Caso Engel y otros contra Holanda, de 08/06/1976
Violation of Art. 5-1
EUROPEAN COURT OF HUMAN RIGHTS
In the case of Engel and others,
The European Court of Human Rights, taking its decision in plenary session in
application of Rule 48 of the Rules of Court and composed of the following
judges:
MM. H. MOSLER, President, A. VERDROSS, M. ZEKIA, J. CREMONA, G. WIARDA, P.
O'DONOGHUE, Mrs. H. PEDERSEN, MM. T. VILHJÁLMSSON, S. PETREN, A. BOZER, W.
GANSHOF VAN DER MEERSCH, Mrs. D. BINDSCHEDLER-ROBERT, M. D. EVRIGENIS
and also Mr. M.-A. EISSEN, Registrar, and Mr. H. PETZOLD, Deputy Registrar,
Having deliberated in private on 30 and 31 October 1975, from 20 to 22 January
and from 26 to 30 April 1976,
Delivers the following judgment, which was adopted on the last-mentioned date:
PROCEDURE
1. The case of Engel and others was referred to the Court by the European
Commission of Human Rights (hereinafter referred to as "the Commission") and by
the Government of the Kingdom of the Netherlands (hereinafter referred to as "the
Government"). The case originated in five applications against the Kingdom of
the Netherlands which were lodged with the Commission in 1971 by Cornelis J.M.
Engel, Peter van der Wiel, Gerrit Jan de Wit, Johannes C. Dona and Willem A.C.
Schul, all Netherlands nationals.
2. Both the Commssion's request, to which was attached the report provided for
in Article 31 (art. 31) of the Convention for the Protection of Human Rights and
Fundamental Freedoms (hereinafter referred to as "the Convention"), and the
application of the Government were lodged with the registry of the Court within
the period of three months laid down in Articles 32 para. 1 and 47 (art. 32-1,
art. 47) - the former on 8 October 1974, the latter on 17 December. They
referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby
the Kingdom of the Netherlands recognised the compulsory jurisdiction of the
Court (Article 46) (art. 46). Their purpose is to obtain a decision from the
Court as to whether or not the facts of the case disclose a breach by the
respondent State of its obligations under Articles 5, 6, 10, 11, 14, 17 and 18 (art.
5, art. 6, art. 10, art. 11, art. 14, art. 17, art. 18) of the Convention.
3. On 15 October 1974, the President of the Court drew by lot, in the presence
of the Registrar, the names of five of the seven judges called upon to sit as
members of the Chamber; Mr. G.J. Wiarda, the elected judge of Netherlands
nationality, and Mr. H. Mosler, Vice-President of the Court, were ex officio
members under Article 43 (art. 43) of the Convention and Rule 21 para. 3 (b) of
the Rules of Court respectively. The five judges thus designated were Mr. A.
Verdross, Mr. M. Zekia, Mr. P. O'Donoghue, Mr. T. Vilhjálmsson and Mr. R.
Ryssdal (Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).
Mr. Mosler assumed the office of President of the Chamber in accordance with
Rule 21 para. 5.
4. The President of the Chamber ascertained, through the Registrar, the views of
the Agent of the Government and the delegates of the Commission regarding the
procedure to be followed. By an Order of 31 October 1974, he decided that the
Government should file a memorial within a time-limit expiring on 14 February
1975 and that the delegates should be entitled to file a memorial in reply
within two months of receipt of the Government's memorial. On 22 January 1975,
he extended the time-limit granted to the Government until 1 April.
The Government's memorial was received at the registry on 1 April, that of the
delegates on 30 May 1975.
5. After consulting, through the Registrar, the Agent of the Government and the
delegates of the Commission, the President decided by an Order of 30 June 1975
that the oral hearings should open on 28 October.
6. At a meeting held in private on 1 October 1975 in Strasbourg, the Chamber
decided under Rule 48 to relinquish jurisdiction forthwith in favour of the
plenary Court, "considering that the case raise(d) serious questions affecting
the interpretation of the Convention ...". At the same time, it took note of the
intention of the Commission's delegates to be assisted during the oral procedure
by Mr. van der Schans, who had represented the applicants before the Commission;
it also authorised Mr. van der Schans to speak in Dutch (Rules 29 para. 1 in
fine and 27 para. 3).
7. On 27 October 1975, the Court held a preparatory meeting to consider the oral
stage of the procedure. At this meeting it compiled two lists of requests and
questions which were communicated to the persons who were to appear before it.
The documents thus requested were lodged by the Commission on the same day and
by the Government on 21 November 1975.
8. The oral hearings were held in public at the Human Rights Building,
Strasbourg, on 28 and 29 October 1975.
