SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 64512/01 by Anthony Edward SMITH against the Netherlands

The European Court of Human Rights (Second Section), sitting on 6 July 2004 as a Chamber composed of:

Mr J.-P. Costa , President , Mr L. Loucaides , Mr C. Bîrsan , Mr K. Jungwiert , Mr V. Butkevych , Mrs W. Thomassen , Mrs A. Mularoni, judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application lodged on 16 November 2000,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Anthony Edward Smith, is a United Kingdom national, who was born in 1967 and, at the time of the introduction of the application, was detained in the Netherlands. He is represented before the Court by Mr A.A. Franken, a lawyer practising in Amsterdam.

A. The circumstances of the case

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

On 5 July 2000, the United Kingdom judicial authorities requested the Netherlands authorities for international judicial assistance in the context of a criminal investigation, code-named “Offside”, being conducted in the United Kingdom into organised drug trafficking. The applicant was a main suspect in the investigation.

In the context of this request, the Netherlands criminal investigation authorities intercepted and recorded telephone conversations and carried out systematic observations. It appeared from these intercepted conversations that the applicant was planning to purchase, on 2 August 2000 in the Netherlands, a shipment of XTC-pills and hashish destined for the United Kingdom and that, to this end, he had made contacts with Mr and Mrs V.B., a couple residing in Tilburg, the Netherlands.

On 2 August 2000, while being observed by the police, the applicant drove a camper with United Kingdom licence plates into a garage next to the home of Mr and Mrs V.B. After he had driven into the garage, the garage doors were closed. After a while, the garage doors opened again and the applicant drove off to another location in Tilburg. After consultations between the police and the public prosecutor ( officier van justitie ), the latter ordered the police, inter alia , to arrest the applicant and to search the camper.

On the same day, at around 7.55 p.m., the police arrested the applicant, who at that moment was standing next to the open door of the driver’s seat of the camper. 135,236 XTC tablets and 87 kilograms of hashish were found in the camper. A number of co-suspects, including Mr and Mrs V.B., were also arrested that evening.

According to the formal record ( proces-verbaal ) drawn up on 2 August 2000 by the two police officers who had arrested the applicant, they had informed the applicant why he was being arrested.

At around 9.45 p.m. on 2 August 2000, the applicant was brought before the deputy public prosecutor. After the deputy public prosecutor had informed the applicant that he was not obliged to reply to the questions put to him, the applicant stated:

“I have nothing to do with drugs. I do not even smoke cigarettes.”

Considering that the applicant was being suspected of involvement in the traffic, purchase and transportation abroad of substances defined in the Opium Act ( Opiumwet ), i.e. offences defined in Articles 2 and 10 of the Opium Act for which an order for detention on remand ( voorlopige hechtenis ) could be given, that the investigation into these offences was not yet completed, that the hearing of witnesses and the confrontation and further questioning of the applicant was necessary, that there existed a serious danger of escape, a danger of removing traces and a danger of hindrance of the investigation, and that no permanent address of the applicant in the Netherlands could be established, at 10 p.m. the deputy public prosecutor ordered the applicant’s detention in police custody ( inverzekeringstelling ) for a maximum of three days. The applicant was provided with a copy of the detention order.

On 3 August 2000, the applicant was questioned by two police officers with the assistance of an interpreter. The police officers informed the applicant that he was being questioned in connection with an investigation into importing and exporting, selling, delivering, providing, transporting, possession and/or fabrication of drugs as defined in the Opium Act, which constituted offences under Articles 2, 3, 10 and 11 of that same Act. After they had informed the applicant that he was not obliged to reply to any questions put to him and why he had been arrested, the applicant gave a statement which, in so far as relevant, reads as follows:

“I understand that I have been arrested in connection with drugs ... As I do not have a fixed abode in Europe, I want to give you the address of my lawyer in England, to which you can send the necessary documents. This address is, Mr J.F., F. solicitors ... England.

I know why I have been arrested, but I do not exactly know what my part therein is. The only thing I do know is that a policeman told me that I find myself in a serious situation. I know that I will have to speak with a lawyer. As to the facts of which I am being suspected I can only say that I have never in my life touched or seen drugs. They only time that I have been in contact with drugs was when I smelled it once in a pub.”

