Communicated on 19 May 2017
THIRD SECTION
Application no. 59133/16
Jean Philippe Armand NEVÉ
against the Netherlands
lodged on 5 October 2016
STATEMENT OF FACTS
1. The applicant, Mr J.P.A. Nevé, is a Dutch national who was born in 1984 and lives in Amsterdam. He is represented before the Court by Mr R.C. Fransen, a lawyer practising in Amsterdam.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Criminal proceedings relating to suspicion of a first criminal offence
3. On 15 April 2016 the applicant was arrested and taken into police custody (inverzekeringsstelling) on suspicion of shoplifting.
4. On 18 April 2016 an investigating judge (rechter-commissaris) of the Amsterdam Regional Court (rechtbank) issued an order for the applicant to be placed in detention on remand (inbewaringstelling) for fourteen days.
5. On the same day the investigating judge noted that, even though the indications and grounds for the detention on remand still pertained, there were reasons to order the suspension of the applicant’s pre-trial detention (schorsing van de voorlopige hechtenis). The suspension of the applicant’s pre-trial detention was subject to, inter alia, the condition “that the suspect not commit a new criminal act” (“de verdachte zal zich niet aan een strafbaar feit schuldig maken”).
2. Criminal proceedings relating to suspicion of a second criminal offence
6. On 25 September 2016 the applicant was once again arrested on suspicion of shoplifting.
7. When questioned by police on that same day, the applicant invoked his right to remain silent and stated that he would only make a statement before the investigating judge. In the course of a subsequent questioning, also on 25 September 2016, by an assistant public prosecutor (hulpofficier van justitie), the applicant stated “I do not steal, I take”. The assistant public prosecutor ordered the applicant be taken into police custody.
3. Proceedings concerning the revocation of the suspension
8. On 27 September 2016 the prosecutor requested the investigating judge of the Amsterdam Regional Court to revoke the suspension of the applicant’s pre-trial detention which related to the suspicion of the first criminal offence as set out above (paragraphs 3-5). According to the prosecutor, the applicant had, as appeared from an official record (process‑verbaal) enclosed with the request, not complied with the conditions attached to the suspension of his pre-trial detention as he had committed a new criminal offence.
9. On 27 September 2016, at the hearing before the investigating judge, the applicant denied the allegations against him. Counsel for the applicant argued, with reference to this Court’s judgment in El Kaada v. Germany (no. 2130/10, 12 November 2015), that his client’s not having been found guilty by a court of the second offence of which he was suspected stood in the way of the revocation of the suspension of the pre-trial detention.
10. The investigation judge granted the public prosecutor’s request for the revocation of the suspension of the applicant’s pre-trial detention. He reasoned this decision stating that he was of the view that it was abundantly clear that there were serious indications justifying the revocation of the suspension of the pre-trial detention (“... dat er overduidelijk ernstige bezwaren zijn op grond waarvan de opheffing van de schorsing kan plaatsvinden”). He added that he saw no obstacles in light of the case-law of this Court.
11. The written court order for the revocation of the suspension of the pre-trial detention, issued that same day pursuant to the decision of the investigating judge, stated that “it appeared that the suspect has not complied with one or more conditions attached to the suspension of his pre-trial detention” (“gebleken is dat verdachte zich niet heeft gehouden aan één of meer voorwaarden, die verbonden waren aan de schorsing van zijn voorlopige hechtenis”).
B. Relevant domestic law
12. The relevant domestic law and practice are set out in Geisterfer v. the Netherlands, no. 15911/08, 9 December 2014.
13. In addition, the relevant part of Article 82 of the Code of Criminal Procedure (“the CCP”) provides:
“1. The court may, ex officio or on the application of the Public Prosecution Service, order the revocation of the suspension at any time. ...”
COMPLAINT
14. The applicant complains under Article 6 § 2 of the Convention that the decision of the investigation judge of the Regional Court of Amsterdam of 27 September 2016 to revoke the suspension of his pre-trial detention for the reason that he had not complied with the conditions attached to that suspension violated the presumption of innocence.
QUESTION TO THE PARTIES
Was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected by the decision of 27 September 2016 of the investigation judge of the Regional Court of Amsterdam revoking the suspension of the applicant’s pre-trial detention?
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