As fits a centre of research on judicial administration, earlier blogs have dealt with urgent questions about the adherence to the rule of law and the functioning of the judiciary in the Netherlands. The topic of pre-trial detention combines all those questions. Here the politics of safety, the politicization of constitutional guarantees (Brenninkmeijer, ‘Stresstest rechtsstaat Nederland’, NJB 2015, afl. 16, p. 1049), and public opinion exert a particular problematic influence on the independence of the judiciary, which should guarantee critical review of pre-trial detention and the presumption of innocence.
Of course pre-trial detention has never been a peaceful topic and the deprivation of liberty of a person whose guilt has not yet been established should always remain a troubling topic. It is therefore important that pre-trial detention remains a constant focus in research. Through fundamental research that challenges the definition of the presumption of innocence and through empirical research that identifies the alternatives and the application thereof. Both types of research are conducted within the Montaigne Centre.
But in the Netherlands the practice of pre-trial detention is a problem, which precedes the recent critical analyses concerning the adherence to the rule of law. The most difficult issue concerns the role of the judiciary. For many years now the literature has been very critical about the Dutch practice of pre-trial detention, inter alia in the light of case law of the European Court of Human Rights on the right to liberty and security of article 5 ECHR. In a series of judgments the ECtHR has outlined the principles of pre-trial detention. Two of these know a questionable compliance within Dutch practice: (1) the principle that the suspect may await his trial in liberty, and by extension the obligation to examine alternatives to detention, and (2) the requirement of a concrete and individual reasoning for the decision to – extend – pre-trial detention in which the maximum sentence and the expected punishment may not be the sole reasons. Requests for pre-trial detention by the Public Prosecutor are generally awarded and the reasoning of the judicial decision to allow pre-trial detention is not much more that the ‘ticking off’ of the most applicable legal ground(s) for pre-trial detention. This has led to the highest percentage in Europe of pre-trial detainees . The fact that in Strasbourg limited reasoning regarding the ground of an offence carrying a maximum sentence of twelve years’ imprisonment and causing serious upset of the legal order (Art. 67a sec. 2 subsec 1 Code of Criminal Procedure (CCP)) is not considered a key issue when the period of pre-trial detention is – relatively – short and the legislation requires extensive judicial review, has failed to dispel the sense of unease about the Dutch judicial review of pre-trial detention. And rightly so, as evidenced by the recent judgment of the ECHR in the case Geisterfer v. the Netherlands (EHRM 9 december 2014, appl.no. 15911/08). The application of pre-trial detention in this case was based on a combination of the aforementioned twelve-year ground, the ground of prevention of recidivism and the ground of prevention of collusion. The pre-trial detention was conditionally suspended after three months because the trial had been postponed due to the medical condition of the co-defendant, but the court indicated that the grounds for the pre-trial detention remained present. The court also decided that the Dutch anticipation requirement (Art. 67s sec. 3 CCP) did not give rise to termination. This judgment was subsequently repeated twice: in reaction to a request to lift the pre-trial detention four months later and in reaction to this same request at the trial hearing. The applicant was then again placed in pre-trial detention. The fact that there had been no disruption of the public order during the months in which the applicant had been released, did not make the court change its mind about the continued existence of the twelve-year ground. The ECtHR repeated that social disturbance, caused by offenses of a particular gravity, can justify pre-trial detention in exceptional circumstances. These grounds can only be deployed on the basis of facts capable of showing that release of the accused would actually disturb social order. In addition the continuation of pre-trial detention is only legitimate if public order remains actually threatened. Thus, the necessity to continue the pre-trial detention cannot be assessed solely by the gravity of the offences. This is what went wrong in the case of Geisterfer : the ECtHR concludes that the district court appears to have accorded such a preponderant weight to the gravity of the charges that no other circumstances were taken into account. In rejecting the requests attention was only granted to the gravity of the charges and the interests of the Public Prosecutor in pre-trial detention; whether the public order was in danger, or whether there were other reasons for pre-trial detention, had not been addressed.
