Published on 24 October 2022
FOURTH SECTION
Application no. 36141/21
Fatih KAYA
against the Netherlands
lodged on 12 July 2021
communicated on 4 October 2022
SUBJECT MATTER OF THE CASE
The applicant’s pre-trial detention, which started on 26 November 2020, was based on the existence of a reasonable suspicion of his involvement in narcotics trade and export and, initially, on grounds relating to a risk of reoffending, a risk of serious upset to the legal order, and a risk of his frustrating the ongoing investigation. On 20 January 2021 the Zeeland‑West‑Brabant Regional Court dismissed the applicant’s request for the conditional suspension of his pre-trial detention. The applicant’s appeal against this decision was dismissed by the ‘s-Hertogenbosch Court of Appeal on 18 February 2021. On 12 March, 1 June (on which occasion it was held that the risk of the applicant frustrating the ongoing investigation no longer obtained) and 7 July 2021, respectively, the Regional Court dismissed the applicant’s subsequent requests for a conditional suspension. In each of these decisions the courts held that the applicant had not adduced compelling personal interests that justified such a suspension and/or that his personal interests did not (yet) outweigh the interests of continued detention.
In support of his requests the applicant had submitted, inter alia, a court-ordered advisory opinion of the probation and social rehabilitation service (reclasseringsadvies), dated 30 June 2021, and/or a self-commissioned probation report by a private organisation, dated 11 January 2021, both recommending the suspension of his pre-trial detention under certain conditions.
The applicant complains under Article 5 § 3 of the Convention that the refusals to suspend his pre-trial detention were not based on relevant and sufficient reasons and that feasible alternatives to detention were not seriously considered. Under Article 5 § 4 of the Convention he complains that the appeal lodged on 22 January 2021 was not decided upon speedily.
QUESTIONS TO THE PARTIES
1. Has there been a violation of Article 5 § 3 of the Convention? In particular, were the Zeeland-West-Brabant Regional Court’s decisions of 20 January, 12 March, 1 June and 7 July 2021 – dismissing the applicant’s requests to conditionally suspend his detention on remand – and the ‘s‑Hertogenbosch Court of Appeal’s decision of 18 February 2021 – upholding the Regional Court’s decision of 20 January 2021 – sufficiently reasoned, taking into account the analysis and conclusions set out in the self-commissioned probation report by a private organisation of 11 January 2021 and the court-ordered advisory opinion of the probation and social rehabilitation service (reclasseringsadvies) of 30 June 2021, both of which were submitted to the courts on the applicant’s behalf (see Zherebin v. Russia, no. 51445/09, §§ 50-54 and 61-62, 4 March 2016; Hasselbaink v. the Netherlands, no. 73329/16, §§ 67-73, 9 February 2021; and Maassen v. the Netherlands, no. 10982/15, §§ 53-59, 9 February 2021)?
2. Did the Court of Appeal take its abovementioned decision “speedily” as required by Article 5 § 4 of the Convention (see Hasselbaink, cited above, §§ 84-86)?