Communicated on 14 September 2015
THIRD SECTION
Application no. 4784/15
Gustavo Adolfo CALDERON SILVA
against the Netherlands
lodged on 16 January 2015
STATEMENT OF FACTS
1. The applicant, Mr Gustavo Adolfo Calderon Silva, is a Colombian national, born in 1985. At the time of the introduction of the application he was detained in Haarlemmermeer. He is represented before the Court by Mr J. Reisinger, a lawyer practising in Utrecht.
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. On 17 September 2014, the applicant was arrested on suspicion of money laundering, committed with others, and subsequently placed in police custody (inverzekeringstelling) on 18 September 2014. He was later additionally charged with narcotics offences. As relevant to the present case, the applicant had been found in premises which had been raided by police on suspicions relating to narcotics offences.
4. By order of 19 September 2014 of the investigating judge (rechter-commissaris) of the Midden-Nederland Regional Court (rechtbank), the applicant was taken into initial detention on remand (bewaring) on 21 September 2014 for fourteen days. The order included the following grounds for the detention:
“There is a serious risk of the suspect absconding, based on the suspect’s demeanour and/or personal circumstances as follows: the suspect does not have a permanent or temporary domicile (woon- of verblijfplaats) in the Netherlands.
It appears that there is a serious reason of public safety requiring the immediate deprivation of liberty, namely:
There is a serious likelihood (dat er ernstig rekening mee moet worden gehouden) that the suspect will commit a crime (misdrijf) which, according to the law, carries a maximum sentence of imprisonment of six years or more;
There is a serious likelihood that the suspect will commit a crime by which the health or safety of persons will be endangered (waardoor de gezondheid of veiligheid van personen in gevaar kan worden gebracht);
The detention on remand is necessary to discover the truth (voor het aan de dag brengen van de waarheid) otherwise than through statements of the suspect. Witnesses/co-suspects need to be heard, without the suspect having the possibility to influence the content of their statements.”
5. On 2 October 2014, a hearing in camera took place before the Midden-Nederland Regional Court, pertaining to the applicant’s placement in extended detention on remand (gevangenhouding). The applicant, through counsel, argued against such placement, contending, inter alia, that there was no risk of reoffending since he had never been criminally convicted in the Netherlands before. Furthermore, the risk of absconding was minimal given that the applicant held a Spanish residence permit and had a permanent address in Spain. Not being permanently or temporarily domiciled in the Netherlands was, in those circumstances, insufficient to serve as a basis for detention on remand. Lastly, it was asserted that no investigative reasons existed which justified the applicant’s deprivation of liberty.
6. The Regional Court ordered on the same day that the applicant be taken into extended detention on remand for thirty days. The order stated the following:
“The Regional Court is of the view that the serious reasons and grounds stated in the order for initial detention on remand (bevel inbewaringstelling) still exist. That is not, however, the case as far as the grounds relating to the investigation (onderzoeksgrond) and the risk of absconding (vluchtgevaar) are concerned.”
7. On 30 October 2014, the applicant’s extended detention on remand was further prolonged for sixty days by order of the Midden-Nederland Regional Court following a hearing in camera which took place on the same day. This decision included the following:
“The Regional Court is of the view that the serious reasons and grounds stated in the order for extended detention on remand (bevel gevangenhouding) still exist.”
8. On 8 December 2014, the applicant signed a proposal for a deal (transactievoorstel) which had been offered by the public prosecutor pursuant to Article 74 of the Criminal Code (Wetboek van Strafrecht). The proposal stipulated that the charges at issue would be dropped, provided that the applicant make a payment of 20,000 Euros, waive his right to claim a sum of money in cash which had been seized when he was arrested and agree not to lodge (civil) proceedings concerning his police arrest or to request compensation for damages for the time spent in pre-trial detention and/or costs of legal assistance. The deal was to take effect from the moment the applicant paid the 20,000 Euros. However, the settlement was apparently cancelled as the applicant was unable to pay the agreed sum.
9. The trial commenced with a preparatory hearing (regiezitting) held before the Regional Court on 19 December 2014, on which occasion counsel for the applicant requested the detention on remand be lifted (opheffing), asserting, inter alia, that the applicant had never been convicted either in the Netherlands or in Spain. He further referred to Article 67a § 3 of the Code of Criminal Procedure (Wetboek van Strafvordering), which provides that courts refrain from issuing an order for detention on remand if there are serious prospects that - in case of a conviction – the suspect, 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. Stressing that the applicant had been held in pre-trial detention for 92 days already, counsel for the applicant argued for the request to be granted. In the alternative, he requested that the applicant’s detention be suspended (schorsing), submitting, inter alia, that the applicant was at risk of losing his job in Spain and that he needed to prolong his residence permit in Spain before it expired.
10. According to the official record (proces-verbaal) of the hearing, the Regional Court issued a refusal, expressed by its president in the following terms:
“The Regional Court takes the view that the serious reasons and grounds still exist. ... [T]he Regional Court will not lift the detention on remand. Article 67a § 3 [of the Code of Criminal Procedure] is not yet applicable. ... [T]he request for the detention on remand to be suspended will be refused as the suspect’s personal interests do not outweigh the general interest of society in the detention on remand being continued.”
11. The applicant appealed against the Regional Court’s decision. In his written grounds of appeal, counsel for the applicant argued, inter alia, that the Regional Court had failed duly to motivate the grounds which it had considered as justifying the applicant’s continued detention on remand. Counsel referred, in that regard, to Geisterfer v. the Netherlands (no. 15911/08, § 38, 9 December 2014) and maintained that as regards the applicant, there were no specific indications of the existence of a risk of absconding or reoffending.
12. By decision of 7 January 2015, the Arnhem-Leeuwarden Court of Appeal dismissed the appeal and confirmed the Regional Court’s decision. The decision contained the following:
“The court takes the view that the serious reasons and grounds on which the suspect’s detention on remand is based still exist, as a result of which the Regional Court’s decision is to be confirmed.”
13. No further appeal lay against this decision.
COMPLAINT
The applicant complains under Article 5 §§ 1 (c) and 3 of the Convention that his extended detention on remand from 19 December 2014 onwards was without adequate justification, or in the alternative, that the respective decisions taken by the domestic courts lacked sufficient reasons.
QUESTIONS TO THE PARTIES
1. What were the grounds for the applicant’s detention on remand from 19 December 2014 onwards?
2. Was the continuation of the applicant’s pre-trial detention from 19 December 2014 onwards justified under Article 5 § 1 (c) and under Article 5 § 3 of the Convention?
In particular, were the grounds for the detention sufficiently reasoned in the respective decisions of the Regional Court and the Court of Appeal?
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