SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 9298/02 by William Brian CLOSE 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 25 February 2002,

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, William Brian Close, is an Irish national, who was born in 1952 and, at the time of the introduction of the application, was detained in the Netherlands. He was 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 parties, may be summarised as follows.

The applicant was arrested and detained in police custody ( inverzekeringstelling ) on 31 March 2000 on suspicion of involvement in preparatory acts for, inter alia , the importation of cocaine, participation in a criminal organisation and involvement in the intentional and premeditated infliction of grievous bodily harm.

The criminal proceedings against the applicant formed part of a criminal investigation into cocaine imports via Schiphol airport, with the possible involvement of employees of companies based at the airport.

On 3 April 2000, considering, inter alia , that there were serious suspicions ( ernstige bezwaren ) against the applicant and that a serious reason of public safety ( gewichtige reden van maatschappelijke veiligheid ) required the immediate deprivation of the applicant's liberty as the suspicions against him concerned offences attracting a prison sentence of twelve years or more, that the legal order had been seriously shaken by these offences, and that there was a serious risk that the applicant would commit a further offence attracting a prison sentence of six years or more, and given the suspicion that he was involved to a considerable extent in drug trafficking, the investigating judge ( rechter-commissaris ) of the Haarlem Regional Court ( arrondissementsrechtbank ) ordered the applicant's detention on remand ( inbewaringstelling ). His further detention on remand ( gevangenhouding ) was subsequently ordered by the Haarlem Regional Court.

By summons of 22 June 2000, the applicant was ordered to appear on 4 July 2000 before the Haarlem Regional Court to stand trial on a number of charges, including narcotics offences.

In the course of a hearing held on 11 January 2001, the applicant challenged ( wraking ) the three Regional Court judges dealing with his case as, in separate proceedings, they had already convicted three of his co ‑ accused. After having deliberated, three other judges of the Regional Court rejected the challenge. The Regional Court, in its original composition, then resumed its examination of the applicant's case. A further hearing was held on 15 January 2001.

In its judgment of 29 January 2001, the Regional Court convicted the applicant of offences under the Opium Act ( Opiumwet ) and participation in a criminal organisation, and sentenced him to seven years' imprisonment. The applicant appealed to the Amsterdam Court of Appeal ( gerechtshof ).

On 17 September 2001, following hearings held on 25 and 29 June and 13 September 2001, the Court of Appeal quashed the Regional Court's judgment, accepting the grounds of nullity submitted by the defence.

The Court of Appeal noted that, in the Regional Court's judgments of 6 November 2000 in the cases of the three co-accused, it had held that they had participated in a criminal organisation in which the roles had been divided. It specified those roles, including that of the applicant, who was described as follows:

”Brian Close maintained the contacts abroad, whilst also providing the necessary financial means.”

The Court of Appeal considered that, in so doing, the Regional Court had also made a finding as to the applicant's role and involvement and that, therefore, the applicant's fear that the Regional Court was not impartial could be regarded as being objectively justified. Consequently, it referred the applicant's case back to the Haarlem Regional Court for a full retrial.

The Court of Appeal rejected the applicant's argument that, in the absence of any specific statutory provision dealing with detention on remand in a situation where a trial court of appeal remits a case to the first instance court for a retrial, he should be released from detention as its continuation lacked any legal basis. On this point, the Court of Appeal held:

“The court is of the opinion that detention on remand ( voorlopige hechtenis ) – given the system of the law – continues to run, also in cases like the present one, where the decision is not explicitly provided for in a statutory provision. The court further finds that the suspicion, the presumptions and grounds which led to the issue of the order for detention on remand are still pertinent. The court finds no grounds for suspending the detention on remand.”

It further ordered the Regional Court to start its examination of the applicant's case within thirty days, and prolonged the validity of the order for the applicant's detention on remand by thirty days as from 17 September 2001.

On 8 October 2001, the Haarlem Regional Court commenced its examination of the applicant's case. Both the applicant and his lawyer were present at this hearing. The Regional Court was informed by the prosecution that the case file had not yet been transmitted to the court in its entirety. It rejected the applicant's argument that, in the absence of any legal basis for his detention on remand, he should be immediately released.

