SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 51197/99 by Siegfried L. SAEZ against the Netherlands

The European Court of Human Rights (Second Section), sitting on 25 May 2004 as a Chamber composed of:

Mr J.-P. Costa , President , Mr A.B. Baka , Mr L. Loucaides , Mr C. Bîrsan , Mr K. Jungwiert , Mr V. Butkevych , Mrs W. Thomassen, judges , and Mr T.L. Early , Deputy Section Registrar ,

Having regard to the above application lodged on 15 September 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant, Siegfried L. Saez, is a Netherlands national, who was born in 1947 and was formerly resident in Schiedam (Netherlands). At the time the application was lodged he was serving a prison sentence in the Extra Security Institution ( Extra Beveiligde Inrichting ) within Vught prison. 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.

In March 1993, by prior arrangement, the applicant supplied a Star 6.35 mm semiautomatic pistol to one Y., a prison guard employed in the detention centre “De Schie” in Rotterdam. Y. had allowed himself to be bribed by an inmate called O., who was serving a fourteen-year sentence for drugs offences. On 30 March 1993 O. and another inmate, L., who was serving an eighteen-year sentence, took two prison guards hostage by holding pistols to their heads. They made their way out of the prison and into a waiting speedboat, made ready by the applicant, with which they made their escape.

On 23 April 1993 the applicant was involved in a shootout in Rotterdam in the course of which a number of persons, including a passer-by, were severely injured.

On 30 December 1993 the applicant was arrested by Rotterdam police. He resisted and one of the policemen was injured in the struggle. The applicant was found to be in possession of a 1922 pattern FN Browning 7.65 mm semiautomatic pistol.

On 27 July 1995 an incident took place on the A16 motorway near Rotterdam in the course of which a man, later believed to be the applicant, fired an UZI sub-machine gun at two policemen.

On 20 March 1996 the applicant was arrested and placed in police custody ( inverzekeringstelling ). He was subsequently placed in pre-trial detention ( voorlopige hechtenis ) and summoned to appear before the Rotterdam Regional Court ( arrondissementsrechtbank ) in order to stand trial on ten charges in connection with the above facts.

On 7 March 1997 the Rotterdam Regional Court convicted the applicant of the first, second, third, fourth, seventh and eighth charges. It acquitted him of the remainder. It sentenced him to seven years' imprisonment.

The applicant appealed to the Court of Appeal ( gerechtshof ) of The Hauge. Having held four hearings, the Court of Appeal gave judgment on 24 June 1998. It quashed the Regional Court's judgment of 7 March 1997, found the applicant guilty of the first, second, third, fourth, seventh, eighth, ninth and tenth charges. It acquitted him of the fifth and sixth charges. It sentenced the applicant to eight years' imprisonment. In an obiter dictum it held that there had been a violation of Article 6 § 1 of the Convention in that the proceedings had taken too long and that, for this reason, it had reduced the applicant's prison sentence by one year to eight instead of nine years' imprisonment.

The applicant lodged an appeal on points of law with the Supreme Court ( Hoge Raad ). On 22 June 1999 the Supreme Court delivered a judgment quashing the Court of Appeal's findings in respect of the fourth charge and the sentence, and dismissing the appeal for the remainder. It remitted the case to the Amsterdam Court of Appeal for a new determination of the fourth charge and the sentence.

Pursuant to Article 75 § 8 of the Code of Criminal Procedure ( Wetboek van Strafvordering – “CCP”), the validity of the applicant's pre-trial detention continued to run for another renewable term of thirty days after the date of the Supreme Court's judgment. However, the public prosecution department allowed it to expire without seeking its renewal.

On 27 July 1999, having noted the expiry of the validity of the applicant's pre-trial detention, the Advocate General to the Amsterdam Court of Appeal, on the basis of Article 66a of the CCP (see below), requested that court to order the applicant to be taken into pre-trial detention ( vordering gevangenneming ).

The Court's file contains a copy of this application, as sent by fax to the applicant. It bears the imprinted date and time “27 JUL. 1999 14:43” as well as the handwritten statements “Under withdrawal of the application faxed on 27-7-99 at 13.09 hours” ( onder intrekking van de op 27-7-99 te 13.09 uur gefaxte vordering ) and “To be heard in chambers 28-7-99 at 14.25 hours” ( Behandeling in Raadkamer 28-7-99 te 14.25 uur ).

