THIRD SECTION

Application no . 15911/08 Richard GEISTERFER against the Netherlands lodged on 26 March 2008

STATEMENT OF FACTS

The applicant, Mr Richard Geisterfer , is a Netherlands national, who was born in 1962 and lives in Amsterdam. He is represented before the Court by Ms T . Spronken , 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.

The applicant was suspected of membership of a crime ring organised around one H., a person widely known to have amassed criminal convictions for serious crimes; of complicity in extortion; and of possession of an illegal firearm.

On 30 January 2006 the applicant was arrested. On 2 February he was taken into initial pre-trial detention ( bewaring ) for fourteen days by order of an investigating judge of the Haarlem Regional Court ( rechtbank ).

On 14 February 2006 the applicant was taken into extended pre-trial detention ( gevangenhouding ) for thirty days by order of the Haarlem Regional Court following a hearing in camera . This decision stated the following grounds:

“that there is a suspicion of a [criminal] act which, according to the law, carries a punishment of imprisonment of twelve years or more and the legal order has been seriously rocked by that act ( een feit waarop naar de wettelijke omschrijving een gevangenisstraf van twaalf jaren of meer is gesteld en de rechtsorde ernstig door dat feit is geschokt );

that there is a serious likelihood ( dat er ernstig rekening mee moet worden gehouden ) that the suspect will commit a crime ( misdrijf ) by which the health or safety of persons will be endangered;

in view of the arbitrary and/or ill-considered way ( willekeurige en/of lichtvaardige wijze ) in which the suspect came to commit the act presumed to have been perpetrated;

that pre-trial detention is reasonably necessary for discovering the truth otherwise than through statements of the suspect , since the suspect denies [the crime] in whole or in part and (an)other witness( es ) need(s) to be heard;

investigations are needed in other respects;

and/or investigations are needed into the whereabouts of the [goods] criminally obtained by the suspect ( het door verdachte wederrechtelijk verworvene ) and these [goods] need to be seized;

whereas the suspect, if he remains at large, can seriously impede those investigations; ...”

The Regional Court renewed its order for a further term of thirty days on 11 April 2006. The applicant appealed against this decision; his appeal was dismissed by the Amsterdam Court of Appeal ( gerechtshof ) on 17 May 2006.

The order for the applicant ’ s extended pre-trial detention was renewed periodically by the Regional Court until its suspension.

On 7 May 2007 the Haarlem Regional Court ordered the suspension ( schorsing ) of the applicant ’ s pre-trial detention with effect from noon the following day. The reason stated was the following:

“The Regional Court is of the view that the serious reasons and grounds stated in the order for extended pre-trial detention ( bevel tot gevangenhouding ) still exist and that Article 67a § 3 of the Code of Criminal Procedure ( Wetboek van Strafvordering ) is not yet applicable.

Even so, the Regional Court considers it appropriate, in view of the circumstance that it has today ordered the suspension of the trial until a date next September, to decide as follows as to the execution of the detention on remand.

The suspension of the trial is directly linked with the state of health of a co-suspect and the Regional Court ’ s decision in principle ( uitgangspunt ) to pursue the proceedings against all suspects simultaneously.

That being so, and also in light of the length of the pre-trial detention until today, the Regional Court is led to suspend the pre-trial detention until the day on which the trial of the suspect will be pursued.”

The co-suspect referred to was H., who needed time to recover from heart surgery which he had undergone in detention before his trial could resume.

The suspension of the applicant ’ s pre-trial detention was made subject to the following conditions:

“1. that the suspect not seek to evade the execution of the pre-trial detention order if its suspension should be terminated;

2. that the suspect, should he be sentenced to a custodial sentence other than [in lieu of a fine or a community service order] for the criminal act for which the pre-trial detention was ordered, not seek to evade its execution;

3. that the suspect not perpetrate a new criminal act during the time in which his pre-trial detention shall be suspended;

4. that the suspect attend the remainder of his trial;

5. that the suspect immediately obey any summons from the police, the prosecution or the court ( politie en justitie );

6. that the suspect not have any direct or indirect contact with (any one of) his co-suspects or the witnesses ...

7. that the suspect hand in his passport and/or his identity card ...

