FOURTH SECTION

DECISION

Application no. 54892/16 Firozhkan BADULLAH against the Netherlands

The European Court of Human Rights (Fourth Section), sitting on 25 June 2019 as a Chamber composed of:

Jon Fridrik Kjølbro , President, Faris Vehabović , Paul Lemmens, Iulia Antoanella Motoc, Carlo Ranzoni , Georges Ravarani , Jolien Schukking, judges, and Marialena Tsirli, Section Registrar ,

Having regard to the above application lodged on 16 September 2016,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Firozhkan Badullah , is a Dutch national who was born in 1965 and lives in Rotterdam. He was represented before the Court by Mr R.C. Fransen , a lawyer practising in Amsterdam.

2. The Dutch Government (“the Government”) were represented by their Agent, Ms B. Koopman , of the Ministry of Foreign Affairs.

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4. On 11 November 2013 the applicant was arrested and taken into police custody ( inverzekeringsstelling ) on suspicion of offences under the Opium Act ( Opiumwet ), including bringing large quantities of cocaine into the Netherlands.

5. On 14 November 2013 he was placed in pre-trial detention ( inbewaringstelling ) for fourteen days by order of an investigating judge ( rechter-commissaris ) of the Rotterdam Regional Court ( rechtbank ). The relevant part of the decision includes the following sentence:

“The suspicion has arisen that the suspect has committed the fact/facts (“ De verdenking is gerezen dat de verdachte zich schuldig heeft gemaakt aan het feit /de feiten ”) described in the order for placement in police custody of 11 November 2013, for which pre-trial detention ( voorlopige hechtenis ) is allowed ...”

6. On 26 November 2013 the applicant was placed in extended pre-trial detention ( gevangenhouding ) for ninety days by order of the Rotterdam Regional Court. An appeal and request by him for suspension of his pre ‑ trial detention ( ambtshalve schorsing van de voorlopige hechtenis ) were rejected on 19 December 2013 by the Court of Appeal ( gerechtshof ) of The Hague, sitting in chambers ( raadkamer ).

7. An indictment ( dagvaarding ) was issued on 24 January 2014 and the applicant was summoned to appear before the Rotterdam Regional Court in order to stand trial.

8. On 7 February 2014 the trial started against the applicant and nine co ‑ accused before the Rotterdam Regional Court. It adjourned the proceedings for an indefinite period and remitted the case to the investigating judge pending completion of the final investigation file and, subsequently, to determine any requests for further investigative measures.

9. The Regional Court further granted a request by the applicant for suspension of his pre-trial detention ( schorsing van de voorlopige hechtenis ) starting from the moment he paid 25,000 euros (EUR) in bail ( borgsom ) and ending on the date and time of a final ruling in the criminal proceedings. The suspension was made subject to a number of further conditions, including the standard condition that “the suspect [shall] not commit a criminal act during the period of suspension” (“ de verdachte zal zich gedurende de schorsingsperiode niet aan enig strafbaar feit schuldig maken ”). The decision of the Regional Court also stated that the EUR 25,000 would serve as security for the applicant ’ s compliance with the suspension conditions.

10. The trial before the Rotterdam Regional Court was resumed on 8 February 2016. Further hearings were held on 8, 9, 11 and 15 February 2016.

11. At 1.05 a.m. on 12 March 2016 the applicant, together with four other suspects, was arrested in a warehouse where drugs, stolen bicycles and stolen golden chalices were found. He was taken into police custody for three days. He was suspected of receiving and handling stolen goods ( opzetheling ), as well as further offences under the Opium Act, namely possession of 30 kg of cocaine and 86 kg of cannabis. On the same day he was brought before the assistant public prosecutor ( hulpofficier van justitie ) who ordered his placement in police custody.

12. On 15 March 2016, after having been questioned and having denied the allegations against him, the applicant was placed in pre-trial detention ( inbewaringstelling ) for eight days by order of an investigating judge of the Zeeland West-Brabant Regional Court, who held that:

“ it appears from the formal record ( proces-verbaal ) and/or questioning ( verhoor ) of the suspect that there are serious indications ( ernstige bezwaren ) against him as regards the facts set out in the request for his detention ( vordering inbewaringstelling ). It appears from certain circumstances that there is a serious reason of public safety ( gewichtige reden van maatschappelijke veiligheid ) necessitating the deprivation of liberty of the suspect without delay. That is to say, pre-trial detention is reasonably necessary for discovering, other than through the suspect ’ s statements, the truth.”