There appeared before the Court:
- for the Government:
- Mr. C.W. VAN SANTEN, Deputy Legal Adviser at the Ministry of Foreign Affairs,
Agent;
- Mr. C.W. VAN BOETZELAER VAN ASPEREN, Permanent Representative of the
Netherlands to the Council of Europe, Substitute Agent;
- Mr. E. DROOGLEEVER FORTUIJN, Solicitor for the Government,
- Mr. R.J. AKKERMAN, Official at the Ministry of Defence,
- Mr. W. BREUKELAAR, Official at the Ministry of Justice,
- Mr. J.J.E. SCHUTTE, Official at the Ministry of Justice,
- Mr. A.D. BELINFANTE, Professor at the University of Amsterdam, Advisers;
- for the Commission:
- Mr. J.E.S. FAWCETT, Principal Delegate,
- Mr. F. ERMACORA, Delegate,
- Mr. E. VAN DER SCHANS, who had represented the applicants before the
Commission, assisting the delegates under Rule 29 para. 1, second sentence.
The Court heard addresses by Mr. Fawcett, Mr. Ermacora and Mr. van der Schans
for the Commission and by Mr. van Santen, Mr. Droogleever Fortuijn and Mr.
Belinfante for the Government, as well as their replies to questions put by the
Court.
9. On 30 October, the Commission produced various documents which its
representatives had mentioned during the oral hearings.
10. On the instructions of the Court, the Registrar requested the Commission, on
3 and 13 November 1975, to supply it with details on a particular point of the
case; these were furnished on 4 and 14 November.
AS TO THE FACTS
11. The facts of the case may be summarised as follows:
12. All applicants were, when submitting their applications to the Commission,
conscript soldiers serving in different non-commissioned ranks in the
Netherlands armed forces. On separate occasions, various penalties had been
passed on them by their respective commanding officers for offences against
military discipline. The applicants had appealed to the complaints officer (beklagmeerdere)
and finally to the Supreme Military Court (Hoog Militair Gerechtshof) which in
substance confirmed the decisions challenged but, in two cases, reduced the
punishment imposed.
THE SYSTEM OF MILITARY DISCIPLINARY LAW IN THE NETHERLANDS
13. The disciplinary law concerning the Netherlands Army, applicable at the time
of the measures complained of in this case, was set out in the Military
Discipline Act of 27 April 1903 (Wet op de Krijgstucht - hereinafter referred to
as "the 1903 Act"), the Regulations on Military Discipline of 31 July 1922 (Reglement
betreffende de Krijgstucht), the Military Penal Code of 27 April 1903 (Wetboek
van Militair Strafrecht) and the Army and Air Force Code of Procedure in its
version of 9 January 1964 (Rechtspleging bij de Land-en Luchtmacht).
This system of law has evolved during the course of the years. In particular,
certain provisions of the 1903 Act, applied in the present case, have been
repealed or amended by an Act of 12 September 1974, which came into force on 1
November 1974.
14. Alongside disciplinary law, there exists in the Netherlands a military
criminal law. Proceedings under the latter are held at first instance before a
court martial (Krijgsraad) and subsequently, if appropriate, before the Supreme
Military Court on appeal.
The account that follows relates solely to military disciplinary law which, like
military criminal law, applies equally to conscript servicemen, such as the
applicants, and to volunteers.
Military disciplinary offences
15. Offences against military discipline are defined in Article 2 of the 1903
Act as being:
"1. all acts not included in any criminal legislation which are contrary to any
official order or regulation or inconsistent with military discipline and order;
2. such criminal acts as fall within the jurisdiction of the military judge,
insofar as they are inconsistent with military discipline and order but at the
same time of such trivial nature that the matter can be dealt with in
proceedings other than criminal proceedings."
The Regulations on Military Discipline of 31 July 1922 set out the basic
principles of military discipline (Section 15 para. 2). Under Section 16 para.
1, the question whether or not the conduct of a member of the armed forces is
consistent with military discipline and order must be answered by reference to
the general considerations set out in the first part of those Regulations.
Sections 17 to 26 list - by way of example, as stated in Section 16 para. 2 -
offences against military discipline, such as membership of extremist
organisations, non-observance of secrecy, possession and distribution of
objectionable writings, showing discontentment, failure to perform military
duties, absence without leave, incorrect or disorderly behaviour, disrespect for
property, failure to give assistance, neglect of hygiene and cleanliness,
failure to perform watch and patrol duties, etc.
Several of these acts and omissions constitute at the same time criminal
offences punishable under the Military Penal Code, for example, absence without
leave for one day or more (Article 96), disobedience to a military order (Article
114) and distribution of objectionable writings (Article 147).
Under Article 8 of the Army and Air Force Code of Procedure the competent
officer imposes a disciplinary penalty if he considers that the person concerned
is guilty of an offence that can be dealt with outside criminal proceedings.
Military disciplinary penalties and measures
16. At the relevant time, the provisions on the various penalties that could be
imposed on persons having committed disciplinary offences were contained in
Articles 3 to 5 of the 1903 Act.
