FOURTH SECTION
CASE OF ZOHLANDT v. THE NETHERLANDS
(Application no. 69491/16)
 
 
 
JUDGMENT
Art 5 § 3 • Reasonableness of pre-trial detention • Relevant but insufficient reasons provided by domestic courts in justifying continued pre-trial detention of applicant • Depth of courtroom discussions, reflected in official records of hearings, not compensating for lack of detail in written decisions
 
STRASBOURG
9 February 2021
 
FINAL
 
09/05/2021
 
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Zohlandt v. the Netherlands,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
 Yonko Grozev, President,
 Tim Eicke,
 Armen Harutyunyan,
 Gabriele Kucsko-Stadlmayer,
 Pere Pastor Vilanova,
 Jolien Schukking,
 Ana Maria Guerra Martins, judges,
and Andrea Tamietti, Section Registrar,
Having regard to:
the application (no. 69491/16) against the Kingdom of the Netherlands lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Dutch national, Mr Ferdinand Gerardus Zohlandt (“the applicant”), on 16 November 2016;
the decision to give notice to the Dutch Government (“the Government”) of the complaints concerning the applicant’s pre-trial detention;
the parties’ observations;
the submissions of the Netherlands Institute for Human Rights (College voor de Rechten van de Mens), which was invited to intervene by the President of the Section, in accordance with Article 36 § 2 of the Rules of Court;
the decision to uphold the Government’s objection to examination of the application by a Committee;
Having deliberated in private on 19 January 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The applicant complained under Article 5 §§ 1 and 3 of the Convention that the assumed risk of recidivism could not be based on facts from the case-file or circumstances of the case and formed thus no legitimate ground for justifying his extended detention on remand. More concretely, he alleged that the decision of the Court of Appeal of 18 August 2016 had lacked adequate justification or, in the alternative, that this decision had lacked sufficient reasons. THE FACTS
2. The applicant was born in 1961 and lives in Uden. The applicant was represented by Mr A.M. Smetsers, a lawyer practising in Nijmegen. 3. The Government were represented by their Agent, Ms B. Koopman, of the Dutch Ministry of Foreign Affairs. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. On 16 May 2016 Oost-Brabant police were notified that one Mr U. had been beaten up by two men who had driven away in a car. When the police arrived on the scene, they found U. bruised. There were bloodstains in different places in his home. The next day U. lodged a criminal complaint against the applicant, whom he accused of attempted murder/homicide, aggravated assault and destruction of property. 6. On 13 June 2016 the applicant was arrested and placed in police custody (inverzekeringsstelling) on suspicion of attempted premeditated aggravated assault (poging tot zware mishandeling) and illegal possession of a firearm, ammunition and a knuckleduster, which had been found in his home (see paragraph 23 below). 7. 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:
“Considering that serious suspicions [ernstige bezwaren] have arisen against the suspect,
Considering that (a) serious public-safety reason(s) exist(s) requiring the immediate deprivation of liberty of the suspect,
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 individuals can be endangered [waardoor de gezondheid of veiligheid van personen in gevaar kan worden gebracht];
which follows from the circumstance(s) 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 [criminal] act(s) whilst 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 already previously come into contact with the police and criminal-justice authorities for similar acts [is al eerder in aanraking geweest met politie en justitie voor soorgelijke feiten].”
8. On 29 June 2016 a hearing in chambers (raadkamer) took place before the Oost-Brabant Regional Court, pertaining to the applicant’s placement in extended detention on remand (gevangenhouding) following an application by the prosecution service on the basis of the existence of serious suspicions against the applicant and a risk of reoffending in view of the circumstances of offence committed and the ongoing conflict. During this hearing, the applicant requested through counsel that the demanded extended detention on remand be refused or, in the alternative, that his detention on remand be suspended (schorsing). He noted that the grounds relating to the (ongoing) investigation (onderzoeksgrond, Article 67a § 1 under 5o of the Code of Criminal Procedure (Wetboek van Strafvordering, hereinafter, “the CCP”); see paragraph 22 below) had not been advanced by the prosecution service and that the investigation had finished. Arguing that he had acted in self-defence, he requested that the requested extension of his pre-trial detention be refused. In support of his alternative request to suspend his pre-trial detention, he pointed out that he was the breadwinner of his family, that his wife was terrified and that he wished to protect his family. The prosecution service submitted that it was expected that the investigation would be finished within a couple of weeks and that trial proceedings were envisaged. It further opposed suspension of the pre-trial detention. 9. On the same day the Regional Court in chambers ordered that the applicant be taken into extended detention on remand for ninety days. 10. In a separate decision taken on the same day, the Regional Court dismissed the alternative request to suspend the applicant’s pre-trial detention. Having noted the content of the case file and the formal record of the hearing held in chambers, it found that the interests of criminal justice (strafvorderlijk belang) outweighed the applicant’s personal interests. 11. Although possible, the applicant did not appeal against those two decisions. 