KANZI v. THE NETHERLANDS
Inadmissible
Corneliu Bîrsan;David Thór Björgvinsson
The applicant, Mr Antonio Kialauda Kanzi, is a Dutch national who was born in 1980 and lives in Meerssen. He was represented before the Court by Mr J.W. Heemskerk, a lawyer practising in Maastricht. On 11 February 2004, the applicant was arrested and taken into police custody (inverzekeringstelling) on suspicion of trafficking drugs. On 13 February 2004, after having heard the applicant, the investigating judge (rechter-commissaris) ordered the applicant’s detention on remand (inbewaringstelling) for a period of ten days. The reasons stated by the investigating judge were: “It appears from the case-file that there are serious indications against the suspect (there is more than a mere suspicion). There are weighty reasons of public safety that warrant detention on remand, namely: detention on remand is necessary because there exists a justified fear for recidivism: there is namely a substantial possibility that the suspect will commit an offence which, according to the legal definition, attracts a prison sentence of six years or more; (there is fear for recidivism), which appears from the circumstance: - that there are reasons to believe that the suspect is involved in drug trafficking, which trade is so lucrative that the suspect will be unable or unwilling to do without this source of income.” On 19 February 2004, after having heard the applicant, the Maastricht Regional Court (arrondissementsrechtbank) ordered the applicant’s further detention on remand (gevangenhouding) for a period of thirty days, holding: “The Regional Court considers that, after examination, it has appeared that the suspicion, indications and ground, which have led to the order for detention on remand (bevel tot bewaring), currently still exist.” On 18 March 2004, after having heard the applicant, the Maastricht Regional Court prolonged the applicant’s detention on remand by a further thirty days. It held: “The Regional Court considers that, after examination, it has appeared that the suspicion, indications and grounds, which have led to the order for the suspect’s further detention on remand (bevel gevangenhouding), currently still exist.” The applicant’s appeal against the decision of 18 March 2004 – in which he relied inter alia on the Court’s considerations in the case of Guzzardi v. Italy, (judgment of 6 November 1980, Series A no. 39, p. 38, § 102) – was rejected on 8 April 2004 by the ‘s-Hertogenbosch Court of Appeal (gerechtshof). It upheld the impugned decision, holding: “considering that the Court of Appeal concurs with the above-cited ruling and the grounds on which it is based, on the understanding that the [applicant’s] pre-trial detention is also based on the following weighty reason of public safety, namely: it concerns suspicion of a fact which, according to the legal definition, attracts a prison sentence of twelve years or more and this fact has seriously rocked the legal order, consequently the appeal must be dismissed.” By judgment of 19 May 2004, following a hearing held on 6 May 2004, the Maastricht Regional Court convicted the applicant of two counts of drug offences and, in accordance with the provisions of inter alia Articles 10 and 11 of the Opium Act (Opiumwet), sentenced him to eight months’ imprisonment of which four were suspended pending a two years’ probationary period, and with deduction of the time spent in pre-trial detention. In addition, it imposed a fine of 800 euros. In the determination of its sentence, the Regional Court took into account that the applicant had never been convicted previously of a drug offence. Although the applicant could have filed an appeal against this judgment, he did not do so. Article 133 of the Code of Criminal Procedure (Wetboek van Strafvordering; “CCP”) defines pre-trial detention (voorlopige hechtenis) as 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. Article 67 of the CCP reads as follows: “1. An order for pre-trial detention can be issued in case of suspicion of: (a) an offence which, according to the law, carries a punishment of imprisonment of four years or more; (b) one of the offences defined in Articles 132, 137c § 2, 137d § 2, 137e § 2, 137g § 2, 285 § 1, 285b, 318, 321, 323a, 326, 326a, 326c, 395 and 417bis and 420quater of the Criminal Code; (c) one of the offences defined in: - Article 175 § 2, part b, of the 1994 Road Traffic Act (Wegenverkeerswet); - Article 30 § 2 of the Civil Authority Special Powers Act (Wet buitengewone bevoegdheden burgerlijk gezag); - Articles 52, 53 § 1 and 54 of the Military Service (Conscientious Objectors) Act (Wet gewetensbezwaren militaire dienst); - Article 31 of the Betting and Gaming Act (Wet op de kansspelen); - Article 11 § 2 of the Opium Act; - Article 55 § 2 of the Weapons and Ammunition Act (Wet wapens en munitie); - Article 46 of the 1995 Securities Transactions (Supervision) Act (Wet toezicht effectenverkeer). 