The Regional Court held:

“Noting the judgment of 17 September 2001 of the Amsterdam Court of Appeal in which the request for immediate release has been rejected and in which it has been decided to prolong the detention on remand by 30 days until 17 October 2001, the Regional Court considers that there is a legal basis for the detention on remand and there are, therefore, no reasons to reach a different finding now.”

As regards the applicant's request to lift ( opheffing ) or to suspend ( schorsing ) his detention on remand, the Regional Court held that, since it was not yet in possession of the complete case file, it could not take a well ‑ considered decision on this request. The Regional Court ordered the prosecution to ensure that it would have the entire case file at its disposal by 10 October 2001, and adjourned its further examination of the case until 15 October 2001.

On 15 October 2001, although the applicant had been brought to the court building in order to attend the hearing scheduled before the Regional Court, he was taken back to the remand centre before the hearing had started. At that hearing, which was attended by the applicant's lawyer, the Regional Court rejected a further request by the defence to lift or to suspend the applicant's detention on remand, holding that the order of the Court of Appeal of 17 September 2001 was still valid. It adjourned its further examination until 16 October 2001.

On 16 October 2001, the President of the Regional Court recalled that, on 15 October 2001, the applicant's lawyer had argued that it was of great importance that the applicant be present at the court hearing in order to be heard on his request to lift or to suspend his pre-trial detention. The President further stated that he had been informed that the applicant did not now wish to appear at the hearing. The applicant's lawyer submitted that the applicant had not been summoned for the hearing and, in so far as there would have been a summons to appear on 16 October 2001, the hearing was void.

The Regional Court held on this point that, as the applicant was still being held in detention on remand pending trial, a summons for the examination of a request to lift or suspend pre-trial detention was not subject to time-limits and that the notification made at the hearing of 15 October 2001 that the hearing would be adjourned until the next day was thus sufficient.

The Regional Court further stated that it would not examine the substance of the case, but only the requests made by the defence to hear certain witnesses and the applicant's request to lift or to suspend his pre ‑ trial detention. The applicant's lawyer informed the court that, in the applicant's absence, he did not wish to present any arguments on these matters.

After having deliberated, the Regional Court rejected the applicant's request to lift or to suspend his pre-trial detention, holding that the grounds for the applicant's pre-trial detention remained wholly pertinent, and that there were no grounds for ordering a suspension thereof.

On 17 October 2001, the applicant filed an appeal with the Amsterdam Court of Appeal against the decisions of the Regional Court of 15 and 16 October 2001. A hearing on this appeal was held before the Court of Appeal on 21 December 2001.

Also on 21 December 2001, the Regional Court pronounced its judgment in the applicant's case. It convicted the applicant of narcotics offences and participation in a criminal organisation, and sentenced him to six years' imprisonment, with deduction of the time spent in pre-trial detention. At the time of introduction of the application, the applicant's appeal against this judgment was still pending before the Amsterdam Court of Appeal.

On 24 December 2001, the Amsterdam Court of Appeal received a request to lift or to suspend the applicant's pre-trial detention.

On 4 January 2002, the Amsterdam Court of Appeal declared the applicant's appeal of 17 October 2001 inadmissible, holding:

“Having regard to Article 87 § 2 of the Code of Criminal Procedure ( Wetboek van Strafvordering ), the court finds that the appeal of the accused is inadmissible, as a previous request for release from pre-trial detention has already been rejected.

It further finds that the appeal filed by the accused against the rejection of the request for suspension of pre-trial detention must be declared inadmissible, since an appeal against that decision – having regard to Article 406 § 2 of the Code of Criminal Procedure – can only be admitted simultaneously with the appeal lodged against the final judgment .”

On 9 January 2002, the Court of Appeal rejected the applicant's request of 24 December 2001 to lift his pre-trial detention, holding that the grounds for his pre-trial detention were still pertinent. It also rejected the applicant's request to suspend his pre-trial detention, holding that the weighty reasons of public safety, referred to in the order for the applicant's detention on remand and which still constituted grounds for a continuation thereof, outweighed the applicant's interests in a suspension of his pre-trial detention.

