THIR D SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 29209/02 by Arjen Mathijs KOMAN against the Netherlands

The European Court of Human Rights (Third Section), sitting on 20 October 2005 as a Chamber composed of:

Mr B.M. Zupančič , President , Mr J. Hedigan , Mr C. Bîrsan , Mrs M. Tsatsa-Nikolovska , Ms R. Jaeger , Mr E. Myjer , Mr David Thór Björgvinsson , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 2 August 2002 ,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility a nd merits of the case together,

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

The applicant, Mr Arjen Mathijs Koman , is a Netherlands national who was born in 1966 and lives in The Hague . He is represented before the Court by Mr J.A.W. Knoester , a lawyer practising in The Hague .

The Government are represented by their Agent, Mrs J. Schukking of the Netherlands Ministry for Foreign Affairs.

A. The circumstances of the case

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

On 24 October 1999 the applicant entered a snackbar at Gouda Central Station wearing a balaclava and forced the staff at knife-point to hand him money from the till. He was stopped by railway police as he tried to leave the station. It was later reported that his breath smelt of drink.

The applicant was arrested and detained for questioning ( ophouden voor verhoor ) at 3.59 p.m.

At 4.30 p.m. the applicant was seen by an assistant public prosecutor ( hulpofficier van justitie ), a senior police officer competent to give certain orders in criminal cases. At 7 p.m. the applicant was seen by a doctor. Both found that the applicant was not in a fit state to be questioned. It appeared that he was much the worse for drink and drugs.

The six-hour time-limit within which the applicant should have been either released or ordered taken into police custody ( inverzekeringstelling ) ended at 9.59 p.m.

The applicant was brought before an assistant public prosecutor the following morning, 25 October 1999 , at 9.45 a.m. He was questioned by police officers at 10.02 a.m. and 10.51 a.m. At 11.50 a.m. the applicant was again brought before the assistant public prosecutor, who ordered him to be placed in police custody at noon .

On 27 October 1999 , the applicant, assisted by counsel, was heard by an investigating judge ( rechter-commissaris ). He asked to be released immediately. This the investigating judge refused to do. She found the police custody to be unlawful as a matter of domestic law but ordered that the applicant be taken into detention on remand. The official record drawn up by the investigating judge contains her decision, which is in the following terms:

“The suspect [ verdachte ; i.e. the applicant] was arrested on 24 October at 3.59 p.m. , but was unresponsive ( niet aanspreekbaar ). He was then locked in a cell to sober up and brought before the assistant public prosecutor on 25 October 1999 at 9.45 a.m.

The suspect was questioned at 10.02 a.m. and 10.51 a.m. , after which he was again brought before the assistant public prosecutor at 11.50 a.m. and taken into police custody at 12 noon , that is, 20 hours after his arrest. Since it appears that the applicant was responsive ( aanspreekbaar ) by 9.45 a.m. , he ought not to have been taken into police custody only at 12 noon . In view of the seriousness of the crime of which the suspect is suspected and the serious indications ( ernstige bezwaren ) that have arisen in his regard, the request for immediate release must be refused, the applicant having been taken into detention on remand without preliminaries ( nu de verdachte rauwelijks in bewaring is gesteld ).”

The applicant was tried by the Regional Court ( arrondissementsrechtbank ) of The Hague on 2 February 2000 . The judgment notes that he was taken into police custody on 25 October 1999 .

On 16 February 1999 the Regional Court gave judgment finding the applicant guilty of extortion (Article 317 of the Criminal Code – Wetboek van Strafrecht ). It sentenced him to twenty-four months ’ imprisonment, six months of which was suspended on condition that he undergo treatment for his addiction problems, as an in-patient if need be, under appropriate supervision. Its reasoning included the following:

“The suspect ’ s counsel has stated at the hearing that the order for the applicant to be taken into police custody was given too late, i.e. after the expiry of the time-limit prescribed by law. Counsel has invoked Article 359a § 1 a of the Code of Criminal Procedure ( Wetboek van Strafvordering ) and argued that in the event of a conviction this procedural violation ( vormverzuim ) should lead to a reduction of sentence. On this point, the Regional Court holds, considering also the seriousness of the crime committed by the suspect, that the procedural violation mentioned is not of such a nature that it should lead to a reduction of sentence. In so holding the Court of Appeal has had regard to the fact that it is not apparent that the said violation caused the suspect any substantial prejudice.”