After his statement, as recorded in the formal record, had been read to the applicant, he confirmed the statement and signed the formal record, which was co-signed by the two police officers and the interpreter.

On 4 August 2000 the public prosecutor requested the investigating judge ( rechter-commissaris ) to issue an order for the applicant’s detention on remand ( inbewaringstelling ) as there were serious indications that the applicant was involved in offences against the Opium Act.

On the same day, the applicant – assisted by an interpreter and a lawyer assigned to him – was heard before the investigating judge in proceedings concerning the lawfulness of his detention in police custody and the request for his detention on remand. The investigating judge informed the applicant of the scope of the judicial investigation ( gerechtelijk vooronderzoek ) that had been opened against him and of the public prosecutor’s request for his detention on remand. The investigating judge provided the applicant with copies of the public prosecutor’s request to open a judicial investigation and the request for the applicant’s detention on remand. The applicant stated before the investigating judge:

“I understand from the interpreter’s translation the facts of which I am being suspected. I understand that it concerns XTC and marihuana. I maintain my statement to the police. I first want to know more and to consult my lawyer about it. As long as that has not happened, I invoke my right to remain silent. I have never been involved with or convicted in relation to drugs.”

The applicant’s lawyer stated at this hearing that he objected to the fact that he had been denied access to the documents in the investigation case file on which the suspicions against the applicant were based  He submitted that, in these circumstances, he could not conduct the applicant’s defence in an adequate manner.

Directly after this hearing the investigating judge informed the applicant that his placement in police custody had been lawful and, considering that the applicant was suspected of facts attracting a prison sentence of twelve years or more, ordered that the applicant be detained on remand for a period of ten days. In a separate order issued on 4 August 2000, the investigating judge decided that, in the interests of the investigation, the applicant was not to have any contacts with co-detainees or persons from the outside world – with the exception of inter alia his lawyer – without the prior permission of the investigating judge.

On the same day the investigating judge directed, in accordance with Article 30 of the Code of Criminal Procedure ( Wetboek van Strafvordering – hereafter “CCP”), that, for as long as necessary in the interests of the investigation, certain documents from the investigation file could be withheld from the applicant and his lawyer ( onthouden van processtukken ), and informed the latter accordingly.

By letter of 8 August 2000, the applicant’s lawyer informed the investigating judge that apparently the duty lawyer ( piketadvocaat ) had not been informed on 2 August 2000 of the applicant’s arrest and that the applicant had therefore remained without legal assistance. Consequently, it could not be established from the formal records drawn up by the police, as made available to the lawyer on 4 August 2000, what the applicant was being suspected of, and that, in the absence of a reasonable suspicion of guilt, the applicant’s arrest and detention were to be regarded as unlawful. The lawyer further wrote that, although he knew that no appeal could be filed against the remand order of 4 August 2000, he found this manner of proceeding to be in breach of Articles 5 and 6 of the Convention and the principles of proper proceedings ( beginselen van behoorlijke procesorde ). Having noted that his objections expressed at the hearing of 4 August 2000 had not been recorded in the official record of this hearing, he felt it necessary to put this matter in writing.

On 9 August 2000 the public prosecutor requested the Breda Regional Court ( arrondissementsrechtbank ) to issue an order for the applicant’s further detention on remand ( gevangenhouding ). The Breda Regional Court issued this remand order on the same day.

On 11 August 2000 the applicant’s lawyer filed an appeal against the remand order of 9 August 2000 with the ‘s-Hertogenbosch Court of Appeal ( gerechtshof ).

On the same day, the applicant’s lawyer addressed a further letter to the investigating judge in which he requested an explanation why the formal record “facts and circumstances of the ‘Offside’ investigation” of 3 August 2000 had only been communicated to the lawyer on 8 August 2000 and had not been made available to the defence before the hearing of 4 August 2000. The lawyer further asked the investigating judge why the applicant had not been visited by the duty lawyer after his arrest on 2 August 2000, and had thus been deprived of legal assistance for some time.

On 15 August 2000 the public prosecutor – who had taken notice of the lawyer’s letters of 8 and 11 August 2000 – sent a reply. In this letter, the public prosecutor pointed out, in response to the lawyer’s remarks about documents not having been made available, that on 4 August 2000 the investigating judge had directed, pursuant to Article 30 of the Code of Criminal Procedure, that, in the interests of the investigation, documents from the case file on the investigation should be withheld from the defence. As regards the duty lawyer, the public prosecutor informed the applicant’s lawyer that he had taken this matter up with the police.