B. Relevant domestic law and practice

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 specified criminal acts (Article 67 § 1 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 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 CCP).

The circumstances in which an order for pre ‑ trial detention may be issued are set out in Article 67a of the CCP. This provision reads:

“1. An order based on Article 67 can only be issued:

a. if it is apparent from particular behaviour displayed by the suspect, or from particular circumstances concerning him personally, that there is a serious danger of absconding;

b. if it is apparent from particular circumstances that there is a serious reason of public safety requiring the immediate deprivation of liberty.

2. For the application of the preceding paragraph, only the following can be considered as a serious reason of public safety:

1 o . if it concerns suspicion of commission of an act which, according to the law, carries a punishment of imprisonment of twelve years or more and the legal order has been seriously shaken by that fact;

2 o . if there is a serious risk the suspect will commit an offence which, according to the law, carries a prison sentence of six years or more or whereby the security of the State or the health or safety of persons may be endangered, or give rise to a general danger to goods;

3 o . if it concerns suspicion of one of the offences defined in Articles 310, 311, 321, 322, 326, 326a, 416 or 417bis of the Criminal Code, whereas less than five years have passed since the day on which, on account of one of these offences, the suspect has been irrevocably sentenced to a punishment or measure entailing deprivation of liberty, a measure entailing restriction of liberty or community service, and there is further a serious risk that the suspect will again commit one of those offences;

4 o . if pre-trial detention is reasonably necessary for discovering the truth otherwise than through statements of the suspect.

3. An order for pre-trial detention shall not be issued if there are serious prospects that, in case of a conviction, no irrevocable custodial sentence or a measure entailing deprivation of liberty will be imposed on the suspect, or that he, by the enforcement of the order, would be deprived of his liberty for a longer period than the duration of the custodial sentence or measure.”

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).

Under Article 65 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 ).

Article 66 §§ 1 and 2 of the CCP, in so far as relevant, provides:

“1. An order for further detention on remand ... remains in force for a period to be defined by the Regional Court of maximum thirty days, which period starts on the moment of execution of the order.

2. ... when the examination at trial has commenced within the period defined under the first paragraph, the order [for further detention on remand] remains in force until sixty days after the day of the final judgment ( einduitspraak ) have elapsed.”

In case the examination at trial has not commenced within the thirty days' validity of an order for further detention on remand, the Regional Court can prolong it twice, each time for a maximum of thirty days (Article 66 § 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 case of a suspect who is not being held in pre-trial detention, order the suspect to be taken into pre-trial detention ( gevangenneming ) (Article 65 § 2 of the CCP).

A pre-trial detention order issued by the Regional Court remains in force until 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.”

For the purposes of limiting the application and duration of pre-trial detention, Article 282 of the CCP regulates the duration of suspensions of trial proceedings. This provision reads:

“1. If the defendant is being held in pre-trial detention, the following paragraphs shall apply [in relation to suspensions of trial proceedings].

2. If the Regional Court suspends the examination in court ( onderzoek op de terechtzitting ) for a specific period, the period of suspension shall as a rule not exceed one month. However, if there are compelling grounds, it may set a longer period but in no case longer than three months.

3. If the Regional Court suspends examination in court sine die , it shall determine by analogous application of the second paragraph a maximum period within which the examination in court must be resumed.

4. If the defendant is being held in pre-trial detention, pursuant to an order to take into pre-trial detention ( gevangenneming ) or an order for further detention on remand ( gevangenhouding ), the validity of which already having been prolonged twice, the public prosecutor may apply for a suspension of the examination in court provided he has notified the defendant of his intention to do so when the latter was summoned.”

According to the Supreme Court's case-law, a decision to refer to another court, such as from the Court of Appeal to the Regional Court, or from a single-judge Chamber ( politierechter ) in the Regional Court to the full bench division of the Regional Court, is not a final judgment within the meaning of Article 138 of the CCP (see, Hoge Raad , 23 November 1976, Nederlandse Jurisprudentie – Netherlands Law Reports (“NJ”) 1977, no. 153, and Hoge Raad , 29 April 1986, NJ 1987, no. 75).

