THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 20510/02
by Gijsbert Bertus VAN THUIL
against the Netherlands
The European Court of Human Rights (Third Section), sitting on 9 December 2004 as a Chamber composed of:
MrB.M. Zupančič, President,
MrJ. Hedigan,
MrL. Caflisch,
MrsM. Tsatsa-Nikolovska,
MrV. Zagrebelsky,
MrsA. Gyulumyan,
MrDavid Thór Björgvinsson, judges,
and Mr M. Villiger, Deputy Section Registrar,
Having regard to the above application lodged on 16 May 2002,
Having deliberated, decides as follows:
THE FACTS
The applicant, Gijsbert Bertus van Thuil, is a Netherlands national who was born in 1952 and, at the time of the introduction of the application, was detained in a remand centre in Hoogeveen. He is represented before the Court by Mr S.T. van Berge Henegouwen, 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 21 November 2001, the applicant was arrested and placed in police custody (inverzekeringstelling) for a maximum of three days on suspicion of involvement in the exportation of synthetic drugs. At the time of his arrest, 1,500 US Dollars was found on him. The search of the premises where he was arrested resulted in the finding of, inter alia, a plastic bag with eight pills with a horse-like logo, a pill with a euro logo, an order for dried flowers, a Netherlands passport in the applicant's name, a Belgian passport in the name of a Mr X. containing an identity photograph of the applicant, two papers with telephone numbers and two address books. When heard on 21 November 2001 in connection with his placement in police custody, the applicant stated that he knew that he did not have to answer any questions, that he understood that he had been arrested in connection with trafficking in and/or exporting hard drugs, and that he wished to be represented by a lawyer.
When heard by the police on 22 November 2001, the applicant stated, inter alia, that he had been convicted and sentenced to five years' imprisonment in the past for drug offences, that he knew nothing about drugs, that he had obtained the Belgian passport from a man from Limburg and that the particulars therein had been made up, and that the pills found, which looked like XTC pills, might have been left behind by one of his acquaintances who had visited him. He further stated that he did not know anything about the transport of more than 1,000,000 XTC pills which had been seized in Germany on 20 November 2001. After he had been confronted with photographs taken under surveillance, the applicant stated that he only recognised someone whom he knew as John, an acquaintance who visited him sometimes. He did not know the other persons in the photographs shown to him.
On 23 November 2001, the applicant was heard by the investigating judge (rechter-commissaris) of the Amsterdam Regional Court (arrondissementsrechtbank) on the public prosecutor's request to place the applicant in detention on remand (inbewaringstelling) on suspicion of his involvement in the exportation of an estimated quantity of 1,600,000 XTC pills, membership in a criminal organisation involved in drugs offences, and the possession of a Belgian passport he knew to be forged.
The public prosecutor's request was accompanied by the written record of the provisional findings in the criminal investigation (voorgeleidingsproces-verbaal). This written record ran to 298 pages and consisted of a full account of the criminal investigation (relaas van onderzoek) and the relevant appendices, including the written records of the arrest of the applicant and two co-suspects, their subsequent questioning by the police, six searches, the notifications of seizures, the finding – on 11 November 2001 on a drugs courier – of four bags containing 3,718 kg. pills tested positive for XTC, a report dated 22 November 2001 from the German authorities stating that the substance found in seized cardboard boxes had tested positive for XTC, the summaries of 36 conversations intercepted on tapped telephones used by co-suspects, a written record on a surveillance operation conducted on 10 November 2001 and on the authenticity verification of the two passports found in the search when the applicant was arrested. These written records were made available to the applicant.
According to the written record of the investigation, in September 2001 the Amsterdam-Amstelland Regional Criminal Intelligence Unit (Regionale Criminele Inlichtingen Eenheid) had received information about several persons involved in XTC trafficking. On this basis, as of 28 September 2001, an investigation was made into a group of persons involved in the commission of drug offences under the direction of one of these persons, Mr E. This investigation disclosed, inter alia, that the applicant was apparently involved in exporting XTC. In the course of the investigation, the authorities had intercepted telephone conversations, conducted surveillance operations and intercepted various XTC shipments. Two drug couriers had been arrested on 10 November 2001 in the United Kingdom upon their arrival on a flight from Amsterdam; one drug courier had been arrested on 11 November 2001 in the Netherlands and, on 20 November 2001, a shipment of about 1,600,000 XTC pills – packed in cardboard boxes hidden between boxes of dried flowers and transported in a truck driven by a Netherlands driver, Mr B. – had been intercepted by the German authorities when the driver was unloading the XTC in Lübeck (Germany). The truck driver had apparently transported these boxes on the instructions of the applicant, who in turn had acted under instructions from Mr E. who would have bought the XTC from the applicant. In the course of surveillance carried out, the applicant had often been seen in the company of Mr B.
