Information Note on the Court’s case-law 248
Maassen v. the Netherlands – 10982/15
Judgment 9.2.2021 [Section IV]
Reasonableness of pre-trial detention
Relevant but insufficient reasons in domestic court decisions for applicants’ continued pre-trial detention: violation
[This summary also covers the judgments Hasselbaink v. Netherlands, no. 73329/16 and Zohlandt v. Netherlands, no. 69491/16, 9 February 2021]
Facts – The applicants had been arrested on suspicion of having committed various offences. They were placed in initial detention on remand, which was subsequently extended on several occasions by Regional Court orders. The applicants unsuccessfully made applications for their pre-trial detention to be lifted or suspended and/or appealed against the relevant decisions.
Law – Article 5 § 3 :
In Maassen, the applicant’s initial pre-trial detention, which had lasted a little over nine months, had been based on several grounds: 1) suspicion of a crime attracting a prison sentence of twelve years or more, and which had caused serious upset to the legal order; 2) the risk of reoffending; and 3) the risk of influencing the witness and the co-suspects. The third ground had been dropped early on, when the Regional Court had first extended the applicant’s pre-trial detention. As to the first ground, “legal order”, contained in the domestic legislation, was synonymous with “public order” (Geisterfer v. the Netherlands, 15911/08, 9 December 2014). A “serious upset” to that order, arising from the gravity of the crime, might justify detention (Kanzi v. the Netherlands (dec), 28831/04, 5 July 2007) and the preservation of a threat to public order was commonly seen as a legitimate ground for detention. However, that ground could only be regarded as relevant and sufficient provided that it was based on facts capable of showing that the accused’s release would actually upset the public order. In addition, detention would continue to be legitimate only if public order remained actually threatened. More generally, the need to continue the deprivation of liberty could not be assessed from a purely abstract point of view, taking into consideration only the seriousness of the offence. Moreover, the assessment of relevant and sufficient reasons for pre-trial detention could not be separated from the actual duration thereof. The longer the pre-trial detention lasted, the more substantiation was required for convincingly demonstrating that the alleged risk or risks in case of the suspect’s release. In the Regional Court’s first decision to extend the applicant’s detention, it had not only relied on the gravity of the charge against the applicant, but also on the public reaction. It had referred to the young age of the victim and the great media attention. Taking into account the fact that the applicant’s pre-trial detention had still been in its early stages, it could not be said that that decision had lacked relevant and sufficient reasons. The same could not be said for the subsequent domestic court decisions, however.
In Zohlandt, the applicant’s pre-trial detention had initially been based on the risk of reoffending. When rejecting the applicant’s original application for release, the Regional Court had limited itself to referring to the reasons which had led to the issuance of the original order for the applicant’s placement in extended detention on remand, and, on appeal, the Court of Appeal had considered that the “serious objections and grounds” found by the Regional Court could indeed be derived from the case-file, which had fully justified the continuation of pre-trial detention.
In Hasselbaink, the Government had submitted that the continuation of the applicant’s pre-trial detention had been found justified by the Regional Court because of: 1) the risk of his reoffending; 2) the fact that the offence committed had constituted an affront to the legal order; and 3) the risk that the applicant, if released, would take action to prejudice the administration of justice. However, the Court could not find support in the actual decisions of the domestic courts for the arguments put forward by the Government. The Court was called on to assess whether the judicial orders contained references to specific facts and individual circumstances justifying continued detention, and not the Government’s posterior submissions in that regard. The wording of relevant decisions had merely referred back to the grounds and reasons (namely, the continued existence of suspicions, serious concerns and grounds which had led to the order for the applicant’s initial detention on remand) which had been set out in an earlier decision, given before additional evidence had been taken by the investigating judge.
The relevant decisions of the domestic courts had fallen short of the requirements of the Court’s established case-law. In all three cases, the decisions had not addressed the applicants’ arguments, including those contesting the risk of reoffending (Zohlandt), or questioning whether, in light of new evidence, the suspicion that the applicant had committed an offence had remained reasonable (Hasselbaink).
In that context, the Court reiterated that it was essentially on the basis of the reasons given by the national judicial authorities in their decisions on applications for release, and of the well-documented facts stated by the applicants in their appeals, that the Court was called upon to decide whether there had been a violation of Article 5 § 3 (Buzadji v. the Republic of Moldova [GC] 23755/07, 5 July 2016). The Court could not therefore accept the Government’s contention that the depth of the courtroom discussions, reflected in the official records of the hearings concerned, had compensated for the lack of detail in the written decisions. Indeed, the discussion at the hearings reflected the arguments put forward by the parties, but did not indicate what had been the grounds justifying the pre-trial detention in the eyes of the judicial authority competent to order or extend a deprivation of liberty. Only a reasoned decision by those authorities could effectively demonstrate to the parties that they had been heard, and make appeals and public scrutiny of the administration of justice possible. Moreover, national law provisions stipulated that decisions on pre-trial detention should be duly reasoned.
By failing to address the specific facts and individual circumstances, the judicial authorities had extended the applicants’ pre-trial detention on grounds which, although “relevant”, could not be regarded as “sufficient” to justify their continued detention. That conclusion dispensed the Court from ascertaining whether the competent national authorities had displayed “special diligence” in the conduct of the proceedings.
Conclusion: violation (unanimously).
The Court also held, unanimously, that there had been a violation of Article 5 § 4 in Hasselbaink, as the period of twenty-two days which had elapsed before the Regional Court had examined the applicant’s application to be released from pre-trial detention had fallen short of the requirement of a speedy judicial decision. The Court had taken into account the fact that the President of the relevant Regional Court had admitted, in her reply to the applicant’s complaint, that the examination had not been scheduled with habitual diligence and had offered her apologies.
Article 41: EUR 1,300 in Hasselbaink and EUR 1,600 in Maassen in respect of non-pecuniary damage; claims in respect of pecuniary damage dismissed in both cases. No claims for just satisfaction made or awarded in Zohlandt.
(See also Geisterfer v. the Netherlands, 15911/08, 9 December 2014)