EHRM, 09-02-2021, nr. 10982/15

The applicant argued that as from 19 December 2014 onwards his pre-trial detention had had no valid grounds or that the respective decisions on his continued detention had been insufficiently reasoned.

The applicant considered that there had been nothing to suggest that he might reoffend if released from pre-trial detention given that his criminal record had contained only a conviction dating back to 15 January 2008 for bicycle theft (see paragraph 7 above). He submitted that, unlike his co-suspect, he had not been previously convicted of any sexual offence.

The applicant conceded that a high risk of ‘public disorder’ or ‘the grave affront to the legal order’ could constitute grounds for pre-trial detention, but considered that in his case release from pre-trial detention would not have given rise to public disorder. The Government had exaggerated the media attention. The two episodes of Undercover in Nederland had made no mention of the girl having been exploited by anyone and the publications on PowNed, and Dichtbij.nl and in the IJmuider Courant (see paragraph 22 above) had appeared only in September 2015, that is to say after the applicant had been convicted, and had been mainly focused on his co-suspect and not on the applicant. Between December 2014 and March 2015 there had been no media attention.

The sole ground for his extended detention on remand had been that the offence of which he had been suspected had attracted a maximum penalty of fifteen years' imprisonment and thus had been enough to satisfy the ‘twelve-year criterion’ referred to in Article 67a § 2-1 of the CCP (see paragraph 25 above). However this, by itself, could not be regarded as amounting to a threat of public disorder in the applicant's case.

The applicant further argued that it followed from the Court's case-law and other international instruments that, no matter how complete the case file, pre-trial-detention orders had to contain specific facts and individual circumstances that could be regarded as relevant and sufficient justification for pre-trial detention. In the applicant's opinion, merely paraphrasing the formal grounds for pre-trial detention under domestic law was not enough. Moreover, the Government's analogy with Article 6 of the Convention (see paragraph 45 below) was misguided.

The decisions of 18 December 2014, 14 January 2015, and 17 March 2015 suggested that the applicant might reoffend without explaining why. As to the upset caused to the legal order, only the decision of 18 December 2014 (see paragraph 8 above) was not limited to a standard reasoning. The other decisions limited themselves to saying that ‘the grounds still existed’. The courts had also failed to give reasons for refusing the applicant's reasoned request to suspend his pre-trial detention.

The applicant considered that, contrary to what had been argued by the Government (see paragraph 44 below), prosecutors' oral pleadings in court could not be a substitute for a reasoned decision by the courts which had the exclusive competence under domestic law to issue pre-trial-detention orders. All the more so, since the courts' duty was to weigh the competing interests and, by giving a reasoned decision, to allow public scrutiny. Without any insight into the reasons of a judge to extend pre-trial detention, the rights provided under Article 5 were not guaranteed in a practical and effective manner.

The applicant emphasised that pre-trial detention had to be justified in a convincing manner by the authorities no matter how brief and how often it was to be reviewed. The Court had found violations in cases where detention periods had been even shorter than the applicant's.

The Government submitted that the grounds for the applicant's pre-trial detention had been legitimate, that the reasons cited by the domestic courts had been 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 25 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); the risk 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, the applicant's pre-trial detention had been justified by concerns about him reoffending and — noting that both the applicant and the prosecutor had mainly focussed on those grounds — especially by the upset caused to the legal order by the offence of which the applicant had been suspected.

The Government submitted that pre-trial detention could be justified by, among other things, a need to preserve public order from social disturbance caused by the public reaction to serious crimes (they referred to Letellier, cited above) and that ‘public order’ in the Court's case-law may be regarded as synonymous with ‘legal order’ in domestic law (Geisterfer v. the Netherlands, no. 15911/08, § 39, 9 December 2014). Under domestic case-law, serious upset to the legal order is considered to have been caused where the suspicion concerns a serious offence attracting a lengthy prison sentence taken together with the public reaction to that offence. The Government pointed out that the Court had accepted that offence to the public sense of justice could legitimise pre-trial detention (see J.M. v. Denmark, no. 34421/09, § 62, 13 November 2012). Sexual exploitation of a minor was a serious offence, and the harrowing personal story of the applicant's victim had attracted attention in the media, as had the applicant's pre-trial detention and conviction. A decision to release the applicant from pre-trial detention would have caused an outcry, also bearing in mind that the case had been found so shocking by the investigating journalists concerned that they had taken the unusual step of reporting it to the police.

According to the Government, the reasons given in the pre-trial-detention decisions had been relatively brief but not so as to breach Article 5. Not only had the decisions themselves to be considered, but also the preceding courtroom discussions, reflected in the hearing records, during which the Public Prosecution Service had given a reasoned explanation for its position that the criterion of ‘serious upset to the legal order’ had been applicable.

Furthermore, in the context of Article 6 of the Convention, the Court had held that national courts had had to indicate with sufficient clarity the grounds on which they had based their decisions (see Hadjianastassiou v. Greece, 16 December 1992, § 33, Series A no. 252). However, the extent of the duty to give reasons varied according to the nature of the decision and had to be determined in the light of the circumstances of the case (see Ruiz Torija v. Spain, 9 December 1994, § 29, Series A no. 303-A). The Court had taken issue with the reasoning of domestic courts only if the conclusions had been arbitrary, which in the present case they had not been.