12. On 29 July 2016 the applicant, through counsel, lodged an application for release from pre-trial detention or, in the alternative, to have his pre-trial detention suspended. He submitted inter alia that a first trial hearing had been scheduled for 23 September 2016, and that the pre-trial-detention order given on 29 June 2016 (see paragraph 9 above) had only been based on the supposed danger of recidivism which was unlikely as the violent crimes (geweldsdelicten) in which he had been involved and convicted of all dated back to the period between 2000 and 2004, whereas the present suspicions concerned acts which could be regarded as committed in legitimate self-defence. Furthermore, in the context of Article 67a § 3 of the CCP (see paragraph 22 below), it was possible that the pre-trial detention would last longer than the possible sentence as the acts held against the applicant could be regarded as having been committed in self-defence. The applicant further argued that his release was also warranted by his personal circumstances, in particular the financial consequences of his detention for his family as well as their security as he had to protect them against those who falsely believed that in 2003 he had reported an illegal cannabis nursery to the police. 13. The applications were examined by the Regional Court on 3 August 2016 in a hearing held in chambers. The applicant’s lawyer added that nothing criminal had happened in the month between the altercation and the applicant’s arrest. The prosecutor opposed bail, submitting that the grounds for the applicant’s pre-trial detention had been determined by the investigating judge and the Regional Court and that the applicant could have appealed to the Court of Appeal (gerechtshof). 14. Having heard the parties’ arguments and having noted the contents of the case file, the Regional Court in chambers dismissed the applicant’s applications, holding as follows:
“In the opinion of the Regional Court, the reasons which have led to the issuance of an order for the applicant’s placement in extended detention on remand remain pertinent. The application to lift [opheffing] the pre-trial-detention order (bevel tot voorlopige hechtenis) is therefore dismissed. The application to suspend [schorsing] the pre-trial-detention order must be dismissed. The Regional Court finds that in the given situation the interests of criminal justice prevail over [the applicant’s] personal interest.”
15. The applicant, through counsel, appealed to the ‘s-Hertogenbosch Court of Appeal (gerechtshof). In addition to his earlier arguments, hecontested the assessment of the risk of reoffending made in the 
pre-trial-detention order of 29 June 2016 (see paragraph 9 above). He claimed that the police had played no role in stopping the altercation. They had not caught him in the act but had arrested him one month later in his home. He explained that he had had a conflict with U. on the basis of which he had claimed financial compensation from U., who had invited the applicant to his home to talk about the conflict. There had been an altercation in U.’s home in the course of which U. had stabbed the applicant in the face. In the month following this incident, the applicant had not sought to contact U., which would justify the thesis that the conflict as such had not been resolved but that the applicant had decided to drop the matter, to cut his losses and to confront U. no longer. Furthermore, although the applicant had committed other offences (menace, drink-driving), he had not committed any violent crimes during the previous twelve years. 16. On 18 August 2016 the Court of Appeal dismissed the appeal and upheld the impugned decision. In its relevant part, its decision reads as follows:
“The Court of Appeal has noted the impugned decision. The Court of Appeal has heard the advocate-general [advocaat-generaal] and the lawyer of the suspect. The Court of Appeal has noted a written statement of the suspect in which he waives the possibility of being heard [in person] in chambers. Unlike the lawyer, the Court of Appeal is of the opinion that serious objections and grounds, as found by the Regional Court, can indeed be derived from the case file, which fully justify the continuation of the pre-trial detention. The court agrees with the [impugned] decision and the grounds on which it is based. The appeal must therefore be dismissed. On behalf of the suspect, an oral application has been made in chambers to have his detention on remand suspended. Having weighed the interests of criminal justice against the suspect’s personal interests, the Court of Appeal finds no reasons warranting suspension, so that this application must be dismissed.”
17. No further appeal lay against that decision. 18. On 23 September 2016 the trial proceedings against the applicant commenced before the Oost-Brabant Regional Court. In the course of the hearing held on that day, the court considered an application by U., who had joined the criminal proceedings as a civil injured party (benadeelde partij) and who had filed a claim for compensation, to adjourn the proceedings as he had been admitted to hospital but wished to use his right to be heard. The public prosecution service had no objection, but the applicant opposed the application. After having deliberated and having consulted the applicant, the Regional Court decided – having balanced the applicant’s weighty interest in proceeding with his trial against the interest of U. in attending and addressing the court – to adjourn the trial proceedings and to suspend the applicant’s pre-trial detention under the condition that the applicant respect a restraining order (contactverbod) in respect of U. It held:
“The Regional Court will suspend the pre-trial detention of the suspect. The Regional Court finds that the interest of the suspect in suspending the pre-trial detention must prevail over the interest of criminal justice and the interest of society in the continuation of the pre-trial detention of the suspect.”
19. In a judgment of 3 March 2017, the Regional Court convicted the applicant of attempted premeditated aggravated assault and several offences under the Weapons and Ammunition Act (Wet wapens en munitie) and sentenced him to ten months’ imprisonment less the time spent in pre-trial detention. It further ordered the enforcement of a fourteen-day prison sentence imposed on 2 March 2016 of which thirteen days had been suspended. No information has been submitted as to whether the applicant has appealed against this judgment. RELEVANT LEGAL FRAMEWORK AND PRACTICE
