THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 28831/04
by Antonio Kialauda KANZI
against the Netherlands
The European Court of Human Rights (Third Section), sitting on 5 July 2007 as a Chamber composed of:
MrC. Bîrsan, President,
MrsE. Fura-Sandström,
MrsA. Gyulumyan,
MrE. Myjer,
MrDavid Thór Björgvinsson,
MrsI. Ziemele,
MrsI. Berro-Lefèvre, judges,
and Mr S. Quesada, Section Registrar,
Having regard to the above application lodged on 30 July 2004,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Antonio Kialauda Kanzi, is a Dutch national who was born in 1980 and lives in Meerssen. He was 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 11 February 2004, the applicant was arrested and taken into police custody (inverzekeringstelling) on suspicion of trafficking drugs.
On 13 February 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 there exists a justified fear for recidivism: there is namely a substantial possibility that the suspect will commit an offence which, according to the legal definition, attracts a prison sentence of six years or more; (there is fear for recidivism), which appears from the circumstance:
- that there are reasons to believe that the suspect is involved in drug trafficking, which trade is so lucrative that the suspect will be unable or unwilling to do without this source of income.”
On 19 February 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.”
On 18 March 2004, after having heard the applicant, the Maastricht Regional Court prolonged the applicant’s detention on remand by a further thirty days. It held:
“The Regional Court considers that, after examination, it has appeared that the suspicion, indications and grounds, which have led to the order for the suspect’s further detention on remand (bevel gevangenhouding), currently still exist.”
The applicant’s appeal against the decision of 18 March 2004 – in which he relied inter alia on the Court’s considerations in the case of Guzzardi v. Italy, (judgment of 6 November 1980, Series A no. 39, p. 38, § 102) – was rejected on 8 April 2004 by the ‘s-Hertogenbosch Court of Appeal (gerechtshof). It upheld the impugned decision, holding:
“considering that the Court of Appeal concurs with the above-cited ruling and the grounds on which it is based, on the understanding that the [applicant’s] pre-trial detention is also based on the following weighty reason of public safety, namely:
it concerns suspicion of a fact which, according to the legal definition, attracts a prison sentence of twelve years or more and this fact has seriously rocked the legal order, consequently the appeal must be dismissed.”
By judgment of 19 May 2004, following a hearing held on 6 May 2004, the Maastricht Regional Court convicted the applicant of two counts of drug offences and, in accordance with the provisions of inter alia Articles 10 and 11 of the Opium Act (Opiumwet), sentenced him to eight months’ imprisonment of which four were suspended pending a two years’ probationary period, and with deduction of the time spent in pre-trial detention. In addition, it imposed a fine of 800 euros. In the determination of its sentence, the Regional Court took into account that the applicant had never been convicted previously of a drug offence. 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;
- 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.”
COMPLAINT
Relying on the Court’s considerations in the cases of Guzzardi v. Italy, (judgment of 6 November 1980, Series A no. 39, p. 38, § 102), Clooth v. Belgium, (judgment of 12 December 1991, Series A no. 225, p. 15, § 40), and Letellier v. France (judgment of 26 June 1991, Series A no. 207, p. 21, § 51), the applicant complained that the order for his further detention on remand contravened his rights under Article 5 of the Convention, in that there were no concrete indications of a real risk of recidivism if he were released from pre-trial detention, or that his release would cause unrest in society. In his opinion, the reasons given by the Court of Appeal for rejecting his appeal were no more than conjecture.
THE LAW
The applicant complained that the order for 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, § 110 et 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 and that the order for his further detention on remand, as reviewed by the Court of Appeal, was based on the serious indications against the applicant which went beyond a mere suspicion, the risk of recidivism 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”. Moreover, 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 11 February 2004 when he was arrested until 19 May 2004 when he was convicted by the Maastricht Regional Court, thus amounting to a total of three months and seven 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 invoked by the applicant. The case of Guzzardi v. Italy (cited above) concerned a deprivation of liberty having lasted about one year and five-and-a-half months, the case of Clooth v. Belgium (cited above) a period of more than three years and two months, and the case of Letellier v. France (cited above) a period of two years and nine months.
Given the relatively limited duration of the applicant’s pre-trial detention and the diligence with which the criminal proceedings against him were conducted and whatever the risk of recidivism may have been, the Court accepts – reiterating its understanding of domestic authorities’ firmness with regard to those actively involved in drug offences (see, amongst others and mutatis mutandis, Sezen v. the Netherlands, no. 50252/99, § 43, 31 January 2006) – that the serious indications against the applicant taken together with the public order considerations as expressed by the Court of Appeal constituted “relevant” and “sufficient” grounds for ordering the applicant’s further detention on remand.
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 QuesadaCorneliu Bîrsan
RegistrarPresident
Full & Egal Universal Law Academy