The nature of the penalties depended on the rank of the offender. Thus, Article
3-A provided for reprimand, "light arrest (licht arrest) of at most 14 days" and
"strict arrest (streng arrest) of at most 14 days" as the principal disciplinary
punishments for officers. As regards non-commissioned officers, Article 4-A
provided, inter alia, for reprimand, restrictions to camp during the night, "light
arrest of at most 21 days", "aggravated arrest (verzwaard arrest) of at most 14
days" and "strict arrest of at most 14 days". Ordinary servicemen were, under
Article 5-A, subject, broadly speaking, to the same punishments as non-commissioned
officers, with the additional possibility for privates of "committal to a
disciplinary unit" (plaatsing in een tuchtklasse). All ranks of servicemen could,
under paragraph B of each of the above Articles, also suffer loss of wages as "supplementary
punishment".
17. Under the 1903 Act the manner of execution of disciplinary punishments also
varied according to rank.
18. Execution of light arrest was governed by Article 8:
"Light arrest shall be carried out:
A. By officers:
1. on land: in their dwellings, tent or barracks or, when bivouacking, in the
place designated by the commanding officer;
2. ...
B. By non-commissioned officers and ordinary servicemen:
1. on land: in their barracks, base or dwellings or, when in quarters, camping
or bivouacking, in the place designated by the commanding officer;
2. ...
...
Servicemen undergoing light arrest are not excluded from performing their duties."
The effect of this provision was that any serviceman under light arrest,
irrespective of rank, had usually to remain in his dwelling during off-duty
hours if he lived outside the barracks; otherwise he was confined to barracks.
Officers and non-commissioned officers normally lived outside, whereas ordinary
servicemen were as a rule obliged to live within, the barracks. In practice,
ordinary servicemen had for some time enjoyed a degree of freedom of movement in
the evenings between five o'clock and midnight and at weekends. They often made
use of this to stay with their families but this did not mean that they were no
longer required to live in barracks.
By reason of the above, an ordinary serviceman, unlike an officer or non-commissioned
officer, was in general not able to serve light arrest at home, and he thereby
lost the privilege of returning to his family home during off-duty hours.
Conscripts permitted to live outside the barracks were in the same situation:
under Article 123 of the Rules for Internal Service in the Royal Army (Reglement
op de Inwendige Dienst der Koninklijke Landmacht), the permission was suspended,
inter alia, in the case of disciplinary arrest; however, this provision, deemed
contrary to the 1903 Act, disappeared in 1974.
A serviceman under light arrest at the barracks was allowed visits,
correspondence and the use of the telephone; he could move freely about the
barracks outsite duty hours, being able for instance to visit the camp cinema,
canteen and other recreation facilities.
19. The execution of aggravated arrest, which applied only to non-commissioned
officers and ordinary servicemen, was governed by Article 9 of the 1903 Act.
Those concerned continued to perform their duties but for the rest of the time
had to remain, in the company of other servicemen undergoing a similar
punishment, in a specially designated but unlocked place. The offender might
receive visits if he had the company commander's written permission. Unlike a
person under light arrest, he could not move freely about the barracks so as to
visit the cinema, canteen or recreation facilities. As far as possible, ordinary
servicemen had to be separated from their fellows (afzondering) during the
night.
20. The execution of strict arrest was governed by Article 10 of the 1903 Act.
The period of arrest, covering both duty and off-duty hours, was served by
officers in a similar manner to light arrest, that is they usually remained at
home, whereas non-commissioned officers and ordinary servicemen were locked in a
cell. All ranks were excluded from the performance of their normal duties.
21. Execution of what at the time was the most severe form of disciplinary
penalty, committal to a disciplinary unit (plaatsing in een tuchtklasse), which
applied only to privates, was governed by Articles 18 and 19 of the 1903 Act.
This punishment consisted of submitting the offender to a stricter discipline
than normal by sending him to an establishment which was specially designated
for that purpose (Article 18). According to Article 19, service in a
disciplinary unit was imposed for a period, determined when the penalty was
pronounced, of from three to six months. In this respect alone did it differ
from committal to a punishment unit (plaatsing in een strafklasse), a
supplementary punishment which, under Article 27 of the Military Penal Code,
could be imposed on a serviceman, in the context of criminal proceedings, for a
period of from three months to two years.
Committal to a disciplinary unit, when it was ordered towards the end of
military service, generally delayed the individual's return to civil life. Its
execution was governed by a Decree of 14 June 1971 (Besluit straf-en
tuchtklassen voor de krijgsmacht) which concerned both committal to a punishment
unit and, in principle (Article 57), committal to a disciplinary unit. Those
undergoing such punishment were removed from their own unit and placed in a
special, separate group; their movements were restricted, they carried out their
military service under constant supervision and emphasis was placed on their
education (Articles 17, 18 and 20).
The units were divided into three sections. Offenders as a rule passed thirty
days in each of the first two, but these periods could be prolonged or shortened
according to their conduct (Articles 26 and 27). As far as possible, they spent
their nights separated from each other (afgezonderd - Article 28). In the first
section, they were allowed to receive visits twice a month and to study during
off-duty hours (Article 29). In the second, they also enjoyed a degree of
freedom of movement on Saturdays and Sundays and at least twice a week could
visit the canteen and/or recreation facilities in the evening after duty (Article
30). In the third, the régime was appreciably less strict (Article 31).
