The continuation of pre-trial detention must be adequately justified by the courts. ECHR criteria for adequate reasoning. Violation of the right to personal liberty

JUDGMENT

Zohlandt v. The Netherlands 09.02.2021 (app. no. 69491/16)

see here

SUMMARY

The applicant was remanded in custody for approximately 3.5 months after his arrest and criminal prosecution for unlawful assault, grievous bodily harm and possession of a firearm. His appeals for release were rejected, but the domestic courts did not give sufficient reasons for imposing his detention on remand.

The Court reiterated its case-law on pre-trial detention that there should be procedural guarantees as to its duration, and gave reasons. For the imposition of temporary detention, reasonable suspicion is a necessary condition for its validity, but after a certain period of time – that is, from the first court decision ordering temporary detention – it is no longer sufficient. In order to continue detention on remand, the Court must determine whether there are other grounds given by the judicial authorities justifying the deprivation of liberty and whether those grounds are “relevant” and “sufficient”. In any case, according to the ECtHR, there must be sufficient justification for any detention period, no matter how short.

The ECtHR found that the court decisions ordering the applicant’s detention had not sufficiently substantiated the reasons for his deprivation of liberty. The vague statement that “serious reasons may arise from the case file for the imposition of pre-trial detention” does not cover the guarantees required by the ECHR, nor the reference to the minutes of the trial in which the court meeting was recorded.

The ECtHR ruled that there was a violation of the right to personal liberty and security (Article 5§3 of the ECHR).

PROVISION

Article 5 par. 3

PRINCIPAL FACTS

The applicant, Ferdinand Gerardus Zohlandt, is a Dutch national who was born in 1961 and lives in
Uden (the Netherlands).

The case concerned the criminal proceedings against the applicant in connection with a series of
violent crimes.

After a criminal complaint was lodged against Mr Zohlandt for attempted murder, aggravated
assault and destruction of property, he was arrested and placed in police custody on suspicion of
attempted premeditated aggravated assault and illegal possession of a firearm, ammunition and a
knuckleduster. On 16 June 2016, he was taken into initial detention on remand for 14 days by order
of an investigating judge of the Oost-Brabant Regional Court.

In two separate decisions taken on 29 June 2016, the Regional Court dismissed Mr Zohlandt’s
request to suspend his pre-trial detention and decided to extend it for 90 days.

On 29 July 2016, Mr Zohlandt lodged a new application for his release or the suspension of his
pre-trial detention, which was dismissed by the Regional Court on 3 August 2016. The Court of
Appeal dismissed Mr Zohlandt’s appeal on 18 August 2016 and upheld the impugned decision.
On 23 September 2016, the trial started in the Regional Court. Mr Zohlandt’s pre-trial detention was
suspended, with a restraining order being issued, and the proceedings were adjourned.

In a judgment of 3 March 2017, Mr Zohlandt was convicted of attempted premeditated aggravated
assault and several offences under the Weapons and Ammunition Act and sentenced to ten months’
imprisonment less the time spent in pre-trial detention.

Relying in particular on Article 5 § 3 (right to liberty and security) of the Convention, the applicant
complained that the Court of Appeals’ decision of 18 August 2016 had lacked sufficient reasons to
justify his continued detention.

THE DECISION OF THE COURT…

The Court noted in particular that, while paragraph 1c of Article 5 sets out the reasons why pre-trial detention may be granted and paragraph 3, which forms a single whole with the preceding provision, lays down certain procedural guarantees, including the rule that detention pending trial should not exceed a reasonable time, thus regulating its duration.

According to the settled case-law of the Court under Article 5§3 of the ECHR, reasonable suspicion is a necessary condition for the validity of pre-trial detention, but after a certain period of time – ie from the first court decision ordering pre-trial detention – enough is enough. Next, the Court must determine: (a) whether other reasons given by the judicial authorities continue to justify deprivation of liberty; and (b) whether those reasons are ‘relevant’ and ‘sufficient’ and whether the national authorities have demonstrated “Special care” in the conduct of the proceedings. There must also be sufficient justification for any detention period, no matter how short, which must be convincingly demonstrated by the authorities. The reasoning considered to contain ‘relevant’ and ‘sufficient’ reasons – in addition to the existence of reasonable suspicion – in the case law of the Court includes reasons such as the risk of absconding, the risk of pressure being exerted on witnesses or evidence, the risk of collusion, the risk of committing a new offense, the risk of causing public unrest and the need to protect the detainee. Until conviction, an accused must be presumed innocent and the purpose of the order under consideration is essentially to claim his release when his continued detention ceases to be reasonable.

It is primarily for the national judicial authorities to ensure that, in a given case, the temporary detention of an accused does not exceed a reasonable period of time. They must therefore, respecting the principle of the presumption of innocence, consider all the facts in support of or against the existence of the above-mentioned requirement of public interest or justify the deviation from the rule of Article 5 and must state them in their requests for release from prison. Where there may be circumstances that could justify the detention of a person but do not relate to domestic judgments, it is not for the Court to determine and replace the national authorities which decided to detain the accused.

In the present case the Court has observed that the applicant has not challenged before the Court that there was a reasonable suspicion that he had committed an offense and that he had no reason to rule otherwise.

The Court then noted that the applicant’s pre-trial detention was initially based on the risk of committing new offenses. In its decision of 03.08.2016, the District Court, when rejecting the initial request for release from prison, limited itself to referring to the reasons that led to the issuance of the initial decision for temporary detention and, following an appeal, in its decision of 18.08.2016, the Court of Appeal ruled “is of the opinion that serious objections and reasons, as the Regional Court has found, may in fact arise from the case – file, which fully justifies the continuation of the detention on remand”.

The Court noted that those judgments did not meet the above criteria. In particular, they did not substantiate the arguments of the applicant who disputed the risk of committing new offenses which he raised in the context of his application of 26 July 2016 for release from prison.

Consequently, the Court could not accept the Government’s assertion that the domestic Court meeting recorded in the minutes of the trial made up for the lack of details in the written judgments. Indeed, the hearing at the hearing reflected the arguments put forward by the parties, but did not state the reasons for the detention at the discretion of the judicial authority competent to order or extend deprivation of liberty. Only a reasoned decision by these authorities could effectively prove to the parties that they had been heard and enable the appeal and public scrutiny of the administration of justice – given that decisions on pre-trial detention must be adequately reasoned.

In the light of the foregoing, the Court held that, in failing to examine the facts and individual circumstances, the Court of Appeal extended the applicant’s pre-trial detention on grounds which, although “relevant”, could not be considered “sufficient” to justify the continuing deprivation of his liberty. This finding frees the Court from ascertaining whether the competent national authorities have shown “special diligence” in the conduct of the proceedings.

The ECtHR found a violation of the right to personal liberty and security (Article 5§3 of the ECHR).

Just satisfaction: The applicant did not submit any claims for just satisfaction.