8. that the suspect shall report in person twice a week ( zich tweemaal per week dient te melden ) at times and places indicated to him by the public prosecution service ( openbaar ministerie ).”

On 20 August 2007 the applicant submitted a request for his detention on remand to be lifted altogether ( opheffing van het bevel tot voorlopige hechtenis ).

On 22 August 2007 the Haarlem Regional Court gave a decision in the following terms:

“This court ’ s decision of 7 May 2007 suspended the suspect ’ s pre-trial detention in connection with the special circumstances mentioned in that decision, which did not concern the suspect himself, which entailed the interruption of the trial for a considerable time.

The Regional Court has allowed the interest of the suspect in awaiting the resumption of his trial in freedom to prevail over the prosecution interest in keeping the suspect in pre-trial detention on the grounds stated in the order for extended pre-trial detention only because of that special situation and only for as long as that situation might continue. As the suspect ’ s trial will resume before long and the said special situation will from then on no longer exist, there will, from then on, be no reason to allow the suspension of the suspect ’ s pre-trial detention to continue.

The Regional Court takes the view that the serious reasons and grounds, with the exception of the ground related to the investigations, still exist and considers that Article 67a § 3 is not yet applicable. The mere fact stated by the suspect ’ s counsel that since the applicant ’ s liberation there has been no large-scale public protest and that the suspect has complied unreservedly ( onverkort ) with the suspension conditions do not mean that there is no longer a ‘ seriously rocked legal order ’ within the meaning of Article 67a § 2 under 1 or the danger of an offence within the meaning of Article 67a § 2 under 2.

Considering also the nature of the first-mentioned ground – briefly, an offence carrying a twelve-year sentence that has seriously rocked the legal order –, the Regional Court does not consider the arguments submitted sufficient reason to suspend the pre-trial detention, as is requested in the alternative as a less intrusive way of using this means of coercion ( minder bezwarende wijze van toepassing van dit dwangmiddel ). ...”

No appeal was possible against this decision.

The trial resumed on 25 September 2007. The applicant, through his counsel, made a request at the hearing for the pre-trial detention order to be lifted, or in the alternative, for the suspension to be continued. According to the official record ( proces-verbaal ) of the hearing, the Regional Court gave a refusal, stated by its president in the following terms:

“The Regional Court refers to its decision of 7 May last. At the time, the medical situation of the co-suspect H., the Regional Court ’ s desire to consider the cases together, and the fairly long duration of the pre-trial detention led to the decision to suspend the pre-trial detention until such time as the trial would resume.

As soon as these reasons no longer apply the Regional Court must consider the situation afresh.

This does not mean that the Regional Court will look back to see how well things have gone and what ripples your release has caused ( hoeveel rumoer er over uw vrijlating is ontstaan ), but that it will consider whether the serious reasons and grounds still exist. It takes the view that such is the case.

As regards the alternative request, the Regional Court takes the view that the prosecution interest would not be served in sufficient measure if you could, within the framework of a suspension of your pre-trial detention, await the outcome of your criminal case in freedom. Your personal interest in awaiting the determination of your case in freedom does not outweigh the prosecution interest. Your pre-trial detention should therefore continue, given also that there is no question at the present time of applying Article 67a § 3 of the Code of Criminal Procedure.

The president stresses that the Regional Court will continue to consider ex officio whether it is necessary for the pre-trial detention to continue, and whether there may be grounds to order a variant as regards the modalities of its execution.

The Regional Court dismisses both the principal and the alternative requests.”

On 15 November 2007 the applicant ’ s counsel submitted a further request for the lifting or, in the alternative, the suspension of the pre-trial detention order. This too was refused.

On 4 December 2007 the Regional Court lifted the applicant ’ s pre-trial detention. The decision was in the following terms:

“That the Regional Court, sitting in camera , has come to take the view that serious reasons and grounds referred to in the order for extended pre-trial detention still exist, but that at this point Article 67a § 3 of the Code of Criminal Procedure leads the Regional Court to take the appertaining decision.”

On 21 December 2007 the Regional Court convicted the applicant and sentenced him to eighteen months ’ imprisonment. The applicant lodged an appeal, which was pending at the time when the present application was lodged.