The applicant alleges that the Advocate General's application was in fact submitted in the early morning of 27 July 1999, and that the hearing in chambers took place the following day at 2.20 p.m.

At the hearing held on 28 July 1999 the applicant's counsel contended that the applicant had assumed, after 23 July 1999, that he had begun to serve a sentence imposed for convictions unrelated to the present case. However, the Advocate General's application for his taking into pre-trial detention made it clear that this was not the case. Based on the date and time printed on his fax copy of the Advocate General's application, the applicant's counsel argued that the application had in fact been submitted to the Court of Appeal at 11.32 a.m. on 27 July 1999. As the decision on the application could thus not be given within twenty-four hours, the applicant's continued pre-trial detention was consequently illegal. In addition, the only charge before the Court of Appeal was the fourth and the applicant had already spent more than three years and four months in pre-trial detention (a term of detention corresponding to more than five years' imprisonment if the provisions governing provisional release were taken into account); given the total duration of the aggregate sentence imposed by the Rotterdam Regional Court and the Hague Court of Appeal, it could not be said that a sentence longer than five years in respect of the fourth charge alone was likely. Finally, even if the other charge carrying a maximum sentence of more than eight years was taken into account (namely “hostage-taking” - the first primary charge), then in proportion to the total aggregate sentence the term of imprisonment for this crime and that which might be imposed in respect of the fourth charge could not be more than five years. The applicant's counsel thus argued that the applicant had therefore to be released forthwith.

The Court of Appeal's decision is dated 28 July 1999; the date and time printed by a fax machine on the copy contained in the Court's file are 29 July 1999 at 12.56 p.m. The decision, in so far as relevant, reads as follows:

The Advocate General has failed to ensure that the application for prolongation of the pre-trial detention ( gevangenhouding ) would be examined by the Court of Appeal sitting in chambers in a timely manner, namely within 30 days after remittal of the case by the Supreme Court.

Noting the apparent purport of the statutory amendment by which Article 66a has been added to the CCP (namely to offer a remedy to repair failures to respect time ‑ limits in relation to pre-trial detention) the Court of Appeal is of the opinion that this situation must be equated to a situation in which the Advocate General has failed to submit in a timely manner the application for extension of the order for the suspect's pre-trial detention.

As appears from the legislative history ( wetsgeschiedenis ), the term indicated by the words “without delay” ( ten spoedigste ) in Article 66a § 1 starts to run from the moment on which the public prosecutor / Advocate General notices the expiry of the [validity of the pre-trial detention]. It has not been established in chambers that the Advocate General has not filed the present application without delay after the moment meant.

In the criminal proceedings, the applicant has been charged with what has been set out in the copy attached to this decision.

The Court of Appeal considers that the grounds and grave suspicions [against the applicant] that have led to the application of pre-trial detention in respect of the suspect remain pertinent, whereas the situation foreseen in Article 67a § 3 of the CCP does not arise. The length of the pre-trial detention will not, by the duration of the requested pre-trial detention, exceed the unconditional prison sentence imposed by the Regional Court and it is also at the time being not likely that it will exceed the prison sentence to be imposed in case of a conviction on appeal.

The suspect's counsel has objected to the application. He has argued ... that the application must be rejected because:

1. the 24 hours' delay within the meaning of Article 66a § 4 of the CCP has been exceeded ...

The Court of Appeal rejects these objections as follows:

ad 1. It is established that the said 24-hour time-limit has been exceeded by a few hours. However, the Court of Appeal is of the opinion that this excess does not entail that the application cannot be granted. ...

On grounds of the above and in view of Article 65, 66, 66a, 67 and 75 of the CCP and Articles 282a and 287 of the Criminal Code ( Wetboek van Strafrecht ), the Court of Appeal shall grant the request of the Advocate General and thus order the taking into pre-trial detention of the suspect ( gevangenneming ) ... for a period of sixty days.”

B. Relevant domestic law

Article 133 of the Code of Criminal Procedure ( Wetboek van Strafvordering – “CCP”) defines pre-trial detention ( voorlopige hechtenis ) as deprivation of liberty pursuant to an order for detention on remand ( inbewaringstelling ), a warrant for the taking into pre-trial detention ( gevangenneming ) or an order for further detention on remand ( gevangenhouding ). The statutory rules governing pre-trial detention are set out in Articles 63 to 88 of the CCP.

