Communicated on 29 August 2017
THIRD SECTION
Application no. 73329/16
Fredrik Egbert HASSELBAINK
against the Netherlands
lodged on 29 November 2016
STATEMENT OF FACTS
1. The applicant, Mr F. Hasselbaink, is a Dutch national, who was born in 1984 and lives in Vlaardingen. He is represented before the Court by Mr J. Reisinger, a lawyer practising in Utrecht.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. On 31 March 2016 the applicant was arrested and placed in police custody (inverzekeringsstelling) on suspicion of hostage-taking (gijzeling), unlawful deprivation of liberty (wederrechtelijke vrijheidsberoving) and extortion (afpersing).
4. On 1 April 2016 the applicant was arraigned before an investigating judge (rechter-commissaris) of the Rotterdam Regional Court (rechtbank) in order to be heard about the lawfulness of his arrest and the police custody.
5. On 5 April 2016 the applicant was taken into initial detention on remand (bewaring) for fourteen days by order of an investigating judge of the Rotterdam Regional Court. The order included the following grounds for detention:
“It appears from the case file that there are serious reasons against the suspect concerning the facts mentioned in the request for an order for the detention on remand (vordering tot inbewaringstelling).
It appears that there is a serious reason of public safety requiring the immediate deprivation of liberty, namely:
- There is a suspicion of an offence which, according to the law, carries a prison sentence of twelve years or more and that act has caused serious upset to the legal order (een feit waarop naar de wettelijke omschrijving een gevangenisstraf van twaalf jaren of meer is gesteld en de rechtsorde ernstig door dat feit is geschokt).
- There is a serious likelihood (dat er ernstig rekening mee moet worden gehouden) that the suspect will commit a crime (misdrijf) which, according to law, carries a prison sentence 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 (noodzakelijk voor het aan de dag brengen van de waarheid) other than through statements of the suspect. The suspect denies [the crime] in whole or in part and (an)other witness(es) need(s) to be heard and another co-suspect needs to be arrested and questioned and investigations are needed in other respects. There is a serious likelihood that the suspect, if he remains at large, could seriously impede one and another.
- The suspect has previously (recently) irrevocably been convicted of a similar act (onherroepelijk veroordeeld voor een soortgelijk feit).
- The suspect responds disproportionally to a minor reason (reageert disproportioneel op een geringe aanleiding) and has acted in an excessively violent way towards the victim (heeft zich op excessief gewelddadige wijze gedragen jegens het slachtoffer).”
6. On 14 April 2016 the applicant was taken into extended detention on remand (gevangenhouding) for thirty days by order of the Rotterdam Regional Court. The order included the following:
“Considering that, after examination, it appears that the suspicion, serious reasons and grounds, which have led to the order for the applicant’s initial detention on remand still exist.
Considering that the existence of these grounds is borne out by the circumstances stated in that order.”
7. On 12 May 2016 the order for the applicant’s extended detention on remand was renewed for thirty days by the Rotterdam Regional Court. The Regional Court, further, rejected the applicant’s request to have his detention on remand suspended (schorsing van de voorlopige hechtenis). The order included the following:
“Considering that, after examination, it has appeared that the suspicion, serious reasons and grounds, which have led to the order for the applicant’s extended detention on remand still exist.
Considering that the existence of these grounds is borne out by the circumstances stated in that order.
Considering that there were insufficient reasons (onvoldoende aanleiding) to grant the request for suspension of the detention on remand.”
8. On 16 June 2016 the order for the applicant’s extended detention on remand was renewed for another thirty days by the Rotterdam Regional Court. The order included the following:
“Considering that, after examination, it appears that the suspicion, serious reasons and grounds, which have led to the order for the applicant’s extended detention on remand still exist.
Considering that the existence of these grounds is borne out by the circumstances stated in that order.”