The latter replied that, apparently, a staff member responsible for the care of arrested persons ( arrestantenverzorging ) had given the responsible police team the telephone number of the duty lawyer. The team members and the deputy public prosecutor had assumed that this was the fax number they had asked for in order to transmit the police custody order. However, it turned out that the telephone number was the duty lawyer’s private home number and that no fax messages could be sent to it. The public prosecutor considered that this did not constitute intentional mishandling, and that the only remark that could be made was that there had been a failure to verify whether the order for the applicant’s placement in police custody had in fact reached the duty lawyer.

On 31 August 2000 the ‘s-Hertogenbosch Court of Appeal heard the applicant’s appeal of 11 August 2000. The applicant’s lawyer argued, inter alia , that the investigating judge had incorrectly found that the applicant’s detention in police custody was lawful, and had without justification given an order for the applicant’s detention on remand. In particular, the applicant had not been visited by the duty lawyer after his placement in police custody on 2 August 2000 and had only been provided with a vague description of the offences under the Opium Act of which he was suspected. Consequently, in the proceedings held on 4 August 2000, the defence had been unable to assess whether the applicant’s arrest and detention in police custody were based on a reasonable suspicion, and thus lawful. The lawyer further argued that, in its decision of 9 August 2000, the Regional Court had without justification rejected the defence’s argument that, in view of the above elements and the fact that the defence had not had full access to the investigation case file, the public prosecutor’s request for the applicant’s further detention on remand should be declared inadmissible on grounds of a failure to comply with the requirements of Articles 53 et seq. [ Grounds for arrest and placement in police custody, and requirements for a police custody order ] and 67a [Existence of serious indications against the suspect] of the CCP and Article 5 §§ 1 (c), 2 and 4 of the Convention.

In its decision given on the same day, the Court of Appeal rejected the applicant’s appeal, holding:

“... the Court of Appeal agrees with the [impugned] decision and the grounds [for this decision]. Consequently, the appeal must be rejected.

The Court of Appeal considers at the outset that the decision of the investigating judge on the question of the (un)lawfulness of the placement in police custody is not at present eligible for review.

The Court of Appeal further finds that the shortcomings in the procedure having resulted in the order for the detention on remand [of 4 August 2000], as indicated by the lawyer, are not of such a nature and are not so serious that, on that ground, the public prosecution’s request for the prolongation of the detention on remand should be declared inadmissible, or that the detention should be regarded as unlawful.”

No further appeal lay against this decision.

On 28 September 2000 the applicant’s lawyer filed an objection under Article 32 of the CCP (see below) against the withholding of documents in the investigation case file from the defence.

On 9 October 2000 – after having heard the applicant and the public prosecutor, who had no objection to the applicant’s protest – the Breda Regional Court accepted the applicant’s objection as well-founded.

On an unspecified date, the applicant was summoned to appear before the Regional Court on 10 November 2000 in order to stand trial on the charges that had been brought against him. No further information has been submitted about these proceedings.

B. Relevant domestic law and practice

An order for detention on remand ( voorlopige hechtenis ) can be issued in respect of a person suspected of having committed an offence which, according to the law, carries a punishment of imprisonment of four years or more (Article 67 § 1 (a) of the CCP). Detention on remand can only be applied when it appears from the facts or circumstances that the suspicions are serious (Article 67 § 3 CCP).

A (deputy) public prosecutor is competent to order the arrest of a person suspected of having committed a criminal offence in respect of which detention on remand may be ordered (Article 54 of the CCP).

A (deputy) public prosecutor can further order a person’s subsequent detention in police custody ( inverzekeringstelling ), after having seen and heard that person, who may be assisted by a lawyer (Article 57 of the CCP).

An order for detention in police custody can only be issued in respect of punishable offences for which detention on remand may be ordered. A custody order is valid for a maximum of three days and may only be prolonged for a further maximum period of three days (Article 58 of the CCP). A copy of the order must be given to the suspect without delay (Article 59 § 4 of the CCP). No appeal lies against a police custody order.

If a suspect held in police custody has not chosen a lawyer, the prosecution department informs the duty lawyer without delay of the police custody order. This duty lawyer will represent the accused for the duration of the police custody (Article 40 § 2 of the CCP).

