In 2023, Ukrainian Yurii S. killed 23-year-old Darren van Velsen in a drink-driving accident. For this, Yurii S. was sentenced to 3.5 years of imprisonment. Nevertheless, for social reasons - the main being his wife's pregnancy - he was released from pre-trial detention and allowed to await his trial in freedom. Since his release, however, the man has disappeared without a trace. Sanne Struijk, professor of Penal Law at Erasmus School of Law, discusses the system of pre-trial detention in De Telegraaf.
The case of Yurii S. has caused great frustration for Darren's relatives. Therefore, the question arises: how can a convict be given the opportunity to flee?
Suspension order
A major point of criticism in this case was that the court, in its ruling at a so-called pro forma hearing, decided to suspend Yurii S.'s pre-trial detention but, while doing so, made no clear decision on whether to lift the suspension order later. A suspension order means that a suspect can remain at liberty until all proceedings are completed. Even if conviction has already been ruled and the accused appeals, he can await his further trial at liberty. This was the case for Yurii S. who was allowed to await his appeal in freedom, despite his sentence of 3.5 years of imprisonment. The court weighed the accused's personal circumstances, including his partner's pregnancy, more heavily than the potential flight risk. However, when the detention order was issued only months later, Yurii S. was untraceable. How is this possible and, more importantly, how can it be prevented?
Does bail offer a solution?
In other countries, such as the United States, bail is regularly used in cases of suspension of pre-trial detention. A bail is a financial deposit paid by a defendant to be allowed to remain at liberty pending trial. The idea behind bail is that a defendant puts down money as a guarantee that they will comply with the conditions of the trial, such as appearing at hearings. If the defendant does not comply with the conditions, bail can be withheld by the court. In the Netherlands, the possibility of releasing a suspect on bail also exists. However, judges are often reluctant, partly because it is difficult to find a suitable case.
Struijk explains that in the Netherlands, the system of pre-trial detention is strictly regulated. Judges first assess whether there is a case and grounds for pre-trial detention. They also consider whether there are serious objections against the suspect. All this determines whether the suspect can be detained during the proceedings. Only then is it considered whether the suspect should also be detained, or whether it is appropriate to suspend pre-trial detention, possibly subject to conditions such as the payment of bail. In this context, Struijk also points to the anticipation requirement that judges must consider in their decision. The anticipation requirement means that pre-trial detention can only be ordered if the expected sentence is at least as long as the length of pre-trial detention. “For example, if someone will not receive a sentence of more than two years in prison on appeal, it is legally difficult to justify keeping them in pre-trial detention for three years”, Struijk explains.
The paradox
In De Telegraaf, Struijk argues that there is a paradox: “It feels strange to first decide that someone should be detained on legal grounds, and then still investigate whether they can be released against, for example, payment of bail. This sequence helps explain why the Netherlands leads in the number of people in pre-trial detention. We would have to fundamentally reverse our system if we want to apply bail more often. The starting point should then be that suspects await their trial at liberty, unless there are compelling reasons to detain them.”
- Professor