An order for pre-trial detention can only be issued against persons suspected of an offence attracting a punishment of four years or more or of a number of other specific criminal acts (Article 67 § 1 of the CCP). It can further be issued when the suspect has no permanent address in the Netherlands and the suspicions concern an offence within the jurisdiction of the Regional Courts and which, according to the law, is punishable by imprisonment (Article 67 § 2 of the CCP). Pre-trial detention can only be applied when it appears from the facts or circumstances that there are grave suspicions against the suspect (Article 67 § 3 of the CCP). Pre-trial detention can only be applied where there is a serious risk that the suspect will abscond or in case of a serious reason of public safety ( gewichtige reden van maatschappelijke veiligheid ) necessitating a deprivation of liberty without delay (Article 67a §§ 1 and 2 of the CCP). Orders for pre-trial detention are immediately enforceable (Article 73 § 1 of the CCP).

Pre-trial detention in the form of an order for detention on remand ( inbewaringstelling ) may be issued by the investigating judge – upon a request of the public prosecutor and in respect of a suspect who is already being held in police custody – for a maximum duration of 10 days (Articles 63 and 64 of the CCP).

A subsequent prolongation of pre ‑ trial detention may be ordered by the Regional Court, after having heard the person concerned, in the form of an order for further detention on remand ( gevangenhouding ) for a maximum period of 30 days. An order for further detention on remand can be prolonged twice by the Regional Court, each time for a maximum of 30 days (Article 65 § 1 and Article 66 §§ 1 and 3 of the CCP). Consequently, pre ‑ trial detention may not exceed 100 days until a first trial court hearing.

Once trial proceedings have started, the Regional Court can, for instance in the case of a suspect who is not being held in pre-trial detention, order the suspect to be taken into pre-trail detention ( gevangenneming ) (Article 65 § 2 of the CCP).

A pre-trial detention order issued by the Regional Court remains in force for 60 days after the final judgment ( einduitspraak ) at that instance has been given (Article 66 § 2 of the CCP). Article 138 of the CCP defines final judgments as:

“... judgments suspending prosecution, or containing a declaration of no jurisdiction, inadmissibility or invalidity of the summons, which are pronounced on conclusion of the entire examination of the case at trial.”

Where no appeal is filed against the final judgment of a first-instance trial court in which a prison sentence has been imposed, the legal basis for the deprivation of liberty shifts, after fourteen days (the time-limit for filing an appeal under Article 408 of the CCP) or sooner, if both parties have waived this remedy, from the pre-trail detention order to the judgment having obtained the force of res iudicata .

Article 75 § 1 of the CCP, which governs pre-trial detention in case an appeal has been filed against a first-instance judgment, reads:

“After notice of appeal against the final judgment has been filed, orders to take into pre-trial detention ( gevangenneming ) and orders for further detention on remand ( gevangenhouding ) or extensions thereof shall be given by the court of highest instance hearing the facts of the case. Articles 65 § 2, 66 § 2 and 67 to 69 apply to these orders by analogy.”

The public prosecutor may file, within 60 days after the date of the final judgment of the first-instance court, a request for the prolongation of the pre-trial detention order by 60 days with the appeal court, which will determine that request. Pre-trial detention between a final judgment of a first-instance court against which an appeal has been filed, and the first hearing on that appeal, is limited to a maximum of 180 days (Article 75 § 3 of the CCP).

Once the examination at trial on appeal has started, an order for pre-trial detention stays in force until the final judgment on appeal becomes res iudicata , thus including the duration of possible subsequent cassation proceedings before the Supreme Court ( Hoge Raad ) (Article 75 § 5 of the CCP). If, however, the total duration of the detention on remand becomes equal to the prison sentence imposed, the highest competent trial court shall lift the remand order (Article 75 § 6 of the CCP).

In case the Supreme Court, following cassation proceedings, quashes the judgment of the appeal trial court and remits the case to it, the validity of the running pre-trial detention is limited to 30 days (Article 75 § 8 of the CCP). If the public prosecutor considers a continuation of the detention on remand beyond this period to be desirable, a prolongation request must be made to the appeal trial court to which the case has been remitted. If that request is granted by the appeal trial court, the ensuing detention order will remain in force until that court's final judgment becomes res iudicata (with the exception of the situation foreseen in Article 75 § 6 of the CCP above).