Article 59a of the CCP requires that no later than three days and fifteen hours after the arrest, the suspect must be brought before an investigating judge in order to be heard. On that occasion the suspect may request the investigating judge to order his or her release (Article 59a § 4 of the CCP). Where the investigating judge finds the police custody order unlawful, the suspect’s immediate release must be ordered (Article 59a § 5 of the CCP).

In order to prolong the detention of a suspect, the public prosecutor can request the investigating judge to make a remand order ( inbewaringstelling ) under Article 63 of the CCP. Where such a request is made by the public prosecutor and the suspect has no lawyer, the President of the Regional Court assigns a legal aid lawyer ex officio (Article 41 § 1 (a) of the CCP). A remand order given by the investigating judge is valid for a maximum period of ten days (Article 64 § 1 of the CCP).

Although no direct appeal lies against a remand order, a person whose detention on remand has been ordered can, in accordance with Article 69 § 1 of the CCP, apply to the Regional Court for a lifting order ( opheffing voorlopige hechtenis ). Under Article 87 § 2 of the CCP, an appeal against a rejection by the Regional Court of a first request to lift the detention on remand may be lodged with the Court of Appeal ( gerechtshof ).

Upon a request by the public prosecutor, the Regional Court can, after having heard the suspect, order the prolongation ( gevangenhouding )  of the original remand order of the investigating judge (Article 65 of the CCP). The Regional Court’s order for further detention on remand is valid for a maximum period of thirty days (Article 66 of the CCP). An appeal against an order for further detention on remand lies to the Court of Appeal (Article 71 of the CCP).

According to the established case-law of the Supreme Court ( Hoge Raad ), procedural defects occurring in respect of previous orders for detention on remand do not constitute independent grounds for dismissing an application for a subsequent category of detention on remand. The judge must examine for each separate category whether all the conditions are met (see Hoge Raad , 4 March 1975, Nederlandse Jurisprudentie [Netherlands Law Reports – “NJ”] 1975, no. 241, Hoge Raad , 10 November 1981, NJ 1982, no. 45, and Hoge Raad , 7 October 1988, NJ 1989, no. 510). However, in deciding requests under Article 69 of the CCP, a judge may take procedural defects into consideration as a relevant factor (see Hoge Raad , 16 March 1990, NJ 1990, no. 500).

According to Article 30 § 2 of the CCP, the investigating judge or the public prosecutor can, if the interests of the investigation so require, withhold certain case file documents from the suspect. In that case, the suspect will be informed in writing that the documents available to him or her are incomplete. If documents are withheld from a suspect, the latter can file an objection ( bezwaar ), within fourteen days after the notification of the decision, to the court to which the public prosecutor or investigating judge is attached, which court must determine the matter as soon as possible (Article 32 of the CCP).

Pursuant to Article 33 of the CCP, a suspect must be given access to all documents in the case file as soon as the decision to close the preliminary judicial investigation has become final or, where there has been no preliminary judicial investigation, as soon as the decision to pursue the prosecution or the indictment has been served on the suspect.

COMPLAINTS

The applicant complains under Article 5 § 1 (c) and Article 6 § 3 (c) of the Convention that, in breach of Articles 40 and 57 of the Code of Criminal Procedure, he was not provided with the assistance of a lawyer in the period between 2 August 2000, when he was arrested and taken into police custody, and 4 August 2000, when he was brought before the investigating judge.

The applicant further complains under Article 5 § 2 of the Convention that he was not adequately informed of the reasons for his arrest.

The applicant lastly complains under Article 5 § 4 of the Convention that, as he and his lawyer were denied access to the investigation case file, he was unable to present his case in an adequate manner in the proceedings held on 4 August 2000 before the investigating judge on the prosecution’s request for the applicant’s detention on remand.

THE LAW

1. The applicant complains under Article 5 § 1 (c) and Article 6 § 3 (c) of the Convention that he was not provided with the assistance of a lawyer during his detention in police custody between 2 and 4 August 2000.

Article 5 § 1 (c) of the Convention reads 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.”

Article 6 § 3 (c) of the Convention provides:

“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.”

