Communicated on 29 August 2017
THIRD SECTION
Application no. 69491/16
Ferdinand Gerardus ZOHLANDT
against the Netherlands
lodged on 16 November 2016
STATEMENT OF FACTS
1. The applicant, Mr Ferdinand Gerardus Zohlandt, is a Dutch national. He was born in 1961 and lives in Uden. He is represented before the Court by Mr A.M. Smetsers, a lawyer practising in Nijmegen.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. On 13 June 2016 the applicant was arrested and placed in police custody (inverzekeringsstelling) on suspicion of attempted aggravated assault (poging tot zware mishandeling) and illegal possession of a firearm.
4. On 16 June 2016 the applicant was taken into initial detention on remand (bewaring) for fourteen days by order of an investigating judge (rechter-commissaris) of the Oost-Brabant Regional Court (rechtbank). The order included the following grounds for detention:
“Considering, that there are serious indications (ernstige bezwaren) against the suspect,
Considering, that there are serious reasons of public security requiring the immediate deprivation of liberty,
because 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;
- by which the health or safety of persons will be endangered (waardoor de gezondheid of veiligheid van personen in gevaar kan worden gebracht);
which follows from the circumstances that:
- the suspect is suspected of one or more [criminal] acts which only came to an end after intervention by the police/criminal justice authorities;
- the suspect is suspected of one or more act(s) while the circumstances of the suspect and/or the conditions under which those acts have been committed have remained unchanged (terwijl de omstandigheden van verdachte en/of de omstandigheden waaronder deze feiten zijn gepleegd, ongewijzigd zijn gebleven);
- the suspect has previously come into contact with the police and criminal justice authorities for similar acts (is al eerder in aanraking geweest met politie and justitie voor soorgelijke feiten).”
5. On 29 June 2016 the applicant was taken into extended detention on remand (gevangenhouding) for thirty days by order of the Oost‑Brabant Regional Court. The order included the following grounds:
“A serious reason of public security requiring the immediate deprivation of the suspect’s liberty, as apparent from:
- that because of the suspect’s mentality (op grond van verdachtes mentaliteit), as apparent from the nature of the act at issue and the circumstances under which the act was committed, as stated in the order for the suspect’s initial detention, there is a serious likelihood that the suspect will commit a crime:
a. which carries a statutory prison sentence of six years or more, namely an offence similar to the one of which he is currently suspected,
b. by which people’s health or safety will be endangered.”
6. In a separate decision of the same date the Regional Court dismissed a request from the applicant for the suspension of his detention on remand (schorsing van de voorlopige hechtenis), holding that the interests of the prosecution outweighed the personal interests of the applicant.
7. On 29 July 2016 the applicant requested through counsel that his detention on remand be lifted (opheffing van het bevel tot voorlopige hechtenis).
8. Firstly, the applicant submitted that the Regional Court had only relied on the risk of reoffending when ordering and prolonging the pre-trial detention. In doing so, it had referred to his mentality, as apparent from the nature of the act and the circumstances in which the act had been committed, as stated in the order for his initial detention on remand.
9. The applicant then went on to contest those circumstances. As to the first circumstance, that the criminal act of which he was suspected had only come to an end after the police had intervened, he argued that he had not been arrested by the police in flagrante delicto, but only a month after the alleged criminal act had taken place. Moreover, there had in the meantime been no contact whatsoever between him and the alleged victim.
10. The applicant further contested the assertion that his circumstances and the conditions under which the criminal acts had been committed had not changed (the second circumstance referred to by the Regional Court). On the contrary, he submitted that it was clear from the fact that he had not tried to get in touch with the alleged victim again that he had no longer wanted to pursue the underlying conflict with him and had simply wanted to forget the matter.
11. Concerning the last circumstance, his previous contacts with the police for similar acts, the applicant argued that his most recent conviction for a violence-related crime (geweldsdelict) had dated back to 2004 and so his criminal record could hardly have justified the suspicion of any risk of reoffending.
12. The applicant concluded that as the circumstances accepted by the court on the risk of reoffending had been deficient, the risk of reoffending itself had also lacked grounds. Consequently, there were no valid grounds for his continued detention.
13. Secondly, the applicant argued that there was a realistic prospect that if he was convicted he would not receive an irrevocable custodial sentence that was longer than the time he had already spent in pre-trial detention.
14. Alternatively, the applicant requested that his detention on remand be suspended. In support of his request he adduced evidence of several aspects of his personal circumstances, including his financial situation, the need to protect his family and care for his two children. The applicant argued that those personal interests outweighed the interests of the prosecution.
15. On 3 August 2016 the Oost-Brabant Regional Court, following a hearing in camera, dismissed the request. The decision included the following statement:
“Having regard to the case file, including an order for the suspect’s extended detention on remand of 29 June 2016.
Considering, after examining the case today in camera, of which an official record (proces-verbaal) has been drawn up and whose contents should be regarded as being inserted here.
The court takes the view that the reasons which have led to the order for the applicant’s extended detention on remand still pertain.
The request to lift the detention on remand will therefore be dismissed.
The request to suspend the detention on remand will be dismissed. The court takes the view that in the current situation the interests of the prosecution outweigh the personal interests of the suspect.”
16. The applicant appealed to the ‘s‑Hertogenbosch Court of Appeal, essentially repeating the arguments made before the Regional Court.
17. On18 August 2016 the ‘s-Hertogenbosch Court of Appeal, following a hearing in camera, dismissed the appeal. The decision included the following statement:
“The court of appeal has noted the impugned decision.
The court of appeal has heard the advocate-general (advocaat-generaal) and counsel for the suspect.
The court of appeal has noted the suspect’s written statement waiving his right to be present while being heard in camera.
Unlike counsel, the court of appeal is of the opinion that serious reasons (ernstige bezwaren) and grounds, as accepted by the regional court, can indeed (wel degelijk) be derived from the case file and, as a consequence, the continuation of pre-trial detention is justified in every respect (alleszins).
The court of appeal agrees with the aforementioned decision and the grounds on which it is based.
The appeal must therefore be dismissed.
An oral request has been made in camera on behalf of the suspect to have his detention on remand suspended. After considering the interests of the prosecution and the suspect’s personal interests, the court of appeal sees no reasons to so decide. The request must therefore be dismissed.”
18. No further appeal lay against that decision.
19. The applicant’s detention on remand was suspended on 23 September 2016.
B. Relevant domestic law and practice
20. The relevant domestic law and practice are set out in Geisterfer v. the Netherlands, no. 15911/08, 9 December 2014.
COMPLAINT
21. The applicant complains under Article 5 §§ 1 and 3 of the Convention that his pre-trial detention lacked adequate justification, or in the alternative, that the respective decisions taken by the domestic courts lacked sufficient reasoning.
QUESTIONS TO THE PARTIES
1. Was the applicant’s pre-trial detention in the period from 16 June 2016 until 23 September 2016 justified under Article 5 § 1 (c) and Article 5 § 3 of the Convention?
2. In particular, was the reasoning contained in the decisions of the Oost-Brabant Regional Court and the ‘s Hertogenbosch Court of Appeal of 3 August 2016 and 18 August 2016 respectively, adequate and sufficient?
Full & Egal Universal Law Academy