13. When this detention order expired, no request for the applicant ’ s extended pre-trial detention was filed by the public prosecutor ’ s office at the Zeeland West-Brabant Regional Court.

14. In the meantime, on 17 March 2016, the Rotterdam public prosecutor requested the Rotterdam Regional Court to revoke the suspension of the applicant ’ s pre-trial detention and to declare forfeit the bail of EUR 25,000 for the applicant ’ s failure to respect the condition that during the suspension of his pre-trial detention he would not commit a criminal act. This request was based on the formal record ( proces-verbaal ) drawn up by the police of the applicant ’ s arrest on 12 March 2016 and the investigating judge ’ s order of 15 March 201 6 to place the applicant in pre ‑ trial detention.

15. On 21 March 2016 the Rotterdam Regional Court revoked the suspension of the applicant ’ s pre-trial detention at the public prosecutor ’ s request of 17 March 2016. It held:

“Having noted the order for placement in extended detention of 26 November 2013;

Having noted the order of 7 February 2014 to suspend this placement in extended pre-trial detention, which ... contained the condition that the suspect [shall] not commit any criminal act during the time in which his pre-trial detention is suspended and which [also] included as a condition, inter alia , payment of bail in the sum of EUR 25,000;

Having noted the formal record submitted by the public prosecutor with the [present] request, from which it appears that the applicant has nevertheless committed a criminal offence during the suspension of the pre-trial detention” (“ dat de verdachte zich toch tijdens de schorsing van de voorlopige hechtenis heeft schuldig gemaakt aan een strafbaar feit ”);

Having heard the public prosecutor, the suspect and counsel for the suspect;

Considering that the above-mentioned conditions have not been complied with and that therefore the suspension of the pre-trial detention must be revoked and the bail declared forfeited.”

The decision was not amenable to appeal.

16. On 25 March 2016 the applicant was placed in pre-trial detention in accordance with the order of 21 March 2016.

17. On 31 March 2016 the Rotterdam Regional Court convicted the applicant of the charges relating to his arrest on 11 November 2013, and sentenced him to three and a half years ’ imprisonment, less the time spent in pre-trial detention. Having learned independently of the decision of 21 March 2016 to revoke the suspension of the applicant ’ s pre-trial detention, it further rejected the applicant ’ s request to lift or suspend his pre-trial detention until a final decision was given on the charges that had been brought against him. No further information about these criminal proceedings was submitted to the Court.

B. Relevant domestic law and practice

18. The relevant domestic law and practice as regards pre-trial detention is set out in Geisterfer v. the Netherlands (no. 15911/08, 9 December 2014).

19. In addition, Article 80 §§ 1 and 2 of the Code of Criminal Procedure states:

“1. The court may – ex officio , or on the application of the public prosecution service or at the request of the suspect – order that the detention on remand shall be suspended as soon as the suspect, after putting up guarantees or not as the case may be, has declared himself willing to comply with the conditions governing the suspension. Such application or request shall state reasons.

2. The conditions governing the suspension shall in all cases include the following:

1 o . that the suspect not seek to evade the execution of the detention on remand order if its suspension should be terminated;

2 o . that the suspect, in the event he should be sentenced for the offence, for which pre-trial detention was ordered, to a punishment other than a default custodial sentence, shall not evade its enforcement.

3 o . that the suspect, insofar as conditions concerning the suspect ’ s conduct are attached to the suspension, shall cooperate with fingerprinting for the purpose of establishing his identity or provide an identity document, as referred to in section 1 of the Compulsory Identification Act, for inspection.”

Article 82 of the Code of Criminal Procedure reads:

“1. The court may, on its own initiative or upon application by the public prosecution service, order revocation of the suspension [of pre-trial detention] at any time.

2. Before issuing such order, the court shall hear the suspect where possible and may order that he be summoned to appear for that purpose, where necessary with an attached order to forcibly bring him to court.”

