CASE OF GEISTERFER v. THE NETHERLANDS
Violation of Article 5 - Right to liberty and security (Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention)
Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra
5. The applicant was born in 1962 and lives in Amsterdam. 6. The applicant was suspected of membership of a crime ring organised around one H., a person widely known to have amassed criminal convictions for serious crimes; of complicity in extortion; and of possession of an illegal firearm. 7. On 30 January 2006 the applicant was arrested. On 2 February 2006 he was taken into initial detention on remand (bewaring) for fourteen days by order of an investigating judge of the Haarlem Regional Court (rechtbank). The order included the following grounds: “(post alia) Considering in addition that it appears that there is a serious reason of public safety requiring the immediate deprivation of liberty; Considering in this connection: that there is a suspicion of a [criminal] act which, according to the law, carries a maximum sentence of imprisonment of twelve years or more and that act has caused serious upset to the legal order (een feit waarop naar de wettelijke omschrijving een gevangenisstraf van twaalf jaren of meer is gesteld en de rechtsorde ernstig door dat feit is geschokt); that there is a serious likelihood (dat er ernstig rekening mee moet worden gehouden) that the suspect will commit a crime (misdrijf) by which the health or safety of persons will be endangered, since the framework of the suspicion encompasses the display of aggressive and unrestrained behaviour by the suspect; that detention on remand is necessary in reason for discovering the truth otherwise than through statements of the suspect; ...” 8. On 14 February 2006 the applicant was taken into extended detention on remand (gevangenhouding) for thirty days by order of the Haarlem Regional Court following a hearing in camera. This decision stated the following grounds: “considering that the Regional Court finds, after examining the case, that the suspicion, indications and grounds which have led to the order for the suspect’s initial detention on remand still obtain; considering that the existence of these grounds is borne out by the conduct, facts and circumstances stated in the order for the suspect’s initial detention on remand, given on 2 February 2006, which the Regional Court adopts as its own; ...” 9. The Regional Court renewed its order for a further term of thirty days on 11 April 2006. The applicant appealed against this decision; his appeal was dismissed by the Amsterdam Court of Appeal (gerechtshof) on 17 May 2006. 10. The order for the applicant’s extended detention on remand was renewed periodically by the Regional Court until its suspension. 11. On 7 May 2007 the Haarlem Regional Court ordered the suspension (schorsing) of the applicant’s detention on remand with effect from noon the following day. The reason stated was the following: “The Regional Court is of the view that the serious reasons and grounds stated in the order for extended detention on remand (bevel tot gevangenhouding) still exist and that Article 67a § 3 of the Code of Criminal Procedure (Wetboek van Strafvordering) is not yet applicable. Even so, the Regional Court considers it appropriate, in view of the circumstance that it has today ordered the suspension of the trial until a date next September, to decide as follows as to the execution of the detention on remand. The suspension of the trial is directly linked with the state of health of a co-suspect and the Regional Court’s decision in principle (uitgangspunt) to pursue the proceedings against all suspects simultaneously. That being so, and also in light of the length of the detention on remand until today, the Regional Court is led to suspend the detention on remand until the day on which the trial of the suspect will be pursued.” The co-suspect referred to was H., who needed time to recover from heart surgery which he had undergone in detention before his trial could resume. 12. The suspension of the applicant’s detention on remand was made subject to the following conditions: “1. that the suspect not seek to evade the execution of the detention on remand order if its suspension should be terminated; 2. that the suspect, should he be sentenced to a custodial sentence other than [in lieu of a fine or a community service order] for the criminal act for which the detention on remand was ordered, not seek to evade its execution; 3. that the suspect not perpetrate a new criminal act during the time in which his pre-trial detention shall be suspended; 4. that the suspect attend the remainder of his trial; 5. that the suspect immediately obey any summons from the police, the prosecution or the court (politie en justitie); 6. that the suspect not have any direct or indirect contact with (any one of) his co-suspects or the witnesses ... 7. that the suspect hand in his passport and/or his identity card ... 8. that the suspect shall report in person twice a week (zich tweemaal per week dient te melden) at times and places indicated to him by the public prosecution service (openbaar ministerie).” 13. On 20 August 2007 the applicant submitted a request for his detention on remand to be lifted altogether (opheffing van het bevel tot voorlopige hechtenis). 