22. Under Article 20 of the 1903 Act, a serviceman on whom the punishment of
committal to a disciplinary unit had been imposed might, on that ground, be
placed under arrest after sentence had been passed and held in custody until he
arrived at the establishment where the punishment was to be served. It seems
that any of the three forms of arrest outlined above could be employed under the
terms of this text.
No provision existed in military disciplinary law to limit or fix in advance or
otherwise control the duration of this interim custody, or to provide for the
possibility of deducting the period of such custody from the time to be spent in
the disciplinary unit.
23. Disciplinary penalties imposed on a serviceman could be taken into account
when, for example, the question of his promotion arose. On the other hand they
were not entered on his criminal record and, according to the information
obtained by the Court at the hearing on 28 October 1975, had no effects in law
on civil life.
24. As the result of the Act of 12 September 1974, both the range of
disciplinary punishments available and the manner in which they are to be
enforced have been made the same for all ranks of servicemen. Strict arrest and
committal to a disciplinary unit are abolished. Even before its entry into force
(1 November 1974), these punishments had ceased to be imposed in practice,
following a ministerial instruction.
While reprimand, light arrest and aggravated arrest remain, the maximum period
during which any arrest may be imposed is now fourteen days, and aggravated
arrest is henceforth also applicable to officers (Articles 3, 8 and 9 of the
1974 Act). Aggravated arrest today constitutes the severest form of disciplinary
punishment. Three further penalties have been introduced by the 1974 Act: extra
duties of between one and two hours a day, compulsory presence overnight in the
barracks or quarters, and a fine.
Military disciplinary procedure
25. Articles 39 to 43 of the 1903 Act state who may impose disciplinary
punishments. This is normally the commanding officer of the individual's unit.
He investigates the case and hears the serviceman accused (Article 46 of the
1903 Act) and questions witnesses and experts if that proves necessary.
For each offence committed the officer chooses which of the various punishments
available under the law should be applied. "When determining the nature and
severity of disciplinary punishments", he shall be "both just and severe", shall
have "regard to the circumstances in which the offence was committed as well as
to the character and customary behaviour of the accused" and shall base his
decision "on his own opinion and belief" (Article 37 of the 1903 Act).
26. Article 44 of the 1903 Act provides that any superior who has sufficient
indication to suppose that a subordinate has committed a severe offence against
military discipline is entitled, if necessary, to give notice of his provisional
arrest (voorlopig arrest); the subordinate is obliged to comply immediately with
that notification. Provisional arrest is usually served in the same way as light
arrest, but, if required either in the interest of the investigation or in order
to prevent disorder, it is served in a similar way to aggravated or, as was the
case prior to the 1974 Act, strict arrest. The serviceman concerned is as a rule
excluded from performing his duty outside the place where he is confined.
Article 45 stipulates that provisional arrest shall not last longer than 24
hours and Article 49 states that the hierarchical superior of the officer
imposing provisional arrest may set it aside after hearing the latter. The
period of such provisional arrest may be deducted in whole or in part from the
punishment imposed.
27. Under Article 61 of the 1903 Act the serviceman on whom a disciplinary
penalty has been imposed may challenge before the complaints officer his
punishment or the grounds thereof unless it has been imposed by a military
court. The complaints officer is the hierarchical superior of the officer giving
the initial decision rather than a specialist, but he is usually assisted by a
colleague who is a lawyer, especially in cases (before the 1974 Act) of
committal to a disciplinary unit.
The complaint must be submitted within four days; if the complainant is under
arrest he may on request consult other persons named by him (maximum of three),
unless the commanding officer considers their presence to be inadvisable
(Article 62).
The complaints officer must examine the case as soon as possible; he questions
witnesses and experts to the extent he thinks necessary and hears the
complainant and the punishing officer. He then gives a decision which must be
accompanied by reasons and communicated to the complainant and the punishing
officer (Article 65).
28. Appeal against the decision imposing a disciplinary punishment has no
suspensive effect although the Minister of Defence may defer the execution of
such punishment on account of special circumstances. Article 64 of the 1903 Act
provided an exception in the case of committal to a disciplinary unit; the
serviceman's appeal did not, however, entail the suspension or termination of
any interim custody imposed under Article 20.
29. If the punishment has not been quashed by the complaints officer, the
complainant may appeal within four days to the Supreme Military Court (Article
67 of the 1903 Act).
30. The composition of this Court and its functioning are regulated by the
"Provisional Instructions" on the Supreme Military Court (Provisionele
Instructie voor het Hoog Militair Gerechtshof) promulgated on 20 July 1814 but
since amended several times. Under Article 1 the Court shall be established at
The Hague and shall be composed of six members: two civilian jurists - one of
whom is the Court's President - and four military officers. A State Advocate for
the Armed Forces (advocaat-fiscaal voor de Krijgsmacht) and a Registrar are
attached to the Court.
The civilian members (Article 2 of the "Provisional Instructions") must be
Justices of the Supreme Court (Hoog Raad) or Judges of the Court of Appeal
(Gerechtshof) at The Hague and Articles 11, 12, 13 and 15 of the Judicature Act
(Wet op de Rechterlijke Organisatie) of 18 April 1827, providing, inter alia,
for tenure of office and grounds for discharge, are applicable to them. They are
appointed by the Crown upon the joint recommendation of the Ministers of Justice
and of Defence; their term of office is equal to that of the Justices of the
Supreme Court or the Judges of a Court of Appeal.
