Published on 24 October 2022

FOURTH SECTION

Application no. 36141/21 Fatih KAYA against the Netherlands lodged on 12 July 2021 communicated on 4 October 2022

SUBJECT MATTER OF THE CASE

The applicant’s pre-trial detention, which started on 26 November 2020, was based on the existence of a reasonable suspicion of his involvement in narcotics trade and export and, initially, on grounds relating to a risk of reoffending, a risk of serious upset to the legal order, and a risk of his frustrating the ongoing investigation. On 20 January 2021 the Zeeland ‑ West ‑ Brabant Regional Court dismissed the applicant’s request for the conditional suspension of his pre-trial detention. The applicant’s appeal against this decision was dismissed by the ‘s-Hertogenbosch Court of Appeal on 18 February 2021. On 12 March, 1 June (on which occasion it was held that the risk of the applicant frustrating the ongoing investigation no longer obtained) and 7 July 2021, respectively, the Regional Court dismissed the applicant’s subsequent requests for a conditional suspension. In each of these decisions the courts held that the applicant had not adduced compelling personal interests that justified such a suspension and/or that his personal interests did not (yet) outweigh the interests of continued detention.

In support of his requests the applicant had submitted, inter alia , a court-ordered advisory opinion of the probation and social rehabilitation service ( reclasseringsadvies ), dated 30 June 2021, and/or a self-commissioned probation report by a private organisation, dated 11 January 2021, both recommending the suspension of his pre-trial detention under certain conditions.

The applicant complains under Article 5 § 3 of the Convention that the refusals to suspend his pre-trial detention were not based on relevant and sufficient reasons and that feasible alternatives to detention were not seriously considered. Under Article 5 § 4 of the Convention he complains that the appeal lodged on 22 January 2021 was not decided upon speedily.

QUESTIONS TO THE PARTIES

1. Has there been a violation of Article 5 § 3 of the Convention? In particular, were the Zeeland-West-Brabant Regional Court’s decisions of 20 January, 12 March, 1 June and 7 July 2021 – dismissing the applicant’s requests to conditionally suspend his detention on remand – and the ‘s ‑ Hertogenbosch Court of Appeal’s decision of 18 February 2021 – upholding the Regional Court’s decision of 20 January 2021 – sufficiently reasoned, taking into account the analysis and conclusions set out in the self-commissioned probation report by a private organisation of 11 January 2021 and the court-ordered advisory opinion of the probation and social rehabilitation service ( reclasseringsadvies ) of 30 June 2021, both of which were submitted to the courts on the applicant’s behalf (see Zherebin v. Russia , no. 51445/09, §§ 50-54 and 61-62, 4 March 2016; Hasselbaink v. the Netherlands , no. 73329/16, §§ 67-73, 9 February 2021; and Maassen v. the Netherlands , no. 10982/15, §§ 53-59, 9 February 2021)?

2. Did the Court of Appeal take its abovementioned decision “speedily” as required by Article 5 § 4 of the Convention (see Hasselbaink , cited above, §§ 84-86)?