Communicated on 23 October 2014

THIRD SECTION

Application no. 35965/14 Adrianus Cornelis Hendricus Johannes HERMAN against the Netherlands lodged on 9 May 2014

STATEMENT OF FACTS

The applicant, Mr Adrianus Cornelis Hendricus Johannes Herman , is a Dutch national, who was born in 1975 and lives in Helmond . He is represented before the Court by Mr T.P.M. Kouwenaar , a lawyer practising in ‘ s -Hertogenbosch .

A. The circumstances of the case

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

2. On 10 June 2012 at 10.27 a.m. the applicant was arrested on suspicion of robbery and subsequently he was held for questioning. It is noted that article 61 of the Code of Criminal Procedure ( Wetboek van Strafvordering ; “ CCP ” ) stipulates that a suspect can be held for questioning for a maximum of six hours . On the same day a t 7 .05 p.m. the applicant was taken into police custody ( inverzekeringstelling ).

3 . On 13 June 2012 the investigating judge ( rechter-commissaris ) found the police custody order lawful, even though it appeared that the procedural requirements had not been complied with because the above-mentioned maximum period of deprivation of liberty for the purpose of questioning had been exceeded. However, after balancing the interests at stake, the investigating judge decided that the applicant would not be released immediately and subsequently his initial detention on remand ( inbewaringstelling ) was ordered. No further appeal lay against this decision.

4 . On 20 June 2012 the Regional Court, sitting in chambers, ordered the applicant ’ s extended detention on remand ( gevangenhouding ). The applicant appealed this decision and claimed that the police custody had been unlawful. The Court of Appeal rejected this claim as it was held that the alleged unlawfulness of the police custody could not be discussed anymore at this stage of the proceedings, but it could be put forward in the criminal proceedings against the applicant when it came to the determination of the sentence. The applicant ’ s appeal was dismissed on 12 July 2012.

5 . On 8 October 2012 the applicant was convicted of inter alia the robbery in connection with which he had been placed in police custody on 10 June 2012. The applicant asked the Regional Court, under the terms of article 359a of the CCP, to mitigate his sentence in view of the fact that the abovementioned maximum period during which a person could be held for questioning had been exceeded. It was held by the Regional Court that there were no reasons to mitigate the sentence, because the applicant had not suffered any concrete disadvantage as a result of that period having been exceeded. The Regional Court sentenced the applicant to a partially suspended prison term of 22 months.

6 . The applicant appealed this decision and claimed that the police custody had been unlawful. In its decision of 12 February 2013 the Court of Appeal quashed the decision of the Regional Court, but the applicant ’ s claim was rejected on the same grounds as those employed by the Regional Court.

7 . On 11 March 2014 the Procurator General to the Supreme Court advised the Supreme Court to declare the applicant ’ s appeal on points of law inadmissible pursuant to article 80a of the Judicial Organisation Act ( Wet op de rechterlijke organisatie ), which section allows the Supreme Court to declare an appeal on points of law inadmissible when it considers that it is not justified to consider the complaints raised because the appellant party obviously has insufficient interest in the appeal on points of law or because the complaints obviously cannot succeed. On 1 April 2014, and with reference to the Advocate General ’ s advisory opinion, the Supreme Court rejected the applicant ’ s appeal on points of law pursuant to article 80a of the Judicial Organisation Act.

B. Relevant domestic law

8. Article 61 § 1 of the CCP reads, insofar as relevant, as follows:

“ 1. If the suspect is not taken into police custody in accordance with section 57 nor arraigned before the examining magistrate in accordance with section 60, he shall be released, unless he is detained for investigative purposes for maximum six hours by order of the public prosecutor or the assistant public prosecutor before whom the suspect was brought or who personally arrested the suspect. The suspect shall be questioned while he is being detained for investigative purposes.”

9. Article 359a of the CCP reads, insofar as relevant, as follows:

“1. The Regional Court may , if it appears that procedural requirements were not complied with during the preliminary investigation which can no longer be re dressed and the legal consequences thereof are not apparent from the law, determine that:

a . the gravity of the sentence shall be reduc ed in proportion to the seriousness of the procedural violation , if the harm or prejudice caused by the violation can be compensated in this manner ;

b . the finding s of the investigation obtained as a result of the procedural violation may not be used as evidence of the offence as charged in the indictment ;

c . the prosecution be declared inadmissible, if owing to the procedural violation there cannot be said to be a trial of the case in compliance with the principles of due process.

2. In its application of the first paragraph, the Regional Court shall take into account the interests served by the infringed rule, the gravity of the procedural violation and the harm or prejudice caused by it.

...”

COMPLAINT

10. The applicant complains of a violation of Article 5 of the Conve ntion in that he was deprived of his liberty for longer than legally allowed and was not awarded any compensation for this unlawful deprivation of liberty.

QUESTIONS TO THE PARTIES

1. Was the applicant deprived of his liberty in breach of Article 5 § 1 (c) of the Convention? In particular, was the deprivation of liberty during the period between 4.27 and 7.05 p.m. on 10 June 2012 compatible with the statutory limit on holding a suspect for questioning?

2. Did the applicant have an effective and enforceable right to compensation for his detention in alleged contravention of Article 5 § 1 (c), as required by Article 5 § 5 of the Convention?