In case the above 30 days' time-limit under Article 75 § 8 has expired without the public prosecutor having applied for an extension, Article 66a of the CCP provides for a reparatory measure. This provision, in so far as relevant, reads:

“1. If the validity of an order for keeping or taking [a suspect] in pre-trial detention ( gevangenhouding of gevangenneming ) has expired, the public prosecutor may, before the examination at trial of the case starts, also apply without delay for the taking into pre-trial detention ( gevangenneming ) of the suspect who has not yet been released, if

(a) the prosecutor has failed to apply for an extension [of the suspect's pre-trial detention] in a timely manner;

(b) the conditions for applying pre-trial detention still exist; and

(c) the order for pre-trial detention was issued for a suspicion of an offence ( misdrijf ) which, according to the law, carries a prison sentence of eight years or more.  ...

4. The Regional Court shall decide on the application within twenty-four hours after its submission. The suspect shall not be released pending the decision on the application for him to be taken into pre-trial detention.

5. If no summons has yet been issued, the provisions of the second to fourth paragraphs shall be applied by the court sitting in chambers ( raadkamer ).

6. The time-limits referred to in Article 75 § 3 ... shall apply by analogy.”

In a ruling handed down on 27 May 1999, the Court of Appeal of The Hague sitting in chambers held:

“As appears from the history of the enactment of Article 66a of the CCP, it has been the legislator's intention to declare this provision applicable to proceedings on appeal, so also after remittal by the Supreme Court.

The Procurator General has failed to ensure that the application for extension of the pre-trial detention ( gevangenhouding ) was examined by the Court of Appeal sitting in chambers in a timely manner, namely within 30 days after remittal of the case by the Supreme Court.

Noting the apparent purport of the statutory amendment by which Article 66a has been added to the CCP (namely to offer a remedy to repair failures to respect time ‑ limits in relation to pre-trial detention) the Court of Appeal is of the opinion that this situation must be equated to a situation in which the Procurator General has failed to submit in a timely manner the application for extension of the order for the suspect's pre-trial detention.”

This ruling was published in the Netherlands Law Reports ( Nederlandse Jurisprudentie ) 1999, no. 606.

COMPLAINTS

The applicant complained under Article 5 §§ 1 and 3 of the Convention that the order for his pre-trial detention issued by the Amsterdam Court of Appeal on 28 July 1999 lacked an adequate statutory basis, that it was issued out of time and therefore ipso facto unlawfully and that the duration of his detention on remand had by that time become excessive.

THE LAW

The applicant complained that his pre-trial detention on the basis of the pre-trial detention order of 28 July 1999 was in violation of his rights under Article 5 §§ 1 and 3 of the Convention, which in so far as relevant, provide:

“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:

(a) the lawful detention of a person after conviction by a competent court; ...

(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; ...

3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. ...”

The Court recalls its constant case-law that, for the purposes of the Convention, detention while an appeal against a conviction by a first-instance court is pending is to be considered as detention "after conviction" within the meaning of Article 5 § 1 (a) of the Convention, even if the detention continues to be considered as detention on remand under domestic law (see, Wemhoff v. Germany , judgment of 27 June 1968, Series A no. 7, pp. 23-24, § 9; B. v. Austria , judgement of 28 March 1990, Series A no. 175, pp. 14-16, §§ 35-40; and Hristov v. Bulgaria (dec.), no. 35436/97, 19 September 2000).

Since the Regional Court, in its judgment of 7 March 1997, convicted the applicant and sentenced him to seven years' imprisonment, the applicant's detention between 7 March 1997 is to be regarded as falling within the scope of Article 5 § 1 (a) of the Convention as detention “after conviction” and no longer as detention falling within the scope of Article 5 §§ 1 (c) and 3 of the Convention. The Court has found no indication that the applicant's detention was at any moment unlawful or ordered otherwise than “in accordance with a procedure prescribed by law” within the meaning of Article 5 § 1 of the Convention. In this respect, the Court has found nothing capable of demonstrating that the applicant's conviction had no basis in domestic law or was arbitrary.

It follows that the application must 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.

T.L. Early J.-P. Costa              Deputy Registrar President