The military members of the Court (Article 2 (a) of the "Provisional
Instructions"), who must be not less than 30 nor more than 70 years of age, are
likewise appointed by the Crown upon the joint recommendation of the Ministers
of Justice and of Defence. They may also be dismissed in a similar manner. In
theory, therefore, they are removable without observance of the strict
requirements and legal safeguards laid down regarding the civilian members by
the Judicature Act. According to the Government, the appointment of the military
members of the Court is normally the last in their service career; they are not,
in their functions as judges on the Court, under the command of any higher
authority and they are not under a duty to account for their acts to the service
establishment.
On assuming office, all members of the Court must swear an oath that obliges
them, inter alia, to be just, honest and impartial (Article 9 of the
"Provisional Instructions"). It is true that the military judges on the Court
remain members of the armed forces and as such bound by their oath as officers,
which requires them, among other things, to obey orders from superiors. This
latter oath, however, also enjoins obedience to the law, including in general
the statutory provisions governing the Supreme Military Court and, in
particular, the oath of impartiality taken by the judges.
31. Cases are never dealt with by a single judge but only by the Court as a
body. The Court is required to examine cases as soon as possible and to hear the
applicant and, if necessary, the punishing officer, the complaints officer and
any witness or expert whose evidence it may wish to obtain (Article 56 of the
"Provisional Instructions"). The Court reviews the decision of the complaints
officer both in regard to the facts and to the law; in no case has it
jurisdiction to increase the penalty (Article 58).
Whereas in criminal cases the Court's hearings are public (Article 43 of the
"Provisional Instructions" and paragraph 14 above), it sits in camera in
disciplinary cases. On the other hand the judgment is pronounced at a public
session; it must be accompanied by reasons and is communicated to the complaints
officer, the punishing officer and the appellant serviceman (Article 59).
32. At the time of the measures complained of in this case, no provision in law
was made for the legal representation of the complainant. Nevertheless, as a
report by the acting Registrar of the Supreme Military Court, dated 23 December
1970, explains, the Court in practice granted legal assistance in certain cases
where it was expected that the person concerned would not be able himself to
cope with the special legal problems raised in his appeal. This applied
particularly to cases where the Convention was invoked. The assistance was,
however, limited to such legal matters.
The position altered in 1973: under a ministerial instruction of 7 November 1973
(Regeling vertrouwensman - KL), a serviceman accused of a disciplinary offence
may have the services of a "trusted person" (vertrouwensman) at all stages of
the proceedings and even of a lawyer if the matter comes before the Supreme
Military Court (Articles 1, 17 and 18 of the instruction).
FACTS RELATING TO THE INDIVIDUAL APPLICANTS
Mr. Engel
33. In March 1971, Mr. Engel was serving as a sergeant in the Netherlands Army.
He in fact lived at home during off-duty hours. The applicant was a member of
the Conscript Servicemen's Association (Vereniging van Dienstplichtige
Militairen - V.V.D.M.) which was created in 1966 and aims at safeguarding the
interests of conscripts. It was recognised by the Government for taking part in
negotiations in this field and its membership included about two-thirds of all
conscripts.
Mr. Engel was a candidate for the vice-presidency of the V.V.D.M. and on 12
March he submitted a request to his company commander for leave of absence on 17
March in order to attend a general meeting in Utrecht at which the elections
were to be held. He did not, however, mention his candidature.
Subsequently he became ill and stayed home under the orders of his doctor who
gave him sick leave until 18 March and authorised him to leave the house on 17
March. On 16 March, the company commander had a talk with the battalion
commander and it was agreed that no decision should be taken regarding the
above-mentioned request pending further information from the applicant who had
given no notice of his absence or return. However, on the following day a check
was made at the applicant's home and it was discovered that he was not there. In
fact, he had gone to the meeting of the V.V.D.M. where he had been elected
vice-president.
34. On 18 March Mr. Engel returned to his unit and on the same day his company
commander punished him with four days' light arrest for having been absent from
his residence on the previous day.
The applicant considered this penalty a serious interference with his personal
affairs in that it prevented him from properly preparing himself for his
doctoral examination at the University of Utrecht which had been fixed for 24
March. According to the applicant, he had made several attempts on 18 March to
speak to an officer on this point but without success. Believing that under the
army regulations non-commissioned officers were allowed to serve their light
arrest at home, he left the barracks in the evening and spent the night at home.
However, the next day his company commander imposed a penalty of three days'
aggravated arrest on him for having disregarded his first punishment.
The applicant, who had just been informed that, with effect from 1 April 1971,
he had been demoted to the rank of private, again left the barracks in the
evening and went home. He was arrested on Saturday 20 March by the military
police and provisionally detained in strict arrest for about two days, by virtue
of Article 44 of the 1903 Act (paragraph 26 above). On Monday 22 March his
company commander imposed a penalty of three days' strict arrest for having
disregarded his two previous punishments.