When heard by the investigating judge on 23 November 2001, the applicant submitted that the suspicions against him were based on unsubstantiated conclusions drawn by the investigating authorities and therefore could not be taken into account in assessing the question whether there were serious suspicions (ernstige bezwaren) against him. He contended that the written record of the provisional findings in the criminal investigation had not been accompanied by documents containing the facts and/or circumstances from which these conclusions had been drawn by the investigating authorities (e.g. the surveillance records, or the record of the intercepted communications and/or statements taken in the course of the investigation).
On the same day, the investigating judge ordered the applicant's detention on remand for a period of ten days. Noting the applicant's suspected involvement in the exportation of an estimated quantity of 1,600,000 XTC pills, his membership in a criminal organisation and his possession of a forged Belgian passport, the investigating judge considered that there were grave suspicions against the applicant. The judge found that there was a serious risk of the applicant absconding and that there were important reasons of public safety (gewichtige redenen van maatschappelijke veiligheid) which required his immediate detention: the offence of which he was suspected could attract a 12-year prison sentence; the legal order had been seriously shaken by that offence; there was a serious risk that the applicant would commit a further offence whereby the health of persons might be endangered, and the applicant, in view of statements made and/or drugs found, was apparently involved in extensive drug trafficking.
By letter of 27 November 2001, the applicant's lawyer informed the public prosecutor that it appeared from the copies of the written records (processen‑verbaal) with which he had been provided that, in the course of the investigation, several so-called special investigative powers (bijzondere opsporingsbevoegdheden) had been deployed. He requested the public prosecutor to provide him with all the written records and orders relating to the exercise of these powers.
On 29 November 2001, the applicant was heard by the Amsterdam Regional Court on the public prosecutor's request for his further detention on remand (gevangenhouding). At this hearing, the applicant requested the Regional Court to lift his pre-trial detention, arguing that the investigating judge had unjustly assessed the seriousness of the suspicions against him on the basis of conclusions drawn by the police, whereas the facts and/or circumstances (e.g. the surveillance records or the intercepted communications and/or statements taken in the course of the investigation), on which these police conclusions were based, were not included in the case file. On the same day, the Amsterdam Regional Court ordered the applicant's further detention on remand for a period of thirty days. It considered, after having heard the prosecutor and the applicant, that the suspicion and grounds which had led to the applicant's detention on remand were still pertinent.
By letter of 1 December 2001, the Amsterdam public prosecutor dealing with the applicant's case informed the latter's lawyer that he would shortly transmit copies of all written records and orders issued in the applicant's case. However, owing to the prosecution's workload, this could not be done immediately. The public prosecutor added that no documents would be withheld, as the interests of the investigation did not require that.
On 24 December 2001, acting on a request by the public prosecutor, the Amsterdam Regional Court prolonged the applicant's further detention on remand by thirty days. After having heard the prosecutor and the applicant, it considered that the suspicion and grounds which had led to the applicant's further detention on remand were still pertinent.
On 27 December 2001, the applicant filed an appeal against the decision of 24 December 2001 with the Amsterdam Court of Appeal (gerechtshof).
On 11 January 2002, the public prosecutor transmitted to the applicant's lawyer copies of the requests, authorisations and orders in respect of the investigative powers that had been used in the applicant's case. These documents were accompanied by various written records containing the findings of the investigation authorities in support of their requests for authorisation to use special investigative powers.
On 22 January 2002, acting on a request by the public prosecutor and having noted that the applicant had indicated in writing that he did not wish to be heard on that request, the Amsterdam Regional Court prolonged the applicant's detention on remand for a further period of thirty days, considering that the suspicion and grounds which had led to the applicant's further detention on remand were still pertinent.
