procedural guarantees, including the rule that detention pending trial must not exceed a reasonable time, thus regulating its length (see Buzadji, cited above, § 86).

According to the Court's established case-law under Article 5 § 3, the persistence of a reasonable suspicion is a condition sine qua non for the validity of the pre-trial detention but after a certain lapse of time — that is to say as from the first judicial decision ordering detention on remand (see Buzadji, cited above, § 102) — it no longer suffices. The Court must then establish (1) whether other grounds cited by the judicial authorities continue to justify the deprivation of liberty, and (2) where such grounds were ‘relevant’ and ‘sufficient’, whether the national authorities displayed ‘special diligence’ in the conduct of the proceedings. Justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities (see, among many other authorities, § 35; Idalov v. Russia [GC], no. 5826/03, § 140, 22 May 2012; and Buzadji, cited above, § 87). Justifications which have been deemed ‘relevant’ and ‘sufficient’ reasons — in addition to the existence of reasonable suspicion — in the Court's case-law, have included such grounds as the danger of absconding, the risk of pressure being brought to bear on witnesses or of evidence being tampered with, the risk of collusion, the risk of reoffending, the risk of causing public disorder and the need to protect the detainee (see Buzadji, cited above, § 88, with further references). Until conviction, an accused must be presumed innocent and the purpose of the provision under consideration is essentially to require his or her provisional release once his or her continuing detention ceases to be reasonable (see McKay v. the United Kingdom [GC], no. 543/03, § 41, ECHR 2006-X, and Buzadji, cited above, § 89).

The question whether a period of time spent in pre-trial detention is reasonable cannot be assessed in the abstract. Whether it is reasonable for an accused to remain in detention must be assessed on the facts of each case and according to its specific features. Continued detention 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, for instance, Labita v. Italy [GC], no. 26772/95, § 152, ECHR 2000-IV, and Kudła v. Poland [GC], no. 30210/96, §§ 110 et seq., ECHR 2000 XI; see also Buzadji, cited above, § 90).

It primarily falls 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. Accordingly, they must, with respect for the principle of the presumption of innocence, examine all the facts militating for or against the existence of the above mentioned requirement of public interest or justifying a departure from the rule in Article 5, and must set them out in their decisions on applications for release (see Buzadji, cited above, § 91). With particular regard to the risk that the suspect, if released, would reoffend, consideration must be given to, inter alia, the nature and seriousness of the charges against a defendant, his or her criminal record, and his or her character or behaviour that would indicate that he or she presented such a risk (see, for instance, Merčep v. Croatia, no. 12301/12, § 96, 26 April 2016; Šoš v. Croatia, no. 26211/13, § 95, 1 December 2015; and Magnitskiy and Others v. Russia, nos. 32631/09 and 53799/12, § 221, 27 August 2019).

In exercising its function on this point, the Court has to ensure that the domestic courts' arguments for and against release must not be ‘general and abstract’ (see, for example, Smirnova v. Russia, nos. 46133/99 and 48183/99, § 63, ECHR 2003-IX (extracts)), but contain references to specific facts and the personal circumstances justifying an applicant's detention (see, mutatis mutandis, Panchenko v. Russia, no. 45100/98, § 107, 8 February 2005). For example, the Court found no violation of Article 5 § 3 in a case concerning a pre-trial detention period of more than four years (see Lisovskij v . Lithuania, no. 36249/14, § 77, 2 May 2017), in which it considered that the Lithuanian courts thoroughly evaluated all the relevant factors and based their decisions on the particular circumstances of the case), in a case concerning a pre-trial detention period of more than three years and eight months (see Štvrtecký v. Slovakia, no. 55844/12, § 65, 5 June 2018), in which the Court observed that the judicial authorities referred to specific facts of the case and did not use a pre-existing template or formalistic and abstract language and noted that, with the passing of time, the court's reasoning evolved to reflect the state of the investigations) and in a case concerning a pre-trial detention period of one year, three months and twenty-three days (see Podeschi v. San Marino, no. 66357/14, § 153, 13 April 2017), in which the Court observed that while the various jurisdictions referred to the previous decisions refusing bail, they gave details of the grounds for the decisions in view of the developing situation and whether the original grounds remained valid despite the passage of time), whereas the Court did find a violation of this provision in a case in which the pre-trial detention lasted three months (see Sinkova v. Ukraine, no. 39496/11, § 74, 27 February 2018, in which the Court observed that, in extending the applicant's detention and rejection her applications for release, the domestic courts mainly referred to the reasoning for her initial placement in detention, without any updated details); in a case concerning a period of pre-trial detention of forty-three days (see Krivolapov v. Ukraine, no. 5406/07, §§ 105-108, 2 October 2018, for which the Court noted the absence from the relevant decision of any justification other than the fact that criminal proceedings were pending against the applicant); and in a case in which the pre-trial detention lasted slightly less than two months (see Cîrstea v. Romania [Committee], no. 10626/11, §§ 54-59, 23 July 2019, in which the Court found that the domestic courts failed to adduce a proper substantiation for the alleged risks in case of a discontinuation of the applicant's pre-trial detention).