35. The execution of these punishments was suspended by ministerial decision in
order to permit the applicant to take his doctoral examination which he passed
on 24 March 1971. Moreover, on 21, 22 and 25 March Mr. Engel complained to the
complaints officer about the penalties imposed on him by the company commander.
On 5 April the complaints officer decided, after having heard the parties, that
the first punishment of four days' light arrest should be reduced to a
reprimand, the second punishment of three days' aggravated arrest to three days'
light arrest, and the third punishment of three days' strict arrest to two days'
strict arrest. In the last two cases the decision was based on the fact that the
previous punishment(s) had been reduced and that the applicant had obviously
been under considerable stress owing to his forthcoming examination. The
complaints officer further decided that Mr. Engel's punishment of two days'
strict arrest should be deemed to have been served from 20 to 22 March, during
his provisional arrest.
36. On 7 April 1971 the applicant appealed to the Supreme Military Court against
the decision of the complaints officer relying, inter alia, on the Convention in
general terms. The Court heard the applicant and obtained the opinion of the
State Advocate for the Armed Forces. On 23 June 1971, that is about three months
after the date of the disciplinary measures in dispute, the Court confirmed the
contested decision. It referred to Article 5 para. 1 (b) (art. 5-1-b) of the
Convention and held that the applicant's detention had been lawful and had been
imposed in order to secure the fulfilment of an obligation prescribed by law.
The system under the 1903 Act and the applicable Regulations required in fact
that every serviceman should submit to and co-operate in maintaining military
discipline. This obligation could be enforced by imposing disciplinary
punishments in accordance with the procedure prescribed by the above Act. In
these circumstances, the applicant's punishment of two days' strict arrest had
been justified in order to secure the fulfilment of that obligation.
The applicant had not received the assistance of a legally trained person at any
stage in the proceedings against him; perusal of the file in the case does not
reveal if he asked for such assistance.
Mr. van der Wiel
37. Mr. van der Wiel, at the time of his application to the Commission, was
serving as a corporal in the Netherlands Army. On the morning of 30 November
1970 he was about four hours late for duty. His car had broken down during his
weekend leave and he had had it repaired before returning to his unit instead of
taking the first train. On these grounds, the acting company commander, on the
same day, imposed a penalty of four days' light arrest on the applicant. The
following day he revised the above grounds to include a reference that the
applicant had not previously requested the commander's leave of absence.
38. On 2 December, the applicant complained about his punishment to the
complaints officer invoking, inter alia, Articles 5 and 6 (art. 5, art. 6) of
the Convention. In this respect he alleged that he had been deprived of his
liberty by a decision which, contrary to the requirements of Article 5 (art. 5),
had not been taken by a judicial authority; that furthermore his case had not
been heard by an independent and impartial tribunal (Article 6 para. 1) (art.
6-1); that he did not have adequate time and facilities for the preparation of
his defence (Article 6 para. 3 (b)) (art. 6-3-b), and that he did not have legal
assistance (Article 6 para. 3 (c)) (art. 6-3-c).
39. On 18 December, following the rejection by the complaints officer of his
complaint on 16 December, the applicant appealed to the Supreme Military Court.
On 17 March 1971, the Court heard the applicant, who was assisted by a lawyer,
Sergeant Reintjes, and obtained the opinion of the State Advocate for the Armed
Forces. The Court then quashed the complaints officer's decision but confirmed
the punishment of four days' light arrest imposed on the applicant on the
original grounds stated on 30 November 1970.
The Court first found that Article 6 (art. 6) of the Convention was not
applicable in a case where neither the determination of a criminal charge nor
the determination of civil rights and obligations was in question. The Court
referred to the definition of military disciplinary offences contained in
Article 2 of the 1903 Act (paragraph 15 above) and concluded therefrom that
disciplinary proceedings clearly did not fall within the scope of Article 6
(art. 6). Nor was there any substance in the applicant's argument that, since a
conscripted man had not volunteered to come within the jurisdiction of the
military authorities, any disciplinary measure imposed upon him in fact had a
criminal character.
As regards the complaints based on Article 5 (art. 5), the Court first held that
four days' light arrest did not constitute "deprivation of liberty". In the
alternative, the Court further stated that the disputed punishment was meant to
"secure the fulfilment of (an) obligation prescribed by law", within the meaning
of Article 5 para. 1 (b) (art. 5-1-b).
40. At first and second instance in the proceedings Mr. van der Wiel had not
received any legal assistance, and during the proceedings before the Supreme
Military Court the legal assistance granted to him had, in line with the
practice described above at paragraph 32, been restricted to the legal aspects
of the case.
Mr. de Wit
41. Mr. de Wit, at the time of his application to the Commission, was serving as
a private in the Netherlands Army. On 22 February 1971, he was sentenced to
committal to a disciplinary unit for a period of three months by his company
commander on the grounds that, on 11 February 1971, he had driven a jeep in an
irresponsible manner over uneven territory at a speed of about 40 to 50 km. per
hour; that he had not immediately carried out his mission, namely to pick up a
lorry at a certain place, but that he had only done so after having been
stopped, asked about his orders and summoned to execute them at once; that, in
view of his repeatedly irregular behaviour and failure to observe discipline, he
had previously been warned about the possibility of being committed to a
disciplinary unit.