On 6 February 2002, having noted the impugned decision of 24 December 2001 and the documents relating to the applicant's pre-trial detention, and after having heard the parties, the Court of Appeal rejected the applicant's appeal and upheld the decision of 24 December 2001. As regards the applicant's request – made orally at the hearing – to lift his pre-trial detention on the same grounds as those he had raised before the Regional Court on 29 November 2001, the Court of Appeal considered that the serious reasons of public safety referred to in the order for the applicant's further detention on remand, and which continued to require his detention, outweighed the applicant's interests in being released and, consequently, rejected the request.
On an unspecified date at the end of February 2002 and after having received copies of the written records containing the results of the special investigative powers that had been used in the criminal investigation, the applicant's lawyer requested that several witnesses be heard. At the time of the introduction of the application, first-instance trial proceedings against the applicant had started. No further information about these trial proceedings has been submitted.
B. Relevant domestic law and practice
Pursuant to Article 152 of the Code of Criminal Procedure (Wetboek van Strafvordering – the “CCP”), officials with powers of investigation into offences must record as soon as possible in writing (proces‑verbaal) the investigated punishable fact or what they have done or found in the investigation.
Article 133 of the CCP defines pre-trial detention (voorlopige hechtenis) as a 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.
An order for pre-trial detention can only be issued against persons suspected of an offence attracting a punishment of four years or more, or of a number of other specified criminal acts (Article 67 § 1 of the CCP). Pursuant to Article 67 § 3 of the CCP, pre-trial detention can only be applied when it appears from the facts or circumstances that there are serious suspicions against the suspect (“wanneer uit feiten of omstandigheden blijkt van ernstige bezwaren tegen de verdachte”). Orders for pre-trial detention are immediately enforceable (Article 73 § 1 of the CCP).
A (deputy) public prosecutor is competent to order the arrest of a person suspected of having committed a criminal offence, in respect of which detention on remand may be ordered (Article 54 of the CCP). A (deputy) public prosecutor can further order a person's subsequent detention in police custody (inverzekeringstelling), after having seen and heard that person (Article 57 of the CCP). An order for detention in police custody can only be issued in respect of offences for which detention on remand may be ordered. A custody order is valid for a maximum of three days and may only be prolonged for a further maximum period of three days (Article 58 of the CCP). No appeal lies against a police custody order.
Article 59a of the CCP requires that no later than three days and fifteen hours after the arrest, the suspect must be brought before an investigating judge in order to be heard. On that occasion the suspect may request the investigating judge to order his or her release (Article 59a § 4 of the CCP). Where the investigating judge finds the police custody order unlawful, the suspect's immediate release must be ordered (Article 59a § 5 of the CCP). In order to prolong the detention of a suspect, the public prosecutor can request the investigating judge to issue an order for detention on remand under Article 63 of the CCP. A remand order given by the investigating judge is valid for a maximum period of ten days (Article 64 § 1 of the CCP).
Although no direct appeal lies against a remand order, a person whose detention on remand has been ordered can, in accordance with Article 69 § 1 of the CCP, apply to the Regional Court for a lifting order (opheffing voorlopige hechtenis). Under Article 87 § 2 of the CCP, an appeal against a rejection by the Regional Court of a first request to lift the detention on remand may be lodged with the Court of Appeal.
Upon a request by the public prosecutor, the Regional Court can, after having heard the suspect, order the prolongation (gevangenhouding) of the original remand order of the investigating judge (Article 65 of the CCP). The Regional Court's order for further detention on remand is valid for a maximum period of thirty days (Article 66 of the CCP).
An appeal against an order for further detention on remand lies to the Court of Appeal who is to determine such an appeal as soon as possible (Article 71 of the CCP).
According to Article 30 § 2 of the CCP, the investigating judge or the public prosecutor can, if the interests of the investigation so require, withhold certain case file documents from the suspect. In that case, the suspect will be informed in writing that the documents available to him or her are incomplete. If documents are withheld from a suspect, the latter can file an objection (bezwaar), within fourteen days after the notification of the decision, to the court to which the public prosecutor or investigating judge is attached, which court must determine the matter as soon as possible (Article 32 of the CCP).
Pursuant to Article 33 of the CCP, a suspect must be given access to all documents in the case file as soon as the decision to close the preliminary judicial investigation has become final or, where there has been no preliminary judicial investigation, as soon as the decision to pursue the prosecution or the indictment has been served on the suspect.