Where circumstances that could have warranted a person's detention may have existed but were not mentioned in the domestic decisions it is not the Court's task to establish them and take the place of the national authorities which ruled on the applicant's detention (see Bykov v. Russia [GC], no. 4378/02, § 66, 10 March 2009, and Giorgi Nikolaishvili v. Georgia, no. 37048/04, § 77, 13 January 2009).

The Court notes at the outset that the applicant only seeks to complain of his pre-trial detention as from 13 July 2016 onwards (see paragraph 31 above) and, reiterating its finding that the applicant cannot claim to be a victim in respect of his detention from 2 to 15 September 2016 (see paragraph 42 above), will therefore limit its examination to the period from 13 July 2016 to 2 September 2016 when the Regional Court lifted the applicant's pre-trial detention (see paragraph 21 above).

The Government submitted that the continuation of the applicant's pre-trial detention as from 13 July 2016 had been found justified by the Regional Court because of the risk of his reoffending, the fact that the offence committed had constituted an affront to the legal order and the risk that the applicant, if released, would take action to prejudice the administration of justice. The Government further submitted the arguments on the basis of which the Regional Court would have found these grounds applicable to the applicant's case.

However, the Court cannot find support in the actual decisions of 4 August and 1 September 2016 (see paragraphs 18 and 20 above) for the arguments now put forward by the Government. The Court has already indicated that it is called on to assess whether the judicial orders contain references to specific facts and individual circumstances justifying continued detention, and not the Government's posterior submissions in this regard (see Urtāns, cited above, § 35, with further references). The wording of the decisions taken by the Regional Court and the Court of Appeal in the present case merely refer back to the grounds and reasons set out in the decision given on 16 June 2016 (see paragraph 10 above), that is to say before additional evidence was taken by the investigating judge on 11 and 12 July 2016 (see paragraph 14 above). These decisions further do not address the essential question, raised by the applicant in his application of 13 July 2016 (see paragraph 15 above), whether in view of the evidence given before the investigating judge on 11 and 12 July 2016 the suspicion that the applicant had committed the offences in question remained reasonable.

In this context, it should be reiterated that it is essentially on the basis of the reasons given by the national judicial authorities in their decisions on applications for release and of the well-documented 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 Buzadji, cited above, § 91). The Court cannot therefore accept the Government's contention that the depth of the courtroom discussions, reflected in the official records of the hearings concerned, compensated for the lack of detail in the written decisions (see paragraph 58 above). Indeed, the discussion at the hearing reflects the arguments put forward by the parties, but does not indicate what were the grounds justifying the pre-trial detention in the eyes of the judicial authority competent to order or extend a deprivation of liberty. Only a reasoned decision by those authorities can effectively demonstrate to the parties that they have been heard and make appeals and public scrutiny of the administration of justice possible (see Ignatenco v. Moldova, no. 36988/07, § 77, 8 February 2011). In this respect it is moreover noted that national law provisions — Articles 24(1) and 78(2) of the CCP (see paragraphs 23 and 25, above) — stipulate that decisions on pre-trial detention should be duly reasoned.

Having regard to the above, the Court concludes that the reasons provided in the present case by the domestic courts on, respectively, 4 August and 1 September 2016, although ‘relevant’, cannot be regarded as ‘sufficient’ to justify his continued deprivation of liberty during the period in issue (see paragraph 74 above). This conclusion dispenses the Court from ascertaining whether the competent national authorities displayed ‘special diligence’ in the conduct of the proceedings (see Qing v. Portugal, no. 69861/11, §§ 67-69, 5 November 2015).

It follows that there has been a violation of Article 5 § 3 of the Convention.