9. On 7 July 2016 a first trial hearing took place before the Rotterdam Regional Court. During the hearing, the applicant requested through counsel that the detention on remand be lifted (opheffing van het bevel tot voorlopige hechtenis), or in the alternative be suspended (schorsing van het bevel tot voorlopige hechtenis). The Regional Court rejected both requests. The official record of the hearing (proces-verbaal) included the following:
“The request that the detention on remand be lifted is dismissed. The indications and grounds still exist. On the one hand, the statement of [Mr X] is corroborated by the statement of [Mr Y], irrespective of how limited this statement may be. [Mr Y] stated that he was afraid and related that hitting and kicking had taken place. In addition a weapon has been found. On the other, there is the footage of the Esso petrol station. The suspect’s detention on remand is based on the needs of the criminal investigation (onderzoeksgrond), this can be different after next week. The twelve-years ground (twaalfjaarsgrond) still exists. The risk of re-offending is partly based on the suspect’s criminal record and partly on the fact that the collection of the money (incasso), the motive [why the applicant had allegedly committed the offences], has apparently not yet been solved.
The request that the detention on remand be suspended is dismissed. The personal interests of the suspect, as adduced, are outweighed by the prosecution interest in the continuation of the detention on remand (het belang van strafvordering bij voortduring van de voorlopige hechtenis).”
10. On 11 and 12 July 2016 the applicant, two co-suspects, the person who filed the criminal complaint (aangever) and a witness were heard by an investigation judge of the Rotterdam Regional Court.
11. On 13 July 2016 the applicant submitted, through counsel, a fresh request to lift his detention on remand. He argued, referring to the statements made before the investigation judge that everyone, but the person who filed the police report, had stated that he had not exercised any coercion and that everything had happened on a voluntary basis. According to the applicant the suspicion of hostage-taking, illegal restraint and extortion, for which he was placed in detention on remand, was therefore solely based on the statements of the person who had filed the police report and was no longer corroborated by the statements of the other persons involved. He argued that the indications and reasons which had led to the order for his detention on remand no longer existed.
12. On 4 August 2016 the Rotterdam Regional Court, following a hearing in camera dismissed the request. The decision included the following:
“Having regard to the official record of the suspect’s questioning (proces-verbaal van verhoor van de verdachte) on 11 July 2016.
Considering that the Regional Court, after examination, finds that the grounds, which have led to the order for the applicant’s extended detention on remand still exist, the request for the detention on remand to be lifted has to be dismissed.”
13. On 5 August 2016 the applicant appealed to the Court of Appeal of The Hague. Counsel for the applicant argued that the decision of the Rotterdam Regional Court, dismissing his request for his detention on remand to be lifted, lacked any reasoning, especially concerning the existence of serious reasons.
14. On 1 September 2016 the Court of Appeal (gerechtshof) of The Hague, following a hearing in camera dismissed the appeal. The decision included the following:
“Considering, that the Court of Appeal concurs with the impugned decision and the grounds on which it is based.”
15. No further appeal lay against this decision.
16. On 16 September 2016 the applicant’s detention on remand was lifted.
B. Relevant domestic law and practice
17. The relevant domestic law and practice are set out in Geisterfer v. the Netherlands, no. 15911/08, 9 December 2014.
COMPLAINTS
18. The applicant complains under Article 5 §§ 1 and 3 of the Convention that his pre-trial detention from 13 July 2016 until 16 September 2016 lacked adequate justification, or in the alternative, that the respective decisions taken by the domestic courts lacked sufficient reasoning.
19. Invoking Article 5 § 3 of the Convention the applicant further complains that the Rotterdam Regional Court and the Court of Appeal of The Hague failed to entertain his request for his pre-trial detention to be lifted with the necessary promptness and diligence as it took them 22 and 26 days respectively to take a decision.
QUESTIONS TO THE PARTIES
1. Was the applicant’s pre-trial detention in the period from 13 July 2016 until 16 September 2016 justified under Article 5 § 1 (c) and under Article 5 § 3 of the Convention?
2. In particular, was the reasoning contained in the decisions of the Rotterdam Regional Court and the Court of Appeal of The Hague of 4 August 2016 and 1 September 2016 respectively, adequate and sufficient? Furthermore, have the competent national authorities displayed special diligence in the conduct of the proceedings?
3. Have the Rotterdam Regional Court and the Court of Appeal of The Hague taken their decisions on the applicant’s request to lift his pre-trial detention speedily as required by Article 5 § 4?
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