The number of people in unjustified detention in the Netherlands is still increasing. Last year, the country awarded 28.8 million euros worth of damages to 6,112 people because of unjust custody. Ten years earlier, only 1,874 people received damages for the same reason. Former detainees are entitled to damages when they’ve been acquitted or if they’ve been held in unwarranted pre-trial detention.

According to the Dutch Association of Defense Counsel, the increase has to do with the fact that Dutch judges tend to place suspects in pre-trial detention too quickly. Of all detainees in the Netherlands, almost half are in pre-trial custody. These people are doing time without an official conviction. Ever since 2003, the Netherlands has been a front-runner in Europe with regard to imposing pre-trial detention.

The ECHR and the ECtHR

Articles 5 and 6 of the European Convention of Human Rights (ECHR) provide for the right of everyone to live in freedom and security and—in case of prosecution—of the right of everyone to a fair trial and to be considered innocent until his guilt is proven in a court of law.

Article 5, paragraph 1c of the ECHR determines that no one should be deprived of his liberty, unless "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 offense or when it is reasonably considered necessary to prevent his committing an offense or fleeing after having done so." The principle that a person should be able to await his trial in as much freedom as possible is at the basis of these two rights.

In its case law, the European Court of Human Rights (ECtHR) has affirmed the above-mentioned rights several times. The ECtHR has established that the reasonable suspicion mentioned in Article 5, paragraph 1c, exists in case it can be deducted from the facts or from the information of persons who are subject to the same legal system about the suspect having committed the offense (see O’Hara v. United Kingdom, 2001).

Furthermore, it has established grounds on which it may be determined that a suspect cannot await his trial in freedom (see Smirnova v. Russia, 2003, and Piruzyan v. Armenia, 2012). Once again: grounds focused on the right that a person should be able to await his trial in as much freedom as possible.

The European Union

Apart from the Council of Europe, the Council of the European Union has also incited guidelines to curb the imposition and the length of pre-trial detention. In its resolution of November 30, 2009 (2009/C 295/01), the Council of the European Union notes that the length of pre-trial detention varies considerably in the member states and affirms that this is not only harmful to individuals, but also to the judicial cooperation between the member states and the values of the European Union. In the Green Paper that was issued by the European Commission on June 14, 2011, following the resolution, it is emphasized once more that pre-trial detention is a measure of last resort, one that should be applied for a minimum amount of time.

The Netherlands: opposing tendencies

The above examination of developments within the Council of Europe and the EU with regard to pre-trial detention show that the Netherlands is not only lagging behind in this area, but is in fact rowing against the current. The aforementioned figures point to an undesired development. This development is the result of a political climate that calls for harsher punishments and a greater scope for imposing pre-trial detention.

On January 29, 2010, the former minister of Justice, Hirsh Ballin, wrote in a letter to the House of Representatives that certain offenses require a direct judicial reaction. He proposed the instrument of summary justice as well as the inclusion of such offenses in Article 67a of the Code of Criminal Procedure as grounds for pre-trial detention. On May 20, 2011, former Minister of Security and Justice Ivo Opstelten and former State Secretary for Security and Justice Fred Teeven came up with a legislative proposal that aimed to expand the grounds of this very article. This amendment of the law entered into force on January 1, 2015.

These developments contribute to the reinforcement of the leading position in Europe of the Netherlands regarding the imposition of pre-trial detention. Despite the clear signals from Europe, on a national level the Netherlands is implementing a policy that is not in line with the development of the principle that a person should be able to await his trial in as much freedom as possible. This is an undesired tendency in the context of Articles 5 and 6 of the ECHR.

Contribution by Bram van Lieshout