2. The order can further be issued if no permanent address or place of residence of the suspect in the Netherlands can be established and he is suspected of an offence within the jurisdiction of the regional courts and which, according to the law, is punishable by imprisonment. 3. The previous paragraphs are only applied when it appears from the facts or circumstances that there are serious indications against the suspect.” Article 67a of the CCP reads: “1. An order based on Article 67 can only be issued: a. if it is apparent from particular behaviour displayed by the suspect, or from particular circumstances concerning him personally, that there is a serious danger of absconding; b. if it is apparent from particular circumstances that there is a serious reason of public safety requiring the immediate deprivation of liberty. 2. For the application of the preceding paragraph, only the following can be considered as a serious reason of public safety: - 1o. if it concerns suspicion of commission of an act which, according to the law, carries a punishment of imprisonment of twelve years or more and the legal order has been seriously rocked by that act; - 2o. if there is a serious risk the suspect will commit an offence which, according to the law, carries a prison sentence of six years or more or whereby the security of the State or the health or safety of persons may be endangered, or give rise to a general danger to goods; - 3o. if it concerns suspicion of one of the offences defined in Articles 310, 311, 321, 322, 323a, 326, 326a, 416, 417bis, 420bis or 420quater of the Criminal Code, whereas less than five years have passed since the day on which, on account of one of these offences, the suspect has been irrevocably sentenced to a punishment or measure entailing deprivation of liberty, a measure entailing restriction of liberty or community service, and there is further a serious risk that the suspect will again commit one of those offences; - 4o. if pre-trial detention is reasonably necessary for discovering the truth otherwise than through statements of the suspect. 3. An order for pre-trial detention shall not be issued if there are serious prospects that, in case of a conviction, no irrevocable custodial sentence or a measure entailing deprivation of liberty will be imposed on the suspect, or that he, by the enforcement of the order, would be deprived of his liberty for a longer period than the duration of the custodial sentence or measure.” Orders for pre-trial detention are immediately enforceable (Article 73 § 1 of the CCP). Pre-trial detention in the form of an order for detention on remand of a suspect may be issued by the investigating judge for a maximum duration of ten days (Articles 63 and 64 of the CCP). Under Article 65 of the CCP, a subsequent prolongation of pre-trial detention may be ordered by the Regional Court in the form of an order for further detention on remand for a maximum duration of thirty days. In case the trial proceedings have not started within the thirty days’ validity of an order for further detention on remand, the Regional Court can prolong it twice, each time for a maximum of thirty days (Article 66 § of the CCP). Article 69 § 1 of the CCP reads: “An order for pre-trial detention may be lifted by the Regional Court. It may do so of its own motion or upon the request of the suspect, or – in so far as it concerns an order for ... further detention on remand – upon a proposal from the investigating judge or a request by the public prosecutor.” Article 71 of the Code of Criminal Procedure, in so far as relevant, states: “1. Within a maximum of three days after its execution, the suspect may file an appeal with the Court of Appeal against a decision of the Regional Court ordering further detention on remand ... 2. Within the same time-limit, the suspect may file an appeal against an extension of an order for further detention on remand, but only if no appeal has been filed by him against the order for further detention on remand or against a previous prolongation order ...” Article 87 §§ 2 and 3 of the CCP, in so far as relevant, provides: “2. The suspect, who has requested for the first time to suspend (schorsing) or to lift (opheffing) an order for pre-trial detention, may file an appeal with the Court of Appeal against a negative decision on that request. The suspect, who has filed an appeal against a negative decision on a request for suspension, cannot subsequently file an appeal against a negative decision on a request to lift a pre-trial detention order. The suspect, who has filed an appeal against a negative decision on a request to lift a pre-trial detention order, cannot subsequently file an appeal against a negative decision on a request for suspension of pre-trial detention.”