CASE OF VAN VELDEN v. THE NETHERLANDS
Violation of Art. 5-4;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Alvina Gyulumyan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi
5. The applicant was born in 1948 and lives in Rotterdam. 6. On 14 November 2007 the applicant was caught in the act of trying to defraud a bank by withdrawing a sum of money from someone else’s bank account using a forged identity document. He was arrested and placed in police custody (inverzekeringstelling) for three days. 7. On 16 November 2007 an investigating judge (rechter-commissaris) placed the applicant in initial detention on remand (inbewaringstelling) for a term of fourteen days. 8. On 28 November 2007 the Regional Court (rechtbank) of The Hague, following a hearing in camera, dismissed the applicant’s request for suspension (schorsing) of his detention on remand (voorlopige hechtenis) and ordered the applicant’s further detention on remand (gevangenhouding) for a further ninety days. The applicant was at that time detained in the remand centre (huis van bewaring) of The Hague (north wing of Scheveningen prison). 9. On 5 December 2007 the applicant’s counsel lodged a single appeal against both the refusal to suspend the applicant’s detention on remand and the order for the applicant’s further detention on remand. 10. On 20 December 2007 the Court of Appeal (gerechtshof) of The Hague rejected the appeal under both heads as out of time. 11. On 14 January 2008 the unit manager of the north wing of Scheveningen Prison replied to a query from the applicant’s counsel in the following terms: “Dear Mr Van Zundert, We have received your letter concerning the Regional Court’s decision in good order. In response to your request, I wish to inform you that the Regional Court took the decision in question on 28-11-2007. On 29-11-07 the document was posted from the Regional Court, on 30-11-2007 we received the document in the late Friday afternoon post, and on 03-12-07 the document was delivered to the prison inmates administration in the afternoon, and on 04-12-07 the document was handed to Mr Van Velden. (see the copy of the official delivery record (akte van uitreiking)) ...” 12. It appears that the Regional Court’s decision refusing to order the suspension of the applicant’s detention on remand was served on the applicant in writing on Tuesday 4 December 2007 at 3.40 p.m. A copy of the official delivery record was submitted by the applicant, annexed to the application. 13. After the case was communicated, the respondent Government submitted a copy of an official delivery record showing that the Regional Court’s order for the applicant’s further detention on remand was served on the applicant on 29 November 2007 at 11.39 a.m. The document bears the applicant’s signature acknowledging receipt. 14. The Government have also submitted a copy of a written notice of appeal, which is in the following terms (emphasis in the original): “Regional Court of The Hague Legal remedy notice (Akte rechtsmiddel) ... On 5 December 2007 there appeared at the Registry of this Regional Court W.H. van Zundert Advocate practising in Rotterdam who declared that he had been specifically empowered by the person named hereafter to make the following statement, and stated, in the name of name van Velden first names Robertus Gemma Maria ... that he appealed against the decision and against the rejection of his request for suspension taken by the Regional Court in camera on 28 November 2007.” The document is signed by Mr van Zundert and by the registrar of the Regional Court. 15. It appears from the Government’s submissions that the applicant was sentenced to a term of imprisonment from which the time which he had spent in detention on remand was deducted in its entirety (Article 27 of the Criminal Code (Wetboek van Strafrecht), see paragraph 18 below). The applicant does not deny this. 16. The Code of Criminal procedure (Wetboek van Strafvordering), in relevant part, provides as follows: “1. An order for further detention on remand, or for the prolongation thereof, shall be in force for a period of up to ninety days, to be determined by the Regional Court, starting at the moment of its execution. ...” “1. The suspect can lodge an appeal with the Court of Appeal against the Regional Court’s decision to order or extend his further detention on remand no later than three days after the execution thereof. ...” 2. Within the same time-limit, the suspect can appeal against an order to prolong his further detention on remand, but only if he did not appeal against the order for detention on remand, nor against an earlier prolongation order. ...” “... 2. An order for detention on remand shall enter into force as of the moment at which the suspect is detained for the purpose of the execution of that order or as of the time at which the execution of a different order for detention on remand, given in the same case, ends, as the case may be. ...” “... 2. The applicant who has sought the termination or suspension of his detention on remand may lodge an appeal against a refusal of that request with the Court of Appeal once, within three days of the service of that decision. The suspect who has appealed against a decision refusing a request for suspension of detention on remand cannot afterwards appeal against a decision refusing the lifting of detention on remand. The suspect who has appealed against a decision refusing a request for suspension of detention on remand cannot afterwards appeal against a decision refusing the suspension of detention on remand. ...” “1. Except as otherwise provided by law, an appeal or appeal on points of law shall be introduced by a declaration to be made by the person making use of the legal remedy at the registry of the court by which or within which the decision has been given. ...” “1. Legal remedies, as referred to in Article 449, can also be made use of through the offices of: a. an advocate, if he or she declares that he has been specifically empowered for that purpose by the person making use of the legal remedy; ...” “1. If the person who wishes to make use of a legal remedy is detained in a remand centre, prison or custodial clinic, ... then he can also make use of the legal remedies ... by means of a written declaration submitted to the person in charge of the institution. 2. The person in charge of the institution shall have this declaration entered in a register kept for that purpose without delay, and then forward it to the registry of the court by which, or within which, the decision has been given, stating the date of entry in the register. The date on which the legal remedy is made use of shall be deemed to be the date of the entry in the register. ...” 17. The General Time Limits Act (Algemene Termijnenwet), in relevant part, provides as follows: “A time limit prescribed by law of at least three days shall, if necessary, be extended so that it shall comprise at least two days which are not a Saturday, a Sunday or a public holiday.” 18. Article 27 § 1 of the Criminal Code (Wetboek van Strafrecht) requires the courts when sentencing in all cases to deduct from the sentence the time which the convicted person has spent in police custody and detention on remand.