20. If revocation of the suspension of pre-trial detention is sought by the prosecution on the basis of a failure to respect the condition not to commit a criminal offence , the criterion to be applied by the competent judge is the existence of a “reasonable suspicion” ( redelijk vermoeden ) within the meaning of Article 27 of the Code of Criminal Procedure or “serious indications” ( ernstige bezwaren ) within the meaning of Article 67 § 3 of the Code of Criminal Procedure (see, for instance, Amsterdam Court of A ppeal, 15 February 2017 (ECLI:NL:GHAMS:2017:813)).

21. The relevant part of Article 83 of the Code of Criminal Procedure reads:

“1. If the suspension is revoked on account of failure to comply with the conditions, then, in the decision revoking the suspension, the court may also declare that the security becomes the property of the State ...

2. The decision shall be deemed a final decision of the civil court and shall be enforced as such ...

4. If the suspect, after revocation of the suspension, evades enforcement of the pre-trial detention order, the security shall be declared the property of the State, if this has not already been done ...”

COMPLAINT

22. The applicant complained under Article 6 § 2 of the Convention that the decision of the Rotterdam Regional Court of 21 March 2016 revoking the suspension of his pre-trial detention had violated the presumption of innocence since, given its wording, it appeared to have been based on the court ’ s finding that he had committed a further offence, despite the fact he had not yet been tried and proved guilty of that offence.

THE LAW

23. The applicant complained about a breach of the presumption of innocence as guaranteed by Article 6 § 2 of the Convention, which reads:

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

A. Admissibility of the complaint

24. The Government argued that the applicant had failed to exhaust domestic remedies, as required by Article 35 § 1 of the Convention. As the decision of 21 March 2016 had not been amenable to appeal, the applicant could have brought a civil action in tort under Article 6:162 of the Civil Code against the State on the ground that the Regional Court ’ s decision had been unlawful on account of a violation of the principle of presumption of innocence.

25. The applicant disagreed with the Government ’ s objection, submitting that the remedy suggested by the Government could not be used for challenging the lawfulness of a judicial decision as this would be contrary to the principle of “the closed system of remedies” of the Dutch legal system.

26. The Court finds that it is not necessary to reply to the Government ’ s objection as, in any event, the application is inadmissible for the following reasons.

B. Substance of the complaint

1. The parties ’ submissions

27. The Government submitted that the applicant ’ s case, which concerned revocation of the suspension of pre-trial detention, had to be distinguished from the situation in the case of El Kaada v. Germany ( no. 2130/10 , 12 November 2015 ) which had concerned the enforcement of a suspended prison sentence. In the latter case, under domestic law, the commission of a further criminal offence had been a condition that would trigger the enforcement of the conditionally suspended prison sentence. In that context the domestic court had found it necessary to determine that the person concerned had committed a further offence, a mere suspicion not being sufficient. The instant case, however, concerned revocation of the suspension of pre-trial detention. Decisions taken in this context could not be regarded as requiring a prior determination of guilt. A reasonable suspicion that the person concerned had committed a further criminal offence was sufficient and it was clear that the decision at issue had been based on the applicant being suspected of having committed a further offence and not on a finding of guilt. Leaving it to the Court to qualify the choice of words by the Rotterdam Regional Court, the Government considered that it was clear that the existence of serious grounds for suspicion was the standard by which the Regional Court made its assessment, and not whether or not the applicant ’ s guilt had been established at that point.

28. The applicant submitted that it was clear that the reason given for the request and subsequent decision to revoke the suspension of his pre-trial detention had been that he had failed to comply with one of the conditions set, namely that he would not commit a further criminal offence. He submitted, referring to the Court ’ s findings in the cases of Minelli v. Switzerland (25 March 1983, Series A no. 62) and El Kaada (cited above), that, under the domestic law relating to a request for execution of a conditionally imposed prison sentence, if such a request was based on the person concerned having reoffended, a determination of guilt was required before the court could issue an execution order. Although domestic law did not contain such a requirement for a revocation of suspension of pre-trial detention, the applicant suggested that the objective of the legislature had been that a decision to revoke suspension – as in the case at hand – must be based on a final judgment and not merely a provisional one concerning the question of whether a certain suspensory condition had been contravened. As the decision of 21 March 2016 had implicitly found him guilty, his rights under Article 6 § 2 had thus been breached.