On 25 February, the applicant complained about his punishment to the complaints
officer alleging, inter alia, violations of the Convention. On 5 March, the
complaints officer heard the applicant who was assisted by Private Eggenkamp, a
lawyer and member of the central committee of the V.V.D.M., such assistance
having been granted by reason of the fact that the applicant had invoked the
Convention. The complaints officer also examined six witnesses, including one,
namely Private de Vos, on the applicant's behalf, and then confirmed the
punishment while altering slightly the grounds stated therefor. He rejected the
allegations under the Convention, referring to a judgment of the Supreme
Military Court dated 13 May 1970.
On 11 March, the applicant appealed to the Supreme Military Court against that
decision. In accordance with Article 64 of the 1903 Act, the applicant's
successive appeals had the effect of suspending execution of his punishment
(paragraph 28 above). The Court heard the applicant and his above-mentioned
legal adviser and obtained the opinion of the State Advocate for the Armed
Forces. On 28 April 1971, the Court, without mentioning the applicant's previous
behaviour, reduced the punishment to twelve days' aggravated arrest, which
sentence was executed thereafter. It considered that, in the circumstances, the
committal to a disciplinary unit for three months was too heavy a penalty.
42. The applicant alleges that in his case the calling of two other witnesses on
his behalf, namely Privates Knijkers and Dokestijn, was prevented at every
juncture. He also complains that the legal assistance granted to him had been
restricted to the legal aspects of his case.
Mr. Dona and Mr. Schul
43. Mr. Dona was serving as a private in the Netherlands Army at the time of his
application to the Commission. As editor of a journal called "Alarm", published
in stencilled form by the V.V.D.M. at the General Spoor barracks at Ermelo, he
had collaborated in particular in the preparation of no. 8 of that journal dated
September 1971. Acting in pursuance of the "Distribution of Writings Decree", a
ministerial decree of 21 December 1967, the commanding officer of the barracks
provisionally prohibited the distribution of this number, whose contents he
considered inconsistent with military discipline.
On 28 September, two officers met in commission on the instructions of the
commanding officer in order to hold an enquiry into the appearance of the said
number. The applicant, among others, was heard by the commission.
On 8 October 1971, the applicant was sentenced by his competent superior to
three months' committal to a disciplinary unit for having taken part in the
publication and distribution of a writing tending to undermine discipline. The
decision was based on Article 2 para. 2 of the 1903 Act, read in conjunction
with the first paragraph of Article 147 of the Military Penal Code which
provides:
"Any person who, by means of a signal, sign, dumb show, speech, song, writing or
picture, endeavours to undermine discipline in the armed forces or who, knowing
the tenor of the writing or the picture, disseminates or exhibits it, posts it
up or holds stocks of it for dissemination, shall be liable to a term of
imprisonment not exceeding three years."
Entitled "The law of the strongest" (Het recht van de sterkste), the article
objected to in no. 8 of "Alarm" alluded to a demonstration that had taken place
at Ermelo on 13 August 1971 on the initiative of the executive committee of the
V.V.D.M. According to Mr. van der Schans, the demonstration was terminated
almost at once since the demonstrators had promptly returned to their quarters
following the promise by the commanding officer that, if they did so, no
disciplinary sanctions would ensue. Nevertheless, a few soldiers were allegedly
transferred soon afterwards for having participated in the incident.
The passages in the article which gave rise to the disciplinary punishment of 8
October 1971 read as follows:
(a) "There happens to be a General Smits who writes to his 'inferiors' 'I will
do everything to keep you from violating the LAW'! But this very General is
responsible for the transfers of Daalhuisen and Duppen. Yet, as you know,
measures are never allowed to be in the nature of a disguised punishment. How
devoted to the law the General is - as long as it suits him";
(b) "... in addition to ordinary punishments, the army bosses have at their
disposal a complete series of other measures - of which transfer is only one -
to suppress the soldiers. That does not come to an end by questions in
Parliament - that makes them at most more careful. That only comes to an end
when these people, who can only prove their authority by punishment and
intimidation, have to look for a normal job."
44. The decision ordering the applicant's committal to a disciplinary unit
referred to the extracts quoted above. Furthermore, the decision took into
account some aggravating circumstances: Mr. Dona had collaborated in the
publication of no. 6 of the journal, which had likewise been prohibited under
the "Distribution of Writings Decree" by reason of its objectionable contents;
in addition, he had taken part in the demonstrations at Ermelo and had, in
particular, published in connection therewith a pamphlet, for which he received
on 13 August 1971 a punishment of strict arrest.
