ECtHR communicates applications against the Netherlands about refusal to apply mandatory suspension of surrender detention after 90 days

On 5 October last, the European Court of Human Rights (ECtHR) decided to communicate to the Dutch Government three applications filed against the Netherlands.

The applicants complain about a violation by the Netherlands of art. 5 ECHR (right to liberty and security), more particularly the obligation laid down in this article that all detention must be in accordance with national law.

All three applicants were detained on the basis of a European Arrest Warrant (EAW). Dutch law (art. 22, par. 4 of the Surrender Act) provides that if the Amsterdam District Court does not rule on the EAW within 90 days, the wanted person must be conditionally released from detention.

In the cases of the applicants, the Amsterdam District Court had been unable to rule on the EAWs within 90 days. The reason for this was that it had to postpone its decisions multiple times because of problematic detention conditions in Romania and a preliminary reference on this issue made to the Court of Justice of the European Union.

As a result of the lapsing of the 90 days time limit, the applicants requested the Amsterdam District Court to conditionally release them. The District Court denied these requests, arguing that because of the special circumstances of the case, the 90-days time limit had been suspended (see ECLl:NL:RBAMS:2016:1995ECLl:NL:RBAMS:2016:2630 and ECLI:NL:RBAMS:2016:9691). The applicants filed an appeal against this decision. The Amsterdam Court of Appeal, however, confirmed the decisions of the District Court, albeit on the basis of a different line of argumentation (see ECLl:NL:GHAMS:2016:1838ECLl:NL:GHAMS:2016:4900; and ECLI:NL:GHAMS:2017:220). Interestingly enough, the subject matter of the case resulted in a serious disagreement between the Amsterdam District Court and the Amsterdam Court of Appeal. The disagreement was so fundamental that the district court felt compelled to stick to its own line of reasoning even though this reasoning was overturned time and again in appeal by the court of appeal.

The applicants believe that it is not necessary to establish which court (District Court or Court of Appeal) is right. After all, the Amsterdam Court of Appeal decided on their applications for release in final instance and that court’s line of argumentation does in any event not stand up to legal scrutiny. In the applicants’ view, the line of reasoning of the Amsterdam Court of Appeal is in clear contravention of the plain text of the law as a result of which their continued detention was also unlawful. They therefore decided to submit an application to the ECtHR.

By communicating the applications, the Dutch Government is given an opportunity to respond to the arguments of the applicants. Only a very small number of applications reaches this stage of the complaint procedure at the ECtHR. The ECtHR will decide on the merits of the applications after having heard (further) arguments of the various parties involved.

The applicants in all three cases are represented by Thom Dieben, attorney and partner at JahaeRaymakers. The communication decisions of the ECtHR can be downloaded herehere and here.