2. The Court ’ s assessment

29. Noting the applicant ’ s reliance on the case of El Kaada (cited above), the Court considers at the outset that – unlike the situation in the case of El Kaada which concerned the revocation of a conditional suspension on probation of a prison sentence – it would defy logic to require a final conviction of a further offence, rather than a prima facie suspicion of a further offence, before suspension of pre-trial detention ordered in relation to an older offence could be revoked on the grounds that the suspect had committed a further criminal offence. The Court has accepted that the risk of reoffending, if convincingly established, may lead the judicial authorities to place and leave a suspect in detention in order to prevent any attempts to commit further offences (see Ramkovski v. the former Yugoslav Republic of Macedonia , no. 33566/11 , § 52, 8 February 2018, and Paradysz v. France , no. 17020/05, § 71, 29 October 2009).

30. As to the remaining question of whether the actual wording used in the revocation decision at issue contravened the presumption of innocence under Article 6 § 2, the Court reiterates the applicable general principles (as set out recently in El Kaada , cited above, §§ 52-55 with further references), namely that Article 6 § 2 is aimed at preventing the undermining of a fair criminal trial by prejudicial statements made in close connection with those proceedings. The presumption of innocence is one of the elements of the fair criminal trial that is required by Article 6 § 1 of the Convention and this principle will be violated if a judicial decision or a statement by a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved guilty according to law. It suffices, even in the absence of any formal finding, that there is some reasoning suggesting that the court or the official regards the accused as guilty.

31. A fundamental distinction must be made between a statement that someone is merely suspected of having committed a crime and a clear declaration, in the absence of a final conviction, that an individual has committed the crime in question. The latter violates the principle of the presumption of innocence while the former has repeatedly been considered as complying with Article 6. The Court has consistently emphasised the importance of the choice of words by public officials in their statements before a person has been tried and found guilty of a particular criminal offence. Moreover, whether or not a public official ’ s remarks breach the principle of the presumption of innocence must be examined in the context of the particular circumstances in which the offending remarks were made (see Güç v. Turkey , no. 15374/11 , § 38 with further references, 23 January 2018). Much will depend on the nature and the context of the proceedings in which the impugned wording was used (see, Allen v. the United Kingdom [GC], no. 25424/09, § 125, ECHR 2013).

32. Now turning to the case at hand, it is for the Court to determine whether, in the light of the above principles, the reasoning underlying the decision to revoke the suspension of the applicant ’ s pre-trial detention reflected an opinion that the applicant was guilty of receiving and handling stolen goods and offences under the Opium Act committed on 12 March 2016 before he had been proved guilty of that offence according to law.

33. The Court has noted the documents referred to by the Rotterdam Regional Court in its decision of 21 March 2016, i.e. the documents submitted by the public prosecutor on 17 March 2016 in support of the request to revoke the suspension of the applicant ’ s pre-trial detention, which explicitly mention the existence of serious indications against the applicant in relation to his arrest on 12 March 2016. When placed in context and taking into account the nature of the proceedings, it is clear that these serious indications concerned the applicant ’ s suspected involvement in receiving and handling stolen goods and fresh offences under the Opium Act and that the ground for revocation referred to was the failure to respect the condition attached to the suspension of his pre-trial detention that the applicant would not commit a criminal offence.

34. The Court finds that the reasoning given for revoking the suspension of the applicant ’ s pre-trial detention can reasonably be interpreted as an indication, as the Regional Court was required to do, that there were serious indications that the applicant had committed a criminal offence. Even if the Regional Court ’ s choice of words was unfortunate and the reasons given were succinct and need to be considered in context, the Court considers that the wording of the Regional Court ’ s decision in substance was limited to a finding that there were reasonable grounds for suspecting that the applicant had committed a criminal offence. The Court, therefore, cannot find that the reasoning underlying the decision to revoke the suspension of the applicant ’ s pre-trial detention offended the presumption of innocence guaranteed to the applicant under Article 6 § 2 of the Convention.

35. It follows that the application must be rejected as inadmissible for being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 18 July 2019 .

Marialena Tsirli Jon Fridrik Kjølbro Registrar President