ECHR Ruling of February 09, 2021 in the case "Hasselbaink, Maassen, Zolandt v. Netherlands (Hasselbaink, Maassen, Zohlandt v. Netherlands)" (aplications N 73329/16, 10982/15, 69491/16).
In 2015 and 2016, the applicants were assisted in the preparation of aplications. Subsequently, the aplications were combined and communicated to the Netherlands.
aplications about the application of relevant but insufficient grounds for extending the period of detention were successfully considered in the case. The case involved a violation of the requirements of article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
The applicants were detained on suspicion of committing various crimes. They were placed in custody as part of the chosen preventive measure, which was subsequently repeatedly extended by the decisions of the relevant district court. The applicants unsuccessfully petitioned for the cancellation or suspension of the preventive measure in question and/or appealed against the relevant decisions.
Regarding compliance with paragraph 3 of article 5 of the Convention. In the case "Maassen v. Netherlands" (Maassen v. Netherlands), the applicant's detention under the chosen preventive measure for a little more than nine months had several grounds:
(i) suspicion that the applicant had committed a crime, the punishment for which provided for 12 years of imprisonment, which also entailed a serious violation of the legal order;
(ii) the risk of reoffending; and
(iii) the risk of influencing witnesses in the case and other suspects in the case. The third ground was overturned almost at the very beginning, when the District Court extended the applicant's detention for the first time. As for the first ground, the concept of "legal order" contained in Dutch legislation was synonymous with "public order" (See: The Ruling of the European Court in the case "Geisterfer v. Netherlands" (Geisterfer v. Netherlands) of December 9, 2014, complaint No. 15911/08.). A "serious violation" of this procedure, arising from the gravity of the crime, may justify the detention of a person (See: The decision of the European Court in the case "Kanzi v. Netherlands" (Kanzi v. Netherlands) of July 5, 2007, complaint No. 28831/04.), and the preservation of a threat to public order is usually considered as a legitimate reason for detention. However, this ground can be considered relevant and sufficient only if it is based on facts capable of demonstrating that the release of the accused from custody will indeed violate public order. In addition, the continued detention of a person will remain lawful only if there is a real threat to public order. In more general terms, the need to continue the detention of a person cannot be assessed from an exclusively abstract point of view, taking into account only the severity of the act imputed to the person. Moreover, the assessment of the relevance to the case and the sufficient nature of the grounds for the detention of a person within the framework of the chosen preventive measure cannot be carried out regardless of the consideration of the total duration of the person's detention. The longer a person is held in custody as part of the chosen preventive measure, the more justifications are needed that will convincingly demonstrate the existence of risk or risks in the event of a person's release from custody. In its first decision to extend the applicant's detention, the District Court referred not only to the gravity of the charges against the applicant, but also to the reaction of the public. The District Court noted the victim's small age and the general media attention to the case. Taking into account the fact that the period of the applicant's detention under the chosen preventive measure has just begun to be calculated, it cannot be said that the court's decision to extend the specified period would not have had relevant and sufficient grounds. However, the same could not be said about the subsequent rulings of the relevant courts of the Netherlands.
In the case of "Zohlandt v. Netherlands" (Zohlandt v. Netherlands), the applicant's detention was initially conditioned by the risk of re-commission of the crime. Rejecting the initial request for the applicant's release from custody, the District Court limited itself to referring to the reasons that led to the issuance of the initial decision on the application of a preventive measure in the form of detention to the applicant, and when considering the complaint, the Court of Appeal determined that the "serious objections and grounds" established by the District Court really followed from the case materials, which fully justified the extension of the applicant's detention.
In Hasselbaink v. Netherlands, the Dutch authorities argued that the extension of the applicant's detention under the chosen preventive measure was found justified by the District Court for the following reasons:
(i) the risk of re-commission of the crime;
(ii) the fact that the crime committed constituted a threat to the legal order; and
(iii) the risk that, while at large, the applicant could take actions that would interfere with the administration of justice.
However, the European Court could not find in the rulings of the courts of the Netherlands confirmation of the position of the Dutch authorities in the present case. The European Court had to assess whether the judicial acts contained references to special facts and individual circumstances that would justify the extension of the period of detention of suspects, and not the later conclusions of the Dutch authorities in this regard. The text of the relevant decisions simply referred to the grounds and reasons (namely, the persistence of suspicions, serious doubts and grounds that led to the issuance of the initial decision to place the applicant in custody) set out in the initial decision made before the investigating judge received additional evidence in the case.
The relevant rulings of the courts of the Netherlands did not meet the requirements of the established case law of the European Court. In all three cases, the decisions did not consider the applicants' arguments, including those in which the risk of reoffending was disputed (the case of Zohlandt v. Netherlands) or the question was raised as to whether, in the light of new evidence in the case, the suspicion that the applicant had committed a crime could remain justified (the case of Hasselbaink v. Netherlands).
In this context, the European Court reiterated that it was called upon to consider whether there had been a violation of paragraph 3 of Article 5 of the Convention (See: Judgment of the Grand Chamber of the European Court in the case "Buzadji v. Republic of Moldova" (Buzadji v. Republic of Moldova) of July 5, 2016, complaint No. 23755/07// Bulletin of the European Court of Human Rights. 2018. N 12.), solely on the basis of the reasons set out by the Dutch authorities in their decisions made following the consideration of petitions for the release of the applicants from custody, as well as on the basis of documented facts stated by the applicants in their complaints. Therefore, the European Court could not agree with the statement of the Dutch authorities that the thoroughness of the case in court, reflected in the minutes of the court session, compensated for the insufficiently detailed rulings. Indeed, during the judicial debate, the arguments of the parties were voiced, but during the debate it was not indicated what grounds justified the detention of the applicants in pre-trial detention from the point of view of representatives of the judicial authorities authorized to appoint or extend the period of detention of a person. Only a reasoned decision of these authorities could effectively demonstrate to the parties that they had been listened to, and could also make possible an appeal and public control over the process of administration of justice. Moreover, the provisions of the legislation of the Netherlands implied that the decisions on the placement of a person in custody as part of the chosen preventive measure must be properly justified.
Without considering the special facts and individual circumstances of the applicants' cases, the Dutch courts extended the applicants' detention on grounds that, although "relevant", could not be considered "sufficient" to justify the extension of the applicants' detention. This conclusion exempted the European Court from clarifying the question of whether the competent authorities of the Netherlands had shown "special diligence" in conducting the proceedings in the applicants' cases.
The requirements of paragraph 3 of Article 5 of the Convention were violated in the case (adopted unanimously).
The European Court also ruled unanimously that there had been a violation of Article 5, paragraph 4, of the Convention in Hasselbaink v. Netherlands, since the 22 days that had elapsed before the District Court considered the applicant's application for release from custody did not meet the requirement of urgent consideration. The European Court took into account the fact that the President of the relevant District Court acknowledged in her response to the applicant's complaint that the consideration of his application was not scheduled for a hearing within the usual time frame, and apologized.
In application of article 41 of the Convention, the European Court awarded 1,300 euros to the applicant in Hasselbaink v. Netherlands and 1,600 euros to the applicant in Maassen v. Netherlands as compensation for non-pecuniary damage; claims for compensation for material damage were rejected in both of these cases. In the case of "Zohlandt v. Netherlands" (Zohlandt v. Netherlands), no claims for just compensation were made and, accordingly, no amounts were awarded under this paragraph.