Article 369 § 2 of the CCP, which regulates referral from a single-judge Chamber in the Regional Court to the full bench of the Regional Court, does not contain any specific rules on pre-trial detention. The power of a single ‑ judge to issue pre-trial detention orders is, like the power of the full bench of the Regional Court, based on Article 65 of the CCP. Article 423 § 2 of the CCP, which regulates remittal from the Court of Appeal to the Regional Court, also does not contain any specific rules on pre-trial detention.

This situation was examined by the Supreme Court in a judgment handed down on 17 January 1992 (NJ 1992, no. 317) in a case in which the lawfulness was challenged of pre-trial detention following a referral from a single-judge Chamber to the full bench of the Regional Court. The Supreme Court held:

“The ground for appeal ... argues that Article 277a [CCP] [Replaced by the present Article 282 CCP] is not applicable to the referral under Article 376 [§ 2 CCP] [Replaced by the present Article 369 § 2 CCP] and that the order to take into pre-trial detention issued by the single-judge Chamber pursuant to Article 66 § 2 [CCP] (therefore) lapsed in principle thirty days [At that time the time-limit set out in Article 66 § 2 was thirty days. A subsequent amendment of this provision changed this time-limit to sixty days] after the date on which the full bench division of the Regional Court gave its final judgment.

The ground of appeal fails. As appears from the parliamentary history of the Act of 26 October 1973 ... revising the provisions of the Code of Criminal Procedure concerning the application of pre-trial detention ... the aim of the Act is to limit the use and duration of pre-trial detention as much as possible and to tighten up judicial scrutiny of extended pre-trial detention by making the requirement of an extension order, on each occasion for a maximum period of thirty days, also applicable to the stage in which the case has been brought before the court, particularly in cases where the examination at trial is suspended or pending a decision from a higher court. In the past, this requirement did not apply once the case was before the court.

The law does not provide for cases such as the present one, in which the proceedings were interrupted not by a suspension of the examination at trial but by a referral, pursuant to Article 376 § 2 [CCP], even though in such cases the need to tighten up judicial scrutiny of extended pre-trial detention is more urgent than in the case of suspension, taking into account the fact that a single-judge Chamber that issues an order to take in pre-trial detention and refers the case to the full bench division has – unlike a judge who suspends the examination at trial – no control over the date of the following hearing.

Since there are no indications to the contrary in its parliamentary history, the absence of a provision in the Act for cases such as the present one must be regarded as a deficiency. The purport of the Act, viewed also in the light of the guarantee contained in Article 5 of the [Convention], requires that the courts remedy this deficiency, with due respect for the system enshrined in the legislation. Bearing this in mind, the appeal court was right – contrary to the arguments of the appellant – to follow the provisions of Article 277a [CCP].

The above considerations are not affected by the fact that the proceedings in the case after the referral pursuant to Article 376 § 2 were a continuation of the hearing begun before the single-judge Chamber, to the extent that the case was brought before the full bench division on the basis of the existing indictment (Article 376 § 3), and the deliberations were partly based on the examination at trial before the single ‑ judge Chamber (Article 376 § 4).  Contrary to what is argued in ... the appeal, it does not follow from this that the hearing of the case before the single-judge Chamber and the full bench division must be considered as 'a single hearing before the District Court to which both belong'.”

This case-law was applied by the Amsterdam Court of Appeal in a ruling of 25 September 1997 (NJ 1998, no. 77) in which it held:

“The Supreme Court's law – also cited by counsel for the defence – states that, in a situation like the present one which concerns a deficiency in the law, the provisions of Article 277a [CCP] must be followed. Following that Article is of particular relevance in connection with the need for judicial control on the extended application of pre-trial detention. The Supreme Court has not indicated explicitly whether that following also applies to the second paragraph [of Article 277a] [Which provision corresponds to the present Article 282 § 2 of the CCP].