B. Relevant domestic law

Provisions of the Code of Criminal Procedure relevant to the case are the following:

Article 67

“1. An order for pre-trial detention can be issued in case of suspicion of:

(a) an offence which, according to its legal definition , carries a sentence of imprisonment of four years or more;

(b) one of the offences defined in Articles 132, 137c § 2, 137d § 2, 137e § 2, 137g § 2, 285 § 1, 285b, 300 § 1 , 321, 323a, 326c § 2 , 350, 395 , 417bis and 420quater of the Criminal Code ( Wetboek van Strafrecht ) ;

(c) one of the offences defined in:

- section 122 § 1 of the Animals (Health and Welfare) Act ( Gezondheids - en welzijnswet voor dieren );

- section 175 § 2, part b, or § 3 taken together with § 1, of the 1994 Road Traffic Act ( Wegenverkeerswet 1994 );

- section 30 § 2 of the Civil Authority Special Powers Act ( Wet buitengewone bevoegdheden burgerlijk gezag );

- section 52, 53 § 1 and 54 of the Military Service (Conscientious Objectors) Act ( Wet gewetensbezwaren militaire dienst );

- section 31 of the Betting and Gaming Act ( Wet op de kansspelen );

- section 11 § 2 of the Opium Act ( Opiumwet );

- section 55 § 2 of the Weapons and Ammunition Act ( Wet wapens en munitie );

- sections 46 , 46a and 46b of the 1995 Securities Transactions (Supervision) Act ( Wet toezicht effectenverkeer ).

2. The order can further be issued if no permanent address or place of residence of the suspect in the Netherlands can be established and he is suspected of an offence within the jurisdiction of the regional courts and which, according to its legal definition , is punishable by imprisonment ( gevangenisstraf ) .

3. The previous paragraphs are only applied when it appears from the facts or circumstances that there are serious indications against the suspect.”

Article 67a

“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 its legal definition , carries a sentence of imprisonment of twelve years or more and the legal order has been seriously rocked by that act;

- 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 285, 300, 310, 311, 321, 322, 323a, 326, 326a, 350, 416, 417bis, 420bis or 420quater 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 in addition a serious likelihood 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.”

Article 80

“1. The trial court can – ex officio , or on the application of the prosecution or at the request of the suspect – order that the pre-trial detention shall be suspended as soon as the suspect, after putting up guarantees or not as the case may be, has declared himself willing to comply with the conditions governing the suspension. Such application or request shall state reasons.

2. The conditions governing the suspension shall in all cases include the following:

-1. that the suspect not seek to evade the execution of the pre-trial detention order if its suspension should be terminated;

-2. that the suspect, should he be sentenced to a custodial sentence other than [in lieu of a fine or a community service order] for the criminal act for which the pre-trial detention was ordered, not seek to evade its execution. ...”

COMPLAINT

The applicant complains under Article 5 § 3 of the Convention that from 27 September 2007 until 4 December 2007 he was kept in pre-trial detention without adequate justification, or in the alternative, that the pertinent decision of the Regional Court gave insufficient reasons .

QUESTIONS TO THE PARTIES

1. Upon resumption of the trial (on 25 September 2005), when was the applicant taken back into detention? The parties are requested to submit any relevant documents.

2 . The parties are requested to submit the following documents in order to complete the Court ’ s case file:

2a. Copies of the Regional Court ’ s periodic orders for the prolongation of the applicant ’ s extended detention on remand, given between 11 April 2006 and 7 May 2007;

2b. A copy of the applicant ’ s appeal against the extension order of 11 April 2006;

2c. Copies of the document or documents reflecting the applicant ’ s counsel ’ s further request on 15 November 2007 for the lifting or, in the alternative, the suspension of the pre-trial detention order and the refusal thereof;

2d. Copies of the Regional Court ’ s judgment of 21 December 2007 and of any judgments given on appeal ( hoger beroep ) or appeal on points of law ( cassatie ).

3 . Was the applicant ’ s pre-trial detention between 25 September 2007 and 4 December 2007 justified under Article 5 § 1 (c) of the Convention?

In particular, were the grounds stated by the Regional Court sufficient?