45. Mr. Schul, a private in the Netherlands Army at the time of his application
to the Commission, was also an editor of the journal "Alarm". The facts
regarding his case are identical to those of Mr. Dona's except that his
punishment initially amounted to four months' committal to a disciplinary unit
owing to the additional aggravating circumstance of his participation in the
publication of an "Information Bulletin" for new recruits the distribution of
which had been prohibited by reason of its negative content.
46. As early as 8 October 1971, the two applicants announced their intention to
complain about their punishment. According to them, they were then asked to
refrain from any further publication while proceedings were pending against
them. The Government maintain that they were only requested not to publish other
articles tending to undermine military discipline. The applicants replied before
the Court that they had not the slightest intention to write such articles and
that they had emphasised this on 28 September 1971 before the commission of
enquiry. According to the report of the latter, Mr. Dona had declared that it
was not at all his aim to write articles that he expected to be prohibited, and
Mr. Schul is recorded as saying: "When we produce pamphlets of this kind, it is
not our intention that they should be prohibited. The intention is that they
should be read. The risk of their being prohibited is great."
Be that as it may, the applicants refused to give the undertaking requested and
they were thereupon both placed under aggravated arrest in accordance with
Article 20 of the 1903 Act.
47. The applicants complained about their punishment to the complaints officer
who on 19 October confirmed it, while in the case of Mr. Dona slightly modifying
the grounds. He rejected the applicants' submissions, including those concerning
Articles 5, 6 and 10 (art. 5, art. 6, art. 10) of the Convention. In connection
with Articles 5 and 6 (art. 5, art. 6), he referred to a decision of the Supreme
Military Court delivered on 13 May 1970. The complaints officer also specified
that the applicants should remain in interim custody in accordance with Article
20 of the 1903 Act.
48. The applicants appealed to the Supreme Military Court, Mr. Schul on 21
October and Mr. Dona on the next day, invoking Articles 5, 6 and 10 (art. 5,
art. 6, art. 10) of the Convention.
Pursuant to Article 64 of the 1903 Act, the successive complaints and appeals by
the applicants suspended their committal to a disciplinary unit but not their
interim custody (paragraph 28 above).
On 27 October 1971, the Court ordered release of the applicants after they had
promised to accept the Court's judgment on the merits of the case, to comply
therewith in the future and, while proceedings were pending against them, to
refrain from any activity in connection with the compilation and distribution of
written material the contents of which could be deemed to be at variance with
military discipline. According to the applicants, this undertaking was given
only in extremis as there was no legal remedy available to terminate their
interim custody.
Like Mr. de Wit, the applicants had been assisted before the Court by Private
Eggenkamp who was, however, able only to deal with the legal aspects of their
case (paragraphs 41-42 above).
49. On 17 November 1971 the Supreme Military Court confirmed Mr. Dona's
committal to a disciplinary unit for three months, reduced Mr. Schul's committal
from four to three months and modified slightly the grounds for punishment in
both cases. The Court rejected as being ill-founded the applicants' allegations.
Making mention in both cases of their previous conduct and convictions, the
Court recalled particularly that they had previously participated in the
publication and distribution of writings that were prohibited on the basis of
the decree of 21 December 1967 (paragraphs 44-45 above). When fixing the
punishment, the Court deemed these factors to be indicative of their general
behaviour.
The Court then dealt with the applicants' allegations under Articles 5, 6 and 10
(art. 5, art. 6, art. 10) of the Convention, and also rejected them.
As regards Article 5 (art. 5), the Court held that the obligation to serve in a
disciplinary unit did not constitute "deprivation of liberty". In the
alternative, adopting reasoning similar to that contained in its decision on Mr.
Engel's appeal (paragraph 36 above), the Court found that the disputed
punishments had been justified under Article 5 para. 1 (b) (art. 5-1-b).
On the issue of Article 6 para. 1 (art. 6-1), the Court considered that the
disciplinary proceedings relating to the publication of the journal "Alarm" had
involved the determination neither of any "civil right", such as freedom of
expression, nor of any "criminal charge"; on the latter point, the Court based
its decision on reasons similar to those given in the decision on Mr. van der
Wiel's appeal (paragraph 39 above).
The applicants also contended that the measures taken against them interfered
with their freedom of expression. In this respect, the Court relied on paragraph
2 of Article 10 (art. 10-2); in its opinion, the restrictions objected to had
been necessary in a democratic society for the prevention of disorder within the
field governed by Article 147 of the Military Penal Code.
Finally, the applicants maintained that their interim custody had been
inconsistent with Article 5 para. 1 (c) (art. 5-1-c) of the Convention and
claimed compensation on this account under Article 5 para. 5 (art. 5-5). The
Court held that it had no competence to examine and decide such a claim.
50. A few days after the dismissal of their appeals, Mr. Dona and Mr. Schul were
sent to the Disciplinary Barracks (Depot voor Discipline) at Nieuwersluis in
order to serve their punishment. They were not allowed to leave this
establishment during the first month; moreover, they were both locked up in a
cell during the night.
51. Apart from the particular facts relating to Mr. Dona and Mr. Schul, there
was in the background a pattern of conflict between the Government and the
V.V.D.M. In mid-August 1971, for instance, there had occurred the demonstration
at