14. On 22 August 2007 the Haarlem Regional Court gave a decision in the following terms: “This court’s decision of 7 May 2007 suspended the suspect’s pre-trial detention in connection with the special circumstances mentioned in that decision, which did not concern the suspect himself, which entailed the interruption of the trial for a considerable time. The Regional Court has allowed the interest of the suspect in awaiting the resumption of his trial in freedom to prevail over the prosecution interest in keeping the suspect in detention on remand on the grounds stated in the order for extended detention on remand only because of that special situation and only for as long as that situation might continue. As the suspect’s trial will resume before long and the said special situation will from then on no longer exist, there will, from then on, be no reason to allow the suspension of the suspect’s detention on remand to continue. The Regional Court takes the view that the serious reasons and grounds, with the exception of the ground related to the investigations, still exist and considers that Article 67a § 3 [of the Code of Criminal Procedure] is not yet applicable. The mere fact stated by the suspect’s counsel that since the suspect’s liberation there has been no large-scale public protest and that the suspect has complied unreservedly (onverkort) with the suspension conditions do not mean that there is no longer any ‘serious upset to the legal order’ within the meaning of Article 67a § 2 under 1 or the danger of an offence within the meaning of Article 67a § 2 under 2. Considering also the nature of the first-mentioned ground – briefly, an offence carrying a twelve-year sentence that has caused serious upset to the legal order –, the Regional Court does not consider the arguments submitted sufficient reason to suspend the detention on remand, as is requested in the alternative as a less intrusive way of using this means of coercion (minder bezwarende wijze van toepassing van dit dwangmiddel). ...” No appeal was possible against this decision. 15. The trial resumed on 25 September 2007. The applicant, through his counsel, made a request at the hearing for the detention on remand order to be lifted, or in the alternative, for the suspension to be continued. He argued that his release had not caused any public outcry. 16. According to the official record (proces-verbaal) of the hearing, the Regional Court gave a refusal, stated by its president in the following terms: “The Regional Court refers to its decision of 7 May last. At the time, the medical situation of the co-suspect H., the Regional Court’s desire to consider the cases together, and the fairly long duration of the detention on remand led to the decision to suspend the detention on remand until such time as the trial would resume. As soon as these reasons cease to apply the Regional Court must consider the situation afresh. This does not mean that the Regional Court will look back to see how well things have gone and what ripples your release has caused (hoeveel rumoer er over uw vrijlating is ontstaan), but that it will consider whether the serious reasons and grounds still exist. It takes the view that such is the case. As regards the alternative request, the Regional Court takes the view that the prosecution interest would not be served in sufficient measure if you could, within the framework of a suspension of your detention on remand, await the outcome of your criminal case in freedom. Your personal interest in awaiting the determination of your case in freedom does not outweigh the prosecution interest. Your detention on remand should therefore continue, given also that there is no question at the present time of applying Article 67a § 3 of the Code of Criminal Procedure. The president stresses that the Regional Court will continue to consider ex officio whether it is necessary for the detention on remand to continue, and whether there may be grounds to order a variant as regards the modalities of its execution. The Regional Court dismisses both the principal and the alternative requests.” 17. The applicant was taken back into detention on remand on 27 September 2007. 18. On 15 November 2007 the applicant’s counsel submitted a further request for the lifting or, in the alternative, the suspension of the detention on remand order. This too was refused. 19. On 4 December 2007 the Regional Court lifted the applicant’s detention on remand. The decision was in the following terms: “That the Regional Court, sitting in camera, has come to take the view that serious reasons and grounds referred to in the order for extended detention on remand still exist, but that at this point Article 67a § 3 of the Code of Criminal Procedure leads the Regional Court to take the appertaining decision.” 20. On 21 December 2007 the Regional Court convicted the applicant and sentenced him to eighteen months’ imprisonment. 21. The applicant appealed. On 3 July 2009 the Amsterdam Court of Appeal quashed the first-instance judgment on technical grounds. Convicting the applicant afresh, it sentenced him to eighteen months’ imprisonment, six months of which was suspended. 22. The applicant lodged an appeal on points of law (cassatie) with the Supreme Court, which dismissed the appeal on 12 October 2010.