In so far as the applicant relies on Article 5 § 1 (c) of the Convention, the Court finds no indication in the case file that the applicant, after having been arrested and brought before the deputy public prosecutor, asked for legal assistance. Nor did he ask to be assisted by a lawyer when he was heard by two police officers on 3 August 2000. The Court further notes that, when he was heard on 4 August 2000 before the investigating judge in respect of the public prosecutor’s request for the applicant’s detention on remand, the applicant was assisted by an assigned lawyer. On that occasion, neither the applicant nor his lawyer complained that the applicant had not been assigned a legal-aid lawyer during his detention in police custody and that, for this reason, his detention in police custody should be regarded as unlawful. Moreover, it does not appear that the applicant sought to challenge the finding of the investigating judge that his detention in police custody had been lawful, by taking proceedings under Article 69 § 1 of the CCP before the Regional Court for an order lifting his detention on remand.

In these circumstances, the Court is of the opinion that, as regards this complaint, the applicant has failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention. This is not altered by the fact that the applicant later raised the complaint in the subsequent proceedings on the public prosecutor’s request of 9 August 2000 for the applicant’s further detention on remand, by which time the question was no longer eligible for review.

As to the applicant’s complaint that the failure to provide him with a lawyer during his detention in police custody was in violation of his rights under Article 6 § 3 (c) of the Convention, the Court reiterates that Article 6 applies even at the stage of the preliminary investigation into an offence by the police. Thus, Article 6 – especially paragraph 3 – may be relevant before a case is sent for trial if and in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with these provisions. The manner in which Article 6 § 3 (c) is to be applied during the preliminary investigation depends on the special features of the proceedings involved and on the circumstances of the case (see, Imbrioscia v. Switzerland , judgment of 24 November 1993, Series A no. 275, pp. 13 and 14, §§ 36 and 38 and John Murray v. the United Kingdom judgment of 8 February 1996, Reports of Judgments and Decisions , 1996-1, pp. 54-55, § 62).

However, in the instant case there is no indication that the applicant’s right of access to a lawyer during his detention in police custody was restricted by the investigation authorities. Further noting that it does not appear from the case file that the applicant, in the trial proceedings on the charges that have apparently been brought against him, raised a complaint of this sort under Article 6 § 3 (c) of the Convention, the Court is of the opinion that this part of the application must also be rejected for non ‑ exhaustion of domestic remedies, within the meaning of Article 35 § 1 of the Convention.

It follows that this part of the application must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

2. The applicant further complains under Article 5 § 2 of the Convention that he was not adequately informed of the reasons for his arrest. This provision reads as follows:

“2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.”

This provision is an integral part of the scheme of protection afforded by Article 5. By virtue of paragraph 2 any person arrested must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness in accordance with paragraph 4. Whilst this information must be conveyed “promptly”, it need not be related in its entirety by the arresting officer at the very moment of the arrest. Whether the content and promptness of the information conveyed were sufficient is to be assessed in each case according to its special features (see, for instance, H.B. v. Switzerland , no. 26899/95, § 44, 5 April 2001).

The Court notes from the police report on the applicant’s arrest on 2 August 2000 that the arresting officers had informed the applicant why he was being arrested. It further notes that the applicant, when heard shortly after his arrest by the deputy public prosecutor and, on 3 August 2000, when questioned by two police officers with the assistance of an interpreter, was informed of the subject matter of the questioning. Finally, noting the contents of the applicant’s statement made on 2 August 2000 to the deputy public prosecutor and the contents of his statement made on 3 August 2000 to the police, the Court finds no support for the applicant’s contention that, during his detention in police custody, he was unaware of the nature of the suspicions against him. Also taking into account the factual context in which the applicant was arrested, the Court considers that the information furnished to the applicant satisfied the requirements of Article 5 § 2 of the Convention.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3. The applicant lastly complains under Article 5 § 4 of the Convention that the order for his detention on remand was taken by the investigating judge without him having been given access to documents in the case file which were relevant to the question of detention.  He relies in this respect on the Court’s judgment in the case of Lamy v. Belgium (judgment of 30 March 1989, Series A no. 151).

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."

The Court notes that it does not appear that, on the basis of this complaint, the applicant took proceedings under Article 69 § 1 of the CCP before the Regional Court seeking an order lifting his detention on remand.

Again, therefore, the Court is of the opinion that the applicant has failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention, and that this part of the application must be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

S. Dollé J.-P. Costa Registrar President