The Government emphasised that the applicant's pre-trial detention had lasted a little over nine months, which — in view of the seriousness of the offences concerned, the seriousness of the suspicions and the other reasons that existed — could not be regarded as incompatible with the Convention (see, for instance, W.B. v. Poland, no. 34090/96, § 66, 10 January 2006). By reviewing the applicant's detention six times within that period, the authorities had displayed a sufficient degree of diligence. The applicant had had full access to the case file which constituted a significant safeguard against arbitrary pre-trial detention (see Van Thuil v. the Netherlands (dec.), no. 20510/02, 9 December 2004).

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, 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 of 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 of ‘public disorder’, consideration must be given to the question whether the offences concerned, by reason of their particular gravity and public reaction to them, may give rise to a social disturbance capable of justifying pre-trial detention. 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 67a of the CCP — the notion of disturbance to public order caused by an offence (see Letellier, cited above, § 51, and J.M. v. Denmark, cited above, § 62).

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 (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 (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 (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 observes that the applicant does not contest before this Court that there was a reasonable suspicion that he had committed an offence and it has no reason to hold otherwise. It further notes that at the trial hearing of 9 June 2015, the applicant's lawyer admitted that his client might have committed a crime in the eyes of the law (see paragraph 18 above).

Next, the Court observes that in the applicant's period of pre-trial detention, which lasted nine months and thirteen days, namely from 2 December 2014 (see paragraph 6 above) to 15 September 2015 (see paragraph 21 above), the applicant's initial detention was based on several grounds: that of a ‘suspicion of a crime attracting a prison sentence of twelve years or more and which [had] caused serious upset to the legal order’; the risk of reoffending; and the risk of influencing the witnesses and the co-suspects. However, the latter ground was dropped as early as 18 December 2014, when the Regional Court extended the applicant's pre-trial detention but held that the needs of the investigation no longer obtained (see paragraph 8 above).

As to the ‘suspicion of a serious crime which has seriously upset the legal order’, the Court reiterates that the notion of ‘legal order’, contained in Article 67a of the CCP, is synonymous with the ‘public order’ in the Court's case-law (see Geisterfer, cited above, § 39). A ‘serious upset’ to that order arising from the gravity of the crime may justify detention (see Kanzi v. the Netherlands (dec.), no. 28831/04, 5 July 2007). The preservation of a threat to public order is commonly seen as a legitimate ground for detention and is as such accepted in the Court's case-law (see, Merčep v. Croatia, no. 12301/12, § 104, 26 April 2016, with references to Peša v. Croatia, no. 40523/08, § 101, 8 April 2010 and J.M. v. Denmark, cited above § 62, as examples of cases where the preservation of the public's sense of justice was in issue). 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 upset 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. More generally, the need to continue the deprivation of liberty cannot be assessed from a purely abstract point of view, taking into consideration only the seriousness of the offence (see Tiron v. Romania, no. 17689/03, § 42, 7 April 2009, and Geisterfer, cited above, § 39, with further references). It is further to be reiterated that the assessment of the relevant and sufficient reasons for pre-trial detention cannot be separated from the actual duration thereof. Article 5 § 3 of the Convention cannot be seen as allowing pre-trial detention unconditionally provided that it lasts no longer than a certain period (see, among many other authorities, Shishkov v. Bulgaria, no. 38822/97, § 66, ECHR 2003-I (extracts)). The longer pre-trial detention lasts, the more substantiation is required for convincingly demonstrating the alleged risk or risks in case of the suspect's release from pre-trial detention.

In the case in hand, the Court observes that the Regional Court in its decision of 18 December 2014 did not only rely on the gravity of the charge against the applicant, but also on the public reaction. More concretely, it referred to the young age of the victim and the great media attention (see paragraph 8 above). Taking into account the fact that the applicant's pre-trial detention was still in its early stages, the Court finds that it cannot be said that this decision lacked relevant and sufficient reasons.

However, the Court considers that the domestic judicial authorities in their subsequent decisions on the applicant's pre-trial detention — the Court of Appeal's decision of 14 January 2015 (see paragraph 11 above), the Regional Court's decision of 17 March 2015 (see paragraph 15 above), the Court of Appeal's decision of 22 April 2015 (see paragraph 17 above) and the Regional Court's decision of 9 June 2015 (see paragraph 20 above) —, fell short of the above requirements. In particular, they did not show that public order would have been upset if the applicant had been released from pre-trial detention or if a preventive measure less compelling than detention had been imposed on him. Indeed, those subsequent decisions confirmed, in a relatively stereotyped way, without addressing the applicant's and the prosecutor's arguments and without any further explanation, the validity of the assessment previously made; they constituted little more than a chain of references leading back to the investigating judge's order of 5 December 2014 (see paragraph 6 above).

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 into the official records of the hearings concerned, compensated for the lack of detail in the written decisions (see paragraph 44 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.

In the light of the above, the Court considers that, by failing to address specific facts and individual circumstances, the judicial authorities extended the applicant's detention on grounds which, although ‘relevant’, cannot be regarded as ‘sufficient’ to justify his continued detention. This conclusion dispenses the Court from ascertaining whether the competent national authorities displayed ‘special diligence’ in the conduct of the proceedings (see the case-law quoted in paragraph 55 above, and Qing v. Portugal, no. 69861/11, § 69, 5 November 2015).

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