Communicated on 24 May 2017

THIRD SECTION

Application no 54892/16 Firozhkan BADULLAH against the Netherlands lodged on 16 September 2016

STATEMENT OF FACTS

1 . The applicant, Mr Firozhkan Badullah, is a Dutch national who was born in 1965 and lives in Rotterdam. He is represented before the Court by Mr R.C. Fransen, a lawyer practising in Amsterdam.

A. The circumstances of the case

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

1. Criminal proceedings before the Rotterdam Regional Court

3 . On 11 November 2013 the applicant was arrested and taken into police custody ( inverzekeringsstelling ) on suspicion of offences under the Opium Act ( Opiumwet ), including bringing large quantities of cocaine into the Netherlands.

4 . On 14 November 2013 the applicant was placed in initial detention on remand ( inbewaringstelling ) for fourteen days by order of an investigating judge ( rechter-commissaris ) of the Rotterdam Regional Court ( rechtbank ).

5 . On 26 November 2013 the applicant was placed in extended detention on remand ( gevangenhouding ) for ninety days by order of the Rotterdam Regional Court.

6 . On 7 February 2014 the Rotterdam Regional Court ordered the suspension of the applicant ’ s pre-trial detention ( schorsing van de voorlopige hechtenis ) from the moment he supplied security for bail in the sum of 25,000 euros (EUR). The suspension of the applicant ’ s pre-trial detention was subject to, inter alia , the condition “that the suspect not commit a new criminal act during the suspension of his pre-trial detention” (“ de verdachte zal zich gedurende de schorsingsperiode niet aan enig strafbaar feit schuldig maken ”). The order of the Rotterdam Regional Court further stated that the EUR 25,000 would serve as security for the applicant ’ s compliance with the suspension conditions.

2. Criminal proceedings before the Zeeland-West-Brabant Regional Court

7 . On 12 March 2014 the applicant was arrested and taken into police custody again. He was suspected of handling stolen goods ( heling ), as well as new offences under the Opium Act, namely possession of 30 kg of cocaine and 86 kg of cannabis.

8 . On 13 March 2014 the applicant was placed in initial detention on remand for eight days by order of an investigating judge of the Zeeland ‑ West-Brabant Regional Court.

9 . The applicant denied the allegations against him.

10 . The applicant was released from detention after eight days.

3. Proceedings before the Rotterdam Regional Court concerning revocation of the suspension

11 . On 21 March 2016 the Rotterdam Regional Court revoked the suspension of the pre-trial detention and held that the EUR 25,000 paid as security would become the property of the State. Relying on an official record ( proces-verbaal ) submitted by the public prosecutor, the court stated, “the applicant has committed a criminal offence during the suspension of the pre-trial detention” (“ dat de verdachte zich toch tijdens de schorsing van de voorlopige hechtenis heeft schuldig gemaakt aan een strafbaar feit ”).

4. Subsequent developments

12 . On 31 March 2016 the Rotterdam Regional Court convicted the applicant of the charges relating to his arrest on 11 November 2013, and sentenced him to forty-two months ’ imprisonment with credit for the time he had spent in pre-trial detention.

13 . On 19 July 2016 the applicant was questioned once more by the police about the facts relating to his arrest on 12 March 2014. At the time the application was lodged, no official charges had been brought against him in respect of those facts.

B. Relevant domestic law and practice

14 . The relevant domestic law and practice are set out in Geisterfer v . the Netherlands , no. 15911/08 , 9 December 2014.

15 . In addition, the relevant parts of Article 82 of the Code of Criminal Procedure (“the CCP”) state:

“1. The court may, ex officio or on the application of the Public Prosecution Service, order the revocation of the suspension at any time. ...”

16 . The relevant part of Article 83 of the CCP reads:

“1. If the suspension is revoked on account of failure to comply with the conditions, then, in the decision revoking the suspension, the court may also declare that the security will become the property of the State. ...

2. The decision shall be deemed an irrevocable decision of the civil court and shall be enforced as such. ...

4. If the suspect, after revocation of the suspension, evades enforcement of the pre ‑ trial detention order, the security shall be declared the property of the State, if this has not already been done. The security shall also be declared the property of the State, even if revocation of the suspension has not been ordered, if the suspect fails to comply with the condition referred to in Article 80(2 )( 2 o ). The decision shall be given ex officio or on the application of the Public Prosecution Service. The preceding paragraphs shall apply .”

COMPLAINT

The applicant complains under Article 6 § 2 of the Convention that the decision of the Rotterdam Regional Court of 21 March 2016 revoking the suspension of his pre-trial detention violated the presumption of innocence since this decision was based on the court ’ s finding that he had committed a new offence, despite the fact he had not yet been tried and proved guilty of that offence.

QUESTION TO THE PARTIES

Was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected by the decision of 21 March 2016 of the Rotterdam Regional Court revoking suspension of the applicant ’ s pre-trial detention?