20. Article 24 § 1 of the CCP provides that a decision (beschikking) given in chambers (raadkamer) must be reasoned. 21. Article 133 of the 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 extended detention on remand (gevangenhouding). The statutory rules governing pre-trial detention are set out in Articles 63 to 88 of the CCP. 22. The provisions of the CCP as relevant for the present case are the following:
Article 67
“1. An order for detention on remand can be issued in cases of suspicion of:
a.  an offence which, according to its legal definition, carries a sentence of imprisonment of four years or more; ... 3. The previous paragraphs are only applied when it appears from the facts or circumstances that there are serious suspicions against the suspect. ...”
Article 67a
“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 public-safety reason requiring the immediate deprivation of liberty. 2. For the application of the preceding paragraph, only the following can be considered as a serious public-safety reason:
1o.  if it concerns suspicion of commission of an act which, according to its legal definition, carries a sentence of imprisonment of twelve years or more and that act has caused serious upset to the legal order;
2o.  if there is a serious risk the suspect will commit an offence which, under 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; ...
5o.  if detention on remand is necessary in order to discover the truth otherwise than through statements of the suspect. 3. An order for detention on remand shall not be issued if there are serious prospects that, in the event of a conviction, no irrevocable custodial sentence or a measure entailing deprivation of liberty will be imposed on the suspect, or that she or he, by the enforcement of the order, would be deprived of her or his liberty for a longer period than the duration of the custodial sentence or measure.”
Article 78
“1. The pre-trial-detention order or the order for extension of its term of validity shall be dated and signed. 2. It shall specify as precisely as possible the criminal offence in regard of which the suspicion has arisen and the facts or circumstances on which the serious suspicions against the suspect are based, as well as the conduct, facts or circumstances which show that the conditions set down in article 67a have been met. ...”
Article 80
1. The court may – ex proprio motu or following an application by the Public Prosecution Service or the suspect – order that the pre-trial detention be suspended as soon as the suspect has stated, whether or not subject to the provision of security in the form to be designated by the court, that she or he is prepared to comply with the conditions to be attached to the suspension. Such an application or request shall be reasoned. 2. The following conditions for suspension apply in all cases:
should termination of the suspension be ordered, the suspect may not seek to evade execution of the pre-trial-detention order;
should the suspect be given a custodial sentence other than detention in lieu of payment of a fine for the offence for which pre-trial detention was ordered, she he may not seek to evade its execution; ...”
Article 87
“ ... 2. A suspect who has applied to the Regional Court to suspend or lift his detention on remand can appeal against a refusal of that application to the Court of Appeal once only, no later than three days after notification. The suspect who has appealed against the refusal of a suspension request cannot afterwards appeal against the refusal of a request to lift his detention on remand. The suspect who has appealed against the refusal to lift his detention on remand cannot afterwards appeal against the refusal of a suspension request. 3. The appeal shall be decided as speedily as possible.”
23. Premeditated aggravated assault is a crime punishable by a prison sentence of up to twelve years (Article 303 of the Criminal Code (Wetboek van Strafrecht); in case of an attempt to commit this crime, the maximum sentence is reduced by one-third (Article 45 of that Code), i.e. to eight years. According to the Arms and Ammunition Act, the unlicensed possession of a pistol or a revolver (a category III weapon, section 2 of the Act) or its ammunition is a crime punishable by a term of imprisonment of up to four years (sections 26 and 55 of the Act). THE LAW
ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
24. Relying on Article 5 §§ 1 and 3 of the Convention, the applicant complained that his pre-trial detention had lacked adequate justification, or in the alternative, that the Court of Appeals’ decision had lacked sufficient reasons. 25. Article 5 §§ 1 and 3 of the Convention reads in so far as relevant as follows:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
... (c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
... 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. ...”
26. The Court takes the view that the complaint should be examined under Article 5 § 3 alone (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 61, 5 July 2016). AdmissibilitySubmissions by the parties

(a)   The Government
27. The Government argued, relying on Vučković and Others v. Serbia ((preliminary objection) [GC], nos. 17153/11 and 29 others, 25 March 2014) that the application was inadmissible for non-exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention as, for reasons unknown, the applicant had failed to appeal against the pre-trial-detention order given on 29 June 2016 by the Oost-Brabant Regional Court (see paragraph 11 above). (b)   The applicant
28. The applicant submitted that he had exhausted domestic remedies as his application was not directed against the pre-trial order of 29 June 2016 (see paragraph 9 above) but against the ruling of the Court of Appeal of 18 August 2016 (see paragraph 16 above), against which no appeal lay (see paragraph 17 above).

Outcome for Article 5: violation