The applicant appealed to the Court of Appeal ( gerechtshof ) of The Hague .

A hearing was held on 13 September 2000 , at which the applicant stated that he had drunk a bottle of port wine and taken cocaine on 24 October 1999 . The applicant ’ s counsel again argued that the applicant ’ s sentence should be reduced in view of the unlawfulness of the order placing him in police custody.

The Court of Appeal gave judgment on 27 September confirming the applicant ’ s conviction. Echoing the reasoning of the Regional Court , it rejected the plea for a reduction of sentence in the following terms:

“The suspect ’ s counsel has stated at the appeal hearing that the order for the applicant to be taken into police custody was given too late, i.e. after the end of the time-limit prescribed by law. Counsel has invoked Article 359a § 1 a of the Code of Criminal Procedure and argued that in the event of a conviction this procedural violation should lead to a reduction of sentence. On this point, the Court of Appeal holds, considering also the seriousness of the crime committed by the suspect, that the procedural violation mentioned is not of such a nature that it should lead to a reduction of sentence. In so holding the Court of Appeal has had regard to the fact that it is not apparent that the said violation caused the suspect any substantial prejudice.”

Noting that the applicant had evaded treatment of his addiction in an institution, it imposed an unconditional sentence of sixteen months ’ imprisonment and ordered the execution of an earlier suspended 256-day prison sentence not relevant to the present case.

The applicant lodged an appeal on points of law ( cassatie ) to the Supreme Court ( Hoge Raad ), which gave judgment dismissing the appeal on 5 February 2002 .

B. Relevant domestic law

1. Criminal procedure

The following provisions of the Code of Criminal Procedure ( Wetboek van Strafvordering ), as in force at the time, are relevant to the case before the Court:

Article 57

“1. The public prosecutor or the assistant public prosecutor before whom the suspect is brought, or who has himself arrested the suspect, may, after having questioned him, order in the interests of the investigation that he shall remain at the disposal of the authorities responsible for the administration of justice ( de justitie ) and shall be placed in police custody for that purpose in a place indicated in the order. ...”

Article 58

“1. A police custody order shall only be given in the case of a punishable act ( strafbaar feit ) for which detention on remand is permitted.

2. The police custody order shall be valid for no more than three days. In cases of urgent necessity the order can be prolonged once for a further period of no more than three days.

3. As soon as the interests of the investigation so allow, the assistant public prosecutor shall order the suspect released. Otherwise, he shall propose to the public prosecutor that police custody be prolonged. The public prosecutor may order the suspect to be brought before him to be heard.”

Article 59a

“1. The suspect shall be brought before the investigating judge for interrogation no later than three days and fifteen hours from the moment of his arrest.

...

4. At the time of his interrogation [by the investigating judge], the accused may request the investigating judge to release him [from police custody].

5. If the investigating judge considers the police custody unlawful ( onrechtmatig ), he shall order the accused ’ s immediate release. Otherwise, the investigating judge shall make a note of his decision in the official record of the interrogation or, if the suspect has made a request for his release, the investigating judge shall reject it. ...”

Article 61

“1. If the suspect is not taken into police custody ... nor ... brought before the investigating judge, he shall be released promptly ( dadelijk ) after questioning.

2. Under no circumstances ( in geen geval ) shall the applicant be detained for questioning for longer than six hours, not counting the time between midnight and nine a.m. ”

Article 63

“1. The investigating judge may, upon an application ( vordering ) by the public prosecutor, order the suspect ’ s initial detention on remand. ...”

Article 359a

“1. The [trial court] may, if it appears that there have been procedural violations during the preliminary investigation which can no longer be redressed and the legal consequences thereof are not apparent from the law, decide that:

a. the sentence shall be reduced in proportion to the seriousness of the procedural violation, if the harm done by the violation in question can be thus compensated; ...

2. In applying the first paragraph, the [trial court] shall consider the interest that is intended to be served by the procedural rule that has been violated, the seriousness of the violation and the harm thereby caused.”