Hereby the ECtHR displays the core of a judicial practice that has been topic of debate and was explicitly denounced by three Rotterdam judges in an important article ( Janssen, Van den Emster en Trotman, ‘Strafrechters over de praktijk van de voorlopige hechtenis. Een oordeel van de werkvloer!’, Strafblad december 2013, p. 430-444). They label the role of the judiciary as the last link in the safety chain, instead of as the independent reviewing state power. Layer by layer they unmask the pre-trial detention practice as a reaction to the social danger of crime. This practice has grown from the basis of the legislation which seeks to impose restrictions to pre-trial detention and which gives grounds that correspond to the case law of Strasbourg. The legislator has of course contributed to the dominance of penal aims in the pre-trial detention, but the pre-existing tradition of an ‘efficient cookie factory’ (efficiënte koekjesfabriek) has provided the legislator with an easy entry to expand pre-trial detention for less serious crimes. Thereby the statutory threshold of the ‘case’ has lost its restricting meaning. The interpretation of the grounds of pre-trial detention shows that the politics of safety have penetrated the judicial review. The three judges show for each ground that the (abstract) gravity of the facts and the avoidance of security risks are dominant. The last step in this process is the introduction in statute of a new ground for pre-trial detention in cases in which summary proceedings are envisaged as from 1 January 2015; here, the punitive purpose is the primal reason (immediately after committing the offence the accused should experience the criminal law reaction in order to show him and society that his behavior is unacceptable) and the judge is deprived of substantive review (See Milly Haveman & Leonie van Lent, ‘Vastzetten om het vastzitten. Evaluatie van het concept-wetsvoorstel tot wijziging van het Wetboek van Strafvordering in verband met de uitbreiding van de gronden voor voorlopige hechtenis’, AA februari 2012, p. 97-98). In addition, a major problem is that successive judges as a general rule do not overrule an earlier decision, thereby depriving significance to the legal system of judicial review of pre-trial detention. Once ‘serious objections’ have been regarded established this decision remains in place, and also the perverse effects of the anticipation requirement are amply known: the punishment that the pre-trial detention judge expects is subsequently imposed by the trial judge. This not only violates the ECHR-ban on imposing pre-trial detention in anticipation of the imposition of a prison sentence (Geisterfer t. Nederland, EHRM 9 december 2014, appl.no. 15911/08), but also negates the purpose of the Dutch anticipation requirement . Thus, the decision on sentencing is shifted forward to a phase in the criminal proceedings in which the presumption of innocence forbids punishment and insufficient evidence is provided.
How much this efficiency oriented tradition gives room for the – alleged – public opinion and the politics of safety to affect judicial independence is illustrated by a radio interview of 7 May 2015 (Radio 1, De Ochtend, 7 May 2015) about the huge increase in the amount paid in damages for wrongful pre-trial detention – the costs of the ‘cookie factory’ so to say. In the program defense lawyer Van Oosten first spoke about what is wrong with the Dutch practice and then judge Van Oosten was asked for a response. Although she denied that judges are not critical enough in their assessment of the pre-trial detention, her answers nevertheless confirmed the widely criticized observation that pre-trial detention is applied as a rule. Even more alarming is the picture that this judge painted; a picture of a judiciary trapped in the raison d’état and the public opinion together. “In the current political constellation a tough approach and deprivation of liberty are dominant; judges too have to comply to this”, according to van Rens. In today’s society suspension of pre-trial detention is only possible if conditions can be set that can ensure safety, because if it goes wrong, “everyone will jump on us.”
 11 miljoen in 2012, een verdrievoudiging in tien jaar, aldus Ybo Buruma, ‘Onschuldig gedetineerd!’, NJB 2013/1929, p. 2129; inclusief de kosten van de hechtenis zelf zou dit neerkomen op 29 miljoen, zie ‘Schadevergoedingen ex-verdachten kosten 29 miljoen per jaar’, Volkskrant 8 mei 2015.