COMPLAINTS
Relying on Articles 5 and 6 of the Convention, the applicant complains that the investigating judge, in his decision to order his detention, assessed the seriousness of the suspicions only on conclusions drawn by the police, without any documents containing the facts and/or circumstances on which those conclusions were based. The applicant argues that a conclusion drawn by the police can never constitute a reason for an independent and impartial judge to issue a pre-trial detention order and that, in his case, the alleged suspicions were based on documents to which the defence did not have or was not allowed to have access. Given the Court's finding in its judgment in the case of Lamy v. Belgium (judgment of 30 March 1989, Series A no. 151), this must be regarded as being contrary to Article 5 of the Convention.
The applicant further complains under Article 5 § 4 of the Convention that the proceedings on his appeal of 27 December 2001 were not conducted speedily. He submits that his appeal concerned a pre-trial detention order with a validity of thirty days which had already expired on 6 February 2002 when the Court of Appeal examined his case.
The applicant lastly complains that, as his appeal of 27 December 2001 was only examined on 6 February 2002 when the impugned order had already expired, he did not have access to an appeal court and was thus deprived of an effective remedy within the meaning of Article 13 of the Convention.
THE LAW
1. The applicant complains under Articles 5 and 6 of the Convention that the order for his detention on remand was given by the investigating judge without his having had access to the documents in the case file which were relevant to that question. He relies in this respect on the Court's judgment in the case of Lamy v. Belgium (judgment of 30 March 1989, Series A no. 151).
Article 5 of the Convention, in so far, as relevant, reads as follows:
“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; ...”
The relevant part of Article 6 of the Convention provides as follows:
“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ...
3. Everyone charged with a criminal offence has the following minimum rights:
(b) to have adequate time and facilities for the preparation of his defence; ...”
The Court recalls that the “reasonableness” of the suspicion on which an arrest must be based forms an essential part of the safeguards against arbitrary arrest and detention laid down in Article 5 § 1 (c) of the Convention. This requires the existence of some facts or information which would satisfy an objective observer that the person concerned may have committed the offence, though what may be regarded as reasonable will depend on all the circumstances of the case. The standard imposed by Article 5 § 1 (c) does not presuppose that the investigation authorities have sufficient evidence to bring charges at the time of arrest. The object of any questioning during detention under sub-paragraph (c) of Article 5 § 1 is to further the criminal investigation by way of confirming or dispelling the concrete suspicion grounding the arrest. Thus facts which raise a suspicion need not be of the same level as those necessary to justify a conviction, or even the bringing of a criminal charge (see O'Hara v. the United Kingdom, no. 37555/97, §§ 34 and 36 with further references, ECHR 2001-X).
The Court notes that the applicant was arrested and placed in police custody on suspicion of being involved in the exportation of synthetic drugs. After two days and after having been questioned by the police, he was brought before the investigating judge who, on the basis of the written record of the provisional findings in the criminal investigation, ordered the applicant's detention on remand.
The standard of suspicion set by domestic law for detention on remand is “when it appears from facts or circumstances that there are serious suspicions against the suspect” (Article 67 § 3 of the CCP). The applicant contends that the order for his detention on remand was not justified by such a suspicion in the absence of further substantiation in the form of written records containing the results of the use of the specific investigative powers in that investigation. This argument was examined and rejected by the investigating judge, the Regional Court and the Court of Appeal, successively. The Court finds that these judicial proceedings must be regarded as providing a significant safeguard against arbitrary arrest and pre-trial detention.
The Court notes that the suspicions against the applicant were based on information collected in the course of the investigation, as set out in the written record of the provisional findings in the criminal investigation. It further notes that, unlike the situation examined by the Court in the above cited case of Lamy v. Belgium where the applicant was only provided with a copy of the warrant for his arrest and was unable to inspect anything in the case-file during the first thirty days of pre-trial detention, the present applicant had been given access to the relevant written records. The Court therefore considers that the present case can be distinguished from that of Lamy v. Belgium.
The Court considers that the conclusion of the domestic judicial authorities that the information contained in the written records was sufficient to give rise to serious suspicions against the applicant, within the meaning of Article 67 § 3 of the CCP, justifying his detention on remand, cannot be regarded as arbitrary, unreasonable or otherwise incompatible with the standard imposed by Article 5 § 1 (c) of the Convention.