In a decision in camera of 7 October 1988, Nederlandse Jurisprudentie (Netherlands Law Reports) 1989, no. 510, the Supreme Court held that a failure to observe legal requirements in relation to police custody might affect the lawfulness of the police custody but did not of itself prevent the investigating judge from subsequently ordering the suspect ’ s initial detention in remand.

2. Public order

Section 2 of the 1993 Police Act ( Politiewet ) provides as follows:

“The duty of the police shall be to ensure, in subordination to competent authority and in conformity with the law in force, the actual maintenance of the legal order and to provide help to those who need it.”

In a judgment of 11 March 1929, Nederlandse Jurisprudentie 1929, page 895, the Supreme Court held under the predecessor provision (which was identical to section 2 of the modern Police Act, save for its more archaic grammar) that the task of the police comprised securing public order, safety and peace; that this preventive task included removing an inebriated person from the public highway; and that a patrolling police officer made reasonable use of this authority by detaining such a person for as long as it took them to sober up.

COMPLAINTS

The applicant complained under Article 5 § 1 of the Convention that he had been detained unlawfully – at least from 9.45 a.m. until 12 noon on 25 October 1999 (two hours fifteen minutes); possibly from 9.59 p.m. on 24 October until noon the following day (more than fourteen hours) – in that a “procedure prescribed by law” had not been followed.

He complained under Article 6 § 3 (c) of the Convention that the Regional Court and the Court of Appeal, in findings endorsed by the Supreme Court, held that the question of the lawfulness of the applicant ’ s police custody could not be considered as part of the trial.

He complains under Article 8 of the Convention that his unlawful detention violated his right to respect for his private and family life.

He complains under Article 13 of the Convention that there was no effective remedy available to him against the investigating judge ’ s decision.

Finally, he complains under Article 14 of the Convention that persons suspected of crimes warranting detention on remand ( voorlopige hechtenis ) do not have the same possibilities to have the lawfulness of their police custody reviewed as do persons allowed to remain at large pending trial: the latter can ask the first-instance and appellate courts and the Supreme Court to provide such review.

THE LAW

1. Article 5 § 1 of the Convention, in relevant part, provides 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; ...”

The applicant was detained beyond the six-hour period allowed by Article 61 § 2 of the Code of Criminal Procedure. He argues that this was illegal, no police custody order having been given in due time (see Article 61 § 1 of the Code of Criminal Procedure).

In his submission, this meant that the “procedure prescribed by law” had not been followed and that, consequently, he had been the victim of a violation of Article 5 § 1.

The Government acknowledged that there had been no statutory basis for the deprivation of liberty undergone by the applicant from 9.59 p.m. on 24 October 1999 until midnight and from 9 a.m. until 11.50 a.m. the following day. They denied, however, that, as a matter of domestic law, every transgression of the six-hour time-limit set by Article 61 § 2 of the Code of Criminal Procedure had to be followed by the immediate release of the suspect. They emphasised the applicant ’ s physical state at the time, which had been such that it was impossible to question him, and the seriousness of his crime.

The Court will have regard to the particular circumstances of the case. It cannot be ignored that the applicant had drunk a considerable quantity of alcohol, in addition to which he had used the illegal drug cocaine. It was confirmed by a doctor, who saw the applicant that evening at 7 p.m. , that the applicant was not in a fit state to be questioned.

It should be pointed out that the Court has held, albeit in a different context (that of Article 5 § 1 (e) of the Convention), that persons whose conduct and behaviour under the influence of alcohol pose a threat to public order or themselves can be taken into custody for the protection of the public or their own interests, such as their health or personal safety ( Witold Litwa v. Poland , no. 26629/95, § 61, ECHR 2000 ‑ III) .

It seems that the police decided in effect to activate the normal criminal procedure from the moment when the applicant was in a fit state to be questioned. It is clear, in the light of the applicable provisions of domestic law, that at least part of the applicant ’ s detention from 9.59 p.m. on 24 October 1999 until noon the following day was not covered by the Code of Criminal Procedure. Indeed the investigating judge, in her decision ordering the applicant detained on remand without preliminaries, admitted as much; so did the Regional Court and the Court of Appeal in their judgments.

