FOURTH SECTION

DECISION

Application no. 59133/16 Jean Philippe Armand NEVÉ 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 5 October 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 J.P.A. Nevé , is a Dutch national who was born in 1984 and lives in Amsterdam. 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 15 April 2016 the applicant was arrested and taken into police custody ( inverzekeringsstelling ) on suspicion of shoplifting.

5. On 18 April 2016 an investigating judge ( rechter-commissaris ) of the Amsterdam Regional Court ( rechtbank ) issued an order for him to be placed in pre-trial detention ( inbewaringstelling ) for fourteen days.

6. On the same day the investigating judge noted that, even though the indications and grounds for the pre-trial detention still existed, there were reasons to suspend it ( schorsing van de voorlopige hechtenis ). The suspension was subject to the condition, inter alia , that “the suspect [shall] not commit a criminal act” (“ de verdachte zal zich niet aan een strafbaar feit schuldig maken ”).

7. On 25 September 2016 the applicant was arrested again on suspicion of shoplifting.

8. When questioned by police the same day, the applicant invoked his right to remain silent and stated that he would only make a statement before the investigating judge. In the course of subsequent questioning by an assistant public prosecutor ( hulpofficier van justitie ) later that day, the applicant stated “I do not steal, I take”. The assistant public prosecutor ordered the applicant to be taken into police custody.

9. On 27 September 2016 the prosecutor requested that the investigating judge of the Amsterdam Regional Court revoke the suspension of the applicant ’ s pre-trial detention related to the incident for which he had been arrested on 15 April 2016 (see paragraphs 4-6 above). According to the prosecutor, the applicant had, as could be seen from an official record ( proces-verbaal ) attached to the request, not complied with the conditions attached to the suspension of his pre-trial detention as he had committed a further criminal offence.

10. On 27 September 2016, when appearing before the investigating judge, the applicant denied the allegations against him. The relevant part of the official record of this hearing reads:

“Counsel [for the applicant] argues ... I refer you to a ruling of the European Court NJB [ Nederlands Juristen Blad , Netherlands Law Review] 2016/202 [ El Kaada v. Germany , no. 2130/10, 12 November 2015]. This states that no measures can be taken when guilt has not been determined by a judge. I am asking you to reject the request. ...

The investigating judge ... revokes the suspension [of the applicant ’ s pre-trial detention] and informs the suspect accordingly.

Reasons:

... I am ... of the opinion that it is abundantly clear that there are serious indications [against the applicant] on the basis of which revocation of the suspension [of the applicant ’ s pre-trial detention] can be ordered (“... dat er overduidelijk ernstige bezwaren zijn op grond waarvan de opheffing van de schorsing kan plaatsvinden ”). Furthermore, I do not see any European obstacles.”

11. The written order revoking the suspension of the pre-trial detention, issued that day, stated that “it has appeared that the suspect has not complied with one or more conditions attach ed to the suspension of his pre ‑ trial detention” (“ gebleken is dat verdachte zich niet heeft gehouden aan één of meer voorwaarden , die verbonden waren aan de schorsing van zijn voorlopige hechtenis ”). The decision was not amenable to appeal.

12. On 10 October 2016 the Amsterdam Regional Court ordered the applicant ’ s extended detention ( gevangenhouding ) for ninety days in connection with the incident for which he had been arrested on 25 September 2016. It also rejected a request by the applicant for suspension of his pre-trial detention.

13. On 20 December 2016 the Amsterdam Regional Court, following a joined hearing on the charges brought against the applicant concerning the incidents for which he had been arrested on 15 April 2016 and 25 September 2016, convicted the applicant and sentenced him to four months ’ imprisonment, one month of which was suspended. It further ordered, at the applicant ’ s request, the termination of the applicant ’ s pre-trial detention.

14. On 30 December 2016 the applicant filed an appeal against this judgment. No further information about these proceedings was submitted to the Court.

B. Relevant domestic law and practice

15. 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).

16. 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.”

17. 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 Appeal, 15 February 2017 (ECLI:NL:GHAMS:2017:813)).

COMPLAINT

18. The applicant complained under Article 6 § 2 of the Convention that the decision of the investigating judge of the Amsterdam Regional Court of 27 September 2016 to revoke the suspension of his pre-trial detention on the grounds that he had not complied with the conditions attached to that suspension had violated the presumption of innocence.

THE LAW

19. 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

20. 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 27 September 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 grounds that in his case fundamental principles of law had been disregarded.

21. 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.

22. 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

23. 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. The language used in taking this decision – having regard to the nature and context of the decision – could not be interpreted as an indication or declaration of guilt contrary to Article 6 § 2.

24. 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 27 September 2016 had implicitly found him guilty, his rights under Article 6 § 2 had thus been breached.

2. The Court ’ s assessment

25. 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 revocation of the 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).

26. 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.

27. 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).

28. 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 the shoplifting committed on 25 September 2016 before he had been proved guilty of that offence according to law.

29. The Court notes that, according to the official record of the hearing held on 27 September 2016, the correctness of which is not in dispute, the investigating judge found, after hearing the applicant, that there were serious indications against him on the basis of which revocation of the suspension of his pre-trial detention could be ordered. When placed in context and taking into account the nature of the proceedings, by having regard to the prosecutor ’ s request of 27 September 2016 and the wording of the investigating judge ’ s decision of the same date, it is clear that these serious indications concerned the applicant ’ s arrest on 25 September 2016 on suspicion of shoplifting 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.

30. 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 investigating judge was required to do, that there were serious indications that the applicant had committed a criminal offence. Even if the reasons given were succinct and need to be considered in context, the Court considers that the wording used by the investigating judge 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.

31. 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