To keep someone in pre-trial detention, there must be good reasons. These reasons can be assumed if there is a shaken legal order, the investigation is not yet complete, there is a risk of flight or there is a danger of recurrence. The term 'repetition' or 'recidivism' does not originate in the law. It would also be out of keeping with the principle that a person is innocent until proven guilty. The law therefore refers to 'reasons of social security requiring immediate deprivation of liberty'. Yet in practice, it refers to 'repeat or recidivism risk'.

The stated weighty reasons of social safety may be present if the 'major or minor ground for recidivism' is assumed. The major ground for recidivism is present if 'it should be seriously taken into account that the accused would commit a crime punishable by law by imprisonment of six years or more' or 'likely to endanger the security of the State or the health or safety of persons or to create a general danger to property'. The minor ground for recidivism is present if, although there is a lighter crime of violence or property, less than five years have elapsed since the last conviction and there should further be serious consideration that the accused will commit one of those crimes again.

This text reflects that there are serious rhe possibility that the accused will commit a crime must be taken into account. Or will commit a crime again, if he has been convicted before. But what exactly does the term 'seriously consider' in?

If serious consideration must be given to the possibility that the accused will commit an offence in the event of release, it means that the probability must be considerable or significant. It is insufficient if there is only a possibility that an expelled suspect would commit an offence. Nor can it be inferred from a previous irrevocable conviction that there is a high probability that someone will commit an offence again. After all, a conviction should also act as a deterrent. Nor should the seriousness of the offence play any role in how likely it would be to commit a new offence.

Only from the suspicion and criminal record should not be inferred that there are serious account should be taken of a new offence if the accused were to be sent away. The pending criminal case could also actually reduce the chances of re-offending. Too often, Dutch judges seem to err on the side of caution, and that is not how the regulation was intended. In 2021, the European Court of Human Rights granted defendants this.

'In essence, the case-law of the ECtHR means that the court's decision must state whether, and if so why, in the specific case before it, the accused does not qualify for the right to await trial at liberty. In doing so, it is not sufficient merely to refer to generalities or general formulas, but rather to state, on the basis of concrete circumstances, why pre-trial detention is necessary in that particular case.'

This means that the criminal record or suspicion alone should not be referred to in order to assume a risk of recidivism either. If judges cannot justify on the basis of what concrete circumstances there is a risk of recidivism and also for that reason continuation of pre-trial detention is necessary, the suspect should be released pending trial.

The judiciary currently shows a mixed picture. Often, time pressure in the judiciary is the reason why we still see too many unmotivated decisions. Dutch judges are therefore expected to have to be reminded of this European case law often. The ruling does help.

Mr. D.M. Penn