Insofar as the applicant also invokes Article 6 of the Convention, the Court recalls that the primary purpose of Article 6 is to ensure the fairness of the proceedings as a whole (see Nikolova v. Bulgaria (dec.), no. 31195/96, 27 February 1997). Accordingly, a person in pre-trial detention cannot, in principle, claim to be a victim of a violation of this provision when the criminal proceedings against him are still pending and when no final conviction has yet been pronounced (see Kawka v. Poland (dec.), no. 25874/94, 17 May 1995, and Ilijkov v. Bulgaria (dec.), no. 33977/96, 20 October 1997).
In the present case, the applicant's complaint concerns the initial stages of the criminal proceedings and not the trial before a “tribunal” within the meaning of Article 6 § 1 of the Convention. The judicial authorities who ordered the applicant's remand in custody were not called upon to determine any “criminal charge” against him. On the contrary, at the time of the introduction of the application, the trial proceedings against the applicant were still pending at first instance. Consequently, the applicant's complaint under Article 6 of the Convention must be rejected as being premature.
It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
2. The applicant further complains under Article 5 § 4 of the Convention that the proceedings on his appeal of 27 December 2001 were not conducted speedily, with the result that, when it was examined on 6 February 2002, the impugned order had already expired. He therefore claims that he did not have access to an appeal court and was thus deprived of an effective remedy, within the meaning of Article 13 of the Convention.
Article 5 § 4 of the Convention reads as follows:
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
Article 13 of the Convention, which concerns effective remedies, is superfluous in the context of the present case where Article 5 § 4 constitutes the lex specialis.
The Court notes at the outset that it does not appear that, on the basis of these complaints, the applicant took proceedings under Article 69 § 1 of the CCP before the Regional Court, seeking an order lifting his detention on remand. The question thus arises whether the applicant has exhausted domestic remedies, as required by Article 35 § 1 of the Convention. However, the Court does not find it necessary to determine this matter as the complaints are in any event manifestly ill-founded for the reasons set out below.
The Court recalls that Article 5 § 4 of the Convention guarantees to those detained the right to a speedy review of the lawfulness of their deprivation of liberty. Although Article 5 § 4 of the Convention does not guarantee a right of appeal against an unsuccessful review, it follows from the aim and purpose of this provision that its requirements must still be respected if an appeal procedure is available (see Rutten v. the Netherlands, no. 32605/96, § 53, 24 July 2001). The requirement of speed under Article 5 § 4 of the Convention is to be determined in the light of the circumstances of each case (see Rehbock v. Slovenia, no. 29462/95, § 84, ECHR 2000-XII; M.B. v. Switzerland, no. 28256/95, § 37, 30 November 2000; and Samy v. the Netherlands (dec.), no. 36499/97, 4 December 2001).
The Court notes that, in the present case, the Amsterdam Regional Court decided on 24 December 2001 to prolong the applicant's pre-trial detention by thirty days and that the applicant filed an appeal against this decision with the Amsterdam Court of Appeal on 27 December 2001, which rejected it on 6 February 2002. In the meantime, on 22 January 2002, pending these appeal proceedings and shortly before the expiry of the validity of the impugned decision of 24 December 2001, the Regional Court had prolonged the applicant's pre-trial detention by another period of thirty days.
The Court considers that, where an order for pre-trial detention has been made by a competent judge or court, the detention must, in principle, be considered to be lawful and not arbitrary, especially where an appeal is available. Such appeals provide additional guarantees aimed primarily at an evaluation of the appropriateness of continuing the pre-trial detention.
The Amsterdam Regional Court which took the decision of 24 December 2001 prolonging the applicant's pre-trial detention is a court within the meaning of Article 5 § 4 of the Convention. When taking its decision, this court confirmed the applicant's further pre‑trial detention, thereby reviewing its lawfulness. It did so once more when, on 22 January 2002, it took the decision to prolong the applicant's detention by another period of thirty days. The applicant's appeal to the Court of Appeal against the decision of 24 December 2001 constituted an additional guarantee in order to verify whether continuation of the detention was necessary. In these circumstances, the Court is of the opinion that although the proceedings before the Court of Appeal may have been longer than desirable, viewed as a whole together with the parallel remand proceedings, the applicant's rights under Article 5 § 4 of the Convention cannot be said to have been breached.
It follows that this part of the application must also 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.
Mark VillgerBoštjan M. Zupančič
Deputy RegistrarPresident
Full & Egal Universal Law Academy