In the opinion of the court there is no ground for excluding the second paragraph of Article 277a from the indicated [ mutatis mutandis application of Article 277a] in a case like the present one ...”

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-trial detention order to the judgment having obtained the force of res iudicata .

Article 75 § 1 of the CCP 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 order for detention on remand is limited to 30 days (Article 75 § 8 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 trial appeal 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 CCP above).

Article 69 of the CCP, in so far as relevant, reads:

“1. An order for pre-trial detention ( voorlopige hechtenis ) may be lifted by the Regional Court. It may do so of its own motion or upon the request of the accused, or – in so far as it concerns an order for ... further detention on remand ( gevangenhouding ) – upon a proposal from the investigating judge or a request by the public prosecutor.

2. The accused who requests the lifting of an order for detention on remand for the first time shall, unless the Regional Court immediately grants it, be summoned to be heard...”

Article 71 of the Code of Criminal Procedure, in so far as relevant, states:

“1. Within a maximum of three days after its execution, the accused may file an appeal with the Court of Appeal against a decision of the Regional Court ordering further detention on remand ( gevangenhouding ) ...

2. Within the same time-limit, the accused may file an appeal against an extension of an order for further detention on remand, but only if no appeal has been filed by him against the order for further detention on remand or against a previous prolongation order ...

3. The Court of Appeal takes its decision as soon as possible. The accused will be summoned in order to be heard.”

Article 87 §§ 2 and 3 of the CCP, in so far as relevant, provides:

“2. The accused, who has requested for the first time to suspend ( schorsing ) or to lift ( opheffing ) an order for pre-trial detention ( voorlopige hechtenis ), may file an appeal with the Court of Appeal against a negative decision on that request. The accused, who has filed an appeal against a negative decision on a request for suspension, cannot subsequently file an appeal against a negative decision on a request for release from pre ‑ trial detention. The accused, who has filed an appeal against a negative decision on a request for release from pre-trial detention, cannot subsequently file an appeal against a negative decision on a request for suspension of pre-trial detention.

3. The appeal shall be determined as soon as possible.”

Article 406 of the CCP reads:

“1. Appeals against judgments which are not final ( einduitspraken ) can only be admitted simultaneously with the appeal lodged against the final judgment.

2. The first paragraph does not apply where an appeal is filed against ... a rejection of a request to lift further detention on remand ( opheffing van het bevel tot gevangenhouding ).”

COMPLAINTS

The applicant complained that his detention between 17 September and 21 December 2001 was in violation of Article 5 § 1 of the Convention, in that there is no specific statutory provision in domestic law dealing with pre-trial detention when a case is remitted to the first instance trial court. The applicant argued that, in these circumstances, his detention had no legal basis in domestic law and was thus not “in accordance with a procedure prescribed by law”, as required by Article 5 § 1 of the Convention.

The applicant further complained that the manner in which the proceedings on his requests for release from or a suspension of his pre-trial detention were conducted before the Regional Court on 8, 15 and 16 October 2001 fell short of the requirements of a fair and proper procedure under Article 5 §§ 1 and 4 of the Convention. On this point, the applicant submits that on 8 October 2001 the Regional Court did have the entire case file at its disposal, that on 15 October 2001 he was brought back to the remand centre before the hearing in his case had started, and that on 16 October 2001 he was not present at the court hearing as he had not been summoned in accordance with Article 319 § 2 of the CCP, whereas his lawyer, during the hearings held on 15 and 16 October 2001, had emphasised the importance of the applicant's presence at those hearings. The applicant considers that, in these circumstances, his continued detention was arbitrary.

The applicant finally complains that the time which elapsed between the filing of his appeal against the decisions taken on 15 and 16 October 2001, and the hearing of this appeal held on 21 December 2001, breached the requirement of “speed”, laid down in Article 5 § 4 of the Convention.

THE LAW

The applicant complains under Article 5 § 1 of the Convention that his detention between 17 September and 21 December 2001 was in violation of Article 5 § 1 of the Convention for lack of a legal basis in domestic law. He further complains that the proceedings on his requests for release from or a suspension of his pre-trial detention, as conducted before the Regional Court on 15 and 16 October 2001, fell short of the requirements of a fair and proper procedure under Article 5 §§ 1 and 4 of the Convention.