Netherlands criminal procedure currently does not make provision for cases of this nature. The power to keep a drunk and disorderly person in detention to sober up, which was derived by the Supreme Court in its above-mentioned judgment of 1929 from the police ’ s general duty to maintain order, did not and does not specifically relate also to persons who are already lawfully deprived of their liberty for other reasons.

It may be argued that he who can do the greater (in this case, detain a person to sober up even in the absence of any criminal suspicion which would justify a police custody order) can do the lesser (i.e. detain a person to sober up even though the substantive conditions for detention under criminal procedure are met). Nevertheless, in the absence of any provision of criminal procedure appropriate to the case it would have been preferable had the police custody order been given in time, notwithstanding that the order would have had to be given without first charging and questioning the applicant and even without first offering the applicant the opportunity to state his position to an assistant public prosecutor. By acting as they did, the police authorities committed a procedural irregularity.

Be that as it may, it cannot in reason be found that this irregularity caused the applicant any real harm. He would have been deprived of his liberty in any case, albeit on a different legal ground. Moreover, he now had the opportunity to state his position before the police custody order was given.

In these special circumstances, the Court considers that the threefold acknowledgement – by the investigating judge, the Regional Court and the Court of Appeal – that part of the applicant ’ s detention was in violation of domestic procedure constitutes quite adequate redress.

The applicant can therefore no longer claim to be a victim of a violation of his rights under Article 5 § 1 as required by Article 34 of the Convention, and this aspect of the case is to be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

2. Article 6 § 3 (c) of the Convention provides as follows:

“3. Everyone charged with a criminal offence has the following minimum rights:

...

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

...”

The applicant ’ s complaint under this provision appears to be that the domestic courts did not take his unlawful detention into consideration as a factor mitigating his sentence.

The Government did not comment.

The Court will confine itself to pointing out, firstly, that the legality of pre-trial detention is not a matter subsumed under “the determination of a criminal charge” and, secondly, that Article 6 does not contain any rules relevant to sentencing.

It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

3. Article 8 of the Convention, in relevant part, provides as follows:

“1. Everyone has the right to respect for his private and family life, ...

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the prevention of disorder or crime, ...”

The applicant complained of a disproportionate interference with his private and family life in that he had been deprived of his liberty without any justification.

The Government did not comment.

In the light of its findings under Article 5 § 1, the Court does not consider it necessary to examine this complaint separately.

4. Article 13 of the Convention provides as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The applicant complained that Netherlands law made no provision for any legal remedy against a refusal by the investigating judge to order the release of a person taken into police custody.

The Government submitted that the applicant had had the possibility to state his case to the investigating judge and could also have brought a civil action afterwards.

The Court considers that this complaint may be more appropriately examined under Article 5 § 4 of the Convention, which is the lex specialis in relation to Article 13, applicable to detention alleged to violate Article 5 (see, for example, Chahal v. the United Kingdom , judgment of 15 November 1996, Reports of Judgments and Decisions 1996 ‑ V, p. 1865, § 126).

Article 5 § 4 of the Convention provides as follows:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

As matters stand the applicant had the benefit of a hearing before an investigating judge, from whom he could seek an order for his release. In the circumstances this was in itself a remedy satisfying the requirements of Article 5 § 4.

Inasmuch as the applicant argues that the decision of the investigating judge in his case ought to have been reviewable by the trial courts, the Court points to its above findings under Article 5 § 1 of the Convention and considers that there is no separate issue under Article 5 § 4.

In sum, this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.

5. The Court, of its own motion, raised the question whether there had been a violation of Article 5 § 5 of the Convention, which provides as follows:

“Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

It follows from the Court ’ s above findings under Article 5 § 1 that there is no issue under this provision.

6. Article 14 of the Convention provides as follows:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The applicant did not specify to which Convention rights and freedoms his allegation of discrimination related.

The Court for its part finds no appearance of discrimination contrary to Article 14 taken together with any other provision of the Convention or its Protocols in the present case, from which it follows that this part of the application is to be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Vincent Berger Boštjan M. Zupančič Registrar President