Article 5 §§ 1 and 4 of the Convention, in so far as relevant, reads:

“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; ...

4. 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 Government submitted that, in its decision of 17 September 2001 and in accordance with Article 75 § 1 of the CCP, the Amsterdam Court of Appeal extended the order for the applicant's pre-trial detention by thirty days. In the light of the above-cited Supreme Court's judgment of 17 January 1992 (NJ 1992, no. 317) and the principles in the Court's case-law under Article 5, as stated in its judgment in the case of Laumont v. France (no. 43626/98, §§ 43-45, ECHR 2001-XI), the Government were of the opinion that this order did in fact have a legal basis in domestic law as required by Article 5 of the Convention.

The Government further submitted that on 8 October 2001, within the valid 30 day term of this extension order, the fresh hearing of the applicant's case took place before the Haarlem District Court and that, pursuant to Article 66 § 2 of the CCP, the order of 16 October 2001 extending the applicant's pre-trial detention remained in force until sixty days after the Regional Court's final judgment was handed down on 21 December 2001. The Government therefore concluded that the applicant's pre-trial detention between 17 September and 21 December 2001 was “in accordance with a procedure prescribed by law”, as required by Article 5 § 1 of the Convention.

The applicant submitted that it is clear from the facts that the Netherlands Code of Criminal Procedure does not contain any rules on the continuation or termination of pre-trial detention where the Court of Appeal remits a case to the Regional Court. As regards the Supreme Court's case-law invoked by the Government, the applicant argued that the situation examined by the Supreme Court in its ruling of 17 January 1992 cannot be compared to the situation in his case which differs on three points from the former case. In the case examined by the Supreme Court, the single-judge Chamber issued an order to take the suspect into pre-trial detention during the examination at trial whereas, in the applicant's case, the Court of Appeal expressed an opinion on the applicant's pre-trial detention when it gave judgment on 17 September 2001. Furthermore, the applicant's case did not concern a first order for pre ‑ trial detention but a decision to prolong pre-trial detention. Lastly, the case examined by the Supreme Court concerned a referral from a single ‑ judge Chamber in the Regional Court to a full bench division of the Regional Court, thus remaining within a first-instance stage of the proceedings, whereas in the applicant's case it concerned a remittal from the Court of Appeal to the Regional Court.

The applicant further argued that it would be erroneous to apply the above-cited case-law of the Supreme Court to his case as it follows from the second sentence of Article 75 § 1 of the CCP that, on appeal, Article 65 § 2 and Article 66 § 2 of the CCP have been declared applicable mutatis mutandis , but not Article 65 § 1 of the CCP. Since Article 65 § 2 and Article 66 § 2 did not apply to the applicant's pre-trial detention after remittal, it would be incorrect to equate the applicant's situation with the situation examined in the Supreme Court's judgment of 17 January 1992.

The applicant also submitted that the Government based their argument on a judgment given in 1992 which did not relate to a similar situation to his case, and that the Code of Criminal Procedure has not been supplemented since 1992 in order to remedy the deficiency noted by the Supreme Court in its judgment of 17 January 1992. Qualifying as cautiously formulated, the Government's position that it must be assumed on the basis of the 1992 judgment that the order for renewal of his pre-trial detention was lawful, the applicant argued that the legal basis relied on by the Government was far from being sufficiently accessible and precise.

The Court notes at the outset that, in its judgment of 17 September 2001, because of the nullity of the first-instance trial proceedings, the Court of Appeal quashed the initial judgment of the Regional Court of 29 January 2001 in which it had convicted the applicant and imposed a prison sentence, and remitted the case to the Regional Court for a complete re-trial. It follows that, for the purposes of Article 5 § 1 of the Convention, the applicant's detention between 17 September and 21 December 2001 is to be regarded as falling within the scope of Article 5 § 1 (c) of the Convention (see Kudła v. Poland [GC], no. 30210/96, § 104, ECHR 2000-XI, and Imre v. Hungary , no. 53129/99, § 37, 2 December 2003).

The terms “lawful” and “in accordance with a procedure prescribed by law” used in Article 5 § 1 of the Convention essentially refer back to national law and state the obligation to conform to the substantive and procedural rules thereof. The Convention requires, in addition, that any deprivation of liberty should be in conformity with the purpose of Article 5, which is to prevent persons from being deprived of their liberty in an arbitrary fashion (see, Erkalo v. the Netherlands , judgment of 2 September 1998, Reports of Judgments and Decisions 1998-VI, p. 2477, § 52).

Furthermore, it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law. However, since under Article 5 § 1 failure to comply with domestic law entails a breach of the Convention, it follows that the Court can and should exercise a certain power to review whether this law has been complied with. A period of detention will in principle be lawful if it is carried out pursuant to a court order (see, Douiyeb v. the Netherlands [GC], no. 31464/96, §§ 44-45, 4 August 1999). A subsequent finding that the court erred under domestic law in making the order will not necessarily retrospectively affect the validity of the intervening period of detention. For this reason, the Convention organs have consistently refused to uphold Article 5 complaints from persons convicted of criminal offences who complain that their convictions or sentences were found by the appellate courts to have been based on errors of fact or law (see, Benham v. the United Kingdom , judgment of 10 June 1996, Reports 1996-III, p. 753, §§ 41-42).

Given the importance of personal liberty, it is further essential that the applicable national law should meet the standard of “lawfulness” set by the Convention, which requires that all law, whether written or unwritten, be sufficiently precise to allow the citizen – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see, Steel and Others v. the United Kingdom , judgment of 23 September 1998, Reports 1998-VII, p. 2735, § 54).

In the instant case the Court must examine whether the applicant's pre ‑ trial detention between 17 September 2001, when the Court of Appeal remitted his case to the Regional Court, setting a 30 day time-limit both for the proceedings and the applicant's pre-trial detention, and 21 December 2001, when the Regional Court handed down its judgment, was “in accordance with a procedure prescribed by law” and “lawful” within the meaning of Article 5 § 1 of the Convention.

The Court notes at the outset that neither Article 369 § 2 nor Article 423 § 2 of the CCP contain any specific rules on pre-trial detention. Although the situation addressed by Article 369 § 2 concerns a referral from a single ‑ judge Chamber to a full bench within the same instance and the situation addressed in Article 423 § 2 a remittal from an appeal court to a first-instance court, it is clear from the Supreme Court's case-law that a decision to refer or remit does not constitute a “final judgment” within the meaning of Article 138 of the CCP, but is to be regarded under domestic law as a decision of an interim nature entailing an interruption of the examination at trial before the tribunal to which the case has been remitted, i.e. in the instant case the Haarlem Regional Court.

Consequently, on the basis of the national courts' interpretation of the applicable domestic law, the applicant's pre-trial detention on the date of remittal of his case to the Haarlem Regional Court was based on the Court of Appeal's decision – not being a final ruling within the meaning of Article 138 of the CCP – of 17 September 2001 in which, by virtue of Article 75 § 1 of the CCP, it prolonged the applicant's pre-trial detention by thirty days.

The applicant's subsequent pre-trial detention was governed by Article 66 § 2 of the CCP according to which an order for pre-trial continues to remain in force where the examination at trial has commenced in the course of this order's thirty days' validity.

The Court does not find that the pre-trial detention complained of was based on an arbitrary interpretation of the pertinent provisions of domestic law. In this respect it observes in particular that the Supreme Court did consider in its ruling of 17 January 1992 that, in the absence of a specific statutory provision on this point and – also in light of the guarantees of Article 5 of the Convention – acknowledging the need to limit the use and duration of pre-trial detention as much as possible and to ensure adequate judicial scrutiny of extended pre-trial detention in cases where the examination at trial is interrupted on account of a referral, in such a situation the provisions of Article 282 (former Article 277a) of the CCP – which oblige courts, in case of an interruption of the examination at trial in a case where the suspect is being held in pre-trial detention, to resume this examination in principle within one month – are to be applied by analogy. This case-law was subsequently applied by the Amsterdam Court of Appeal in a decision taken on 25 September 1997 concerning a situation in which a case was remitted by the Court of Appeal to the Regional Court.

In its decision of 17 September 2001 in the instant case, the Court of Appeal remitted the case to the Haarlem Regional Court, refused to suspend the applicant's pre-trial detention and ordered the Regional Court to commence the re-trial within thirty days. The first hearing after remittal in the applicant's case was in fact held before the Regional Court after twenty days. It is obvious, although this provision was not explicitly cited by the Court of Appeal, that the application of Article 282 § 2 of the CCP in the present case was directly based on the above-cited, published, domestic case-law, and considers that this element clearly distinguishes the instant case from that of Baranowski v. Poland , in which it was emphasised that persons were kept in detention solely as the result of a practice based neither on a statutory provision nor on any specific case-law (see, no. 28358/95, § 54, ECHR 2000-III). Furthermore, in the present case the applicant was assisted by a lawyer who, by virtue of his profession, must have been aware of the relevant statutory provisions and the pertinent published domestic case-law concerning remittal by the Court of Appeal to the Regional Court.

The Court therefore fails to see why the application of Article 282 § 2 of the CCP in respect of the procedure on pre-trial detention after remittal of a case would render this detention arbitrary under Article 5 of the Convention. On the contrary, the application of this domestic provision provided the applicant with the very guarantees required by Article 5 of the Convention.

The Court concludes that the applicant's pre-trial detention, of which complaint is made, was not only in conformity with domestic law but also satisfied the requirements of Article 5 § 1 of the Convention.

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

In so far as the applicant complained that the manner in which the proceedings on his request to lift or to suspend his detention on remand, as conducted before the Haarlem Regional Court in October 2001, were not in accordance with the requirements of a fair and proper procedure, the Court recalls that Article 5 § 4 of the Convention entitles arrested or detained persons to a review bearing upon the procedural and substantive conditions which are essential for the “lawfulness”, in Convention terms, of their deprivation of liberty. This means that the competent court has to examine not only compliance with the procedural requirements of domestic law but also the reasonableness of the suspicion underpinning the arrest, and the legitimacy of the purpose pursued by the arrest and the ensuing detention. (see Butkevičius v. Lithuania , no. 48297/99, § 43, 26 March 2002).

The Court notes that the validity of the detention order given by the Amsterdam Court of Appeal was due to expire on 17 October 2001 and that the applicant was apparently well aware that the Regional Court would examine his requests to lift or suspend his detention on remand at the hearing on 16 October 2001. It further notes that the applicant chose not to appear at the hearing, claiming that he had not been duly summoned and that, in the absence of his client, the applicant's defence lawyer did not wish to submit any arguments on these requests.

Noting the reasons stated by the Regional Court for its decision of 16 October 2001 to proceed with its examination of the applicant's request to lift or suspend his detention on remand, as well as the reasons stated by that court for ordering the prolongation thereof, the Court finds no indication that these proceedings fell short of the requirements of fair and proper proceedings under Article 5 § 4 of the Convention.

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

The applicant also complains that the time which elapsed between the filing of his appeal against the decisions taken on 15 and 16 October 2001, and the hearing of this appeal held on 21 December 2001, breached the requirement of “speed”, laid down in Article 5 § 4 of the Convention.

The Court recalls that Article 5 § 4 guarantees no right, as such, to an appeal against decisions ordering or extending detention, but the intervention of a judicial organ at least at one instance must comply with the guarantees of Article 5 § 4 (see Butkevičius v. Lithuania , cited above, § 43).

The Court notes that, on 4 January 2002, the Amsterdam Court of Appeal declared the applicant's appeal inadmissible, holding that no appeal could be filed against the impugned decisions of the Haarlem Regional Court.

Recalling its above findings under Article 5 § 4 of the Convention in respect of the proceedings conducted before the Haarlem Regional Court, which themselves showed sufficient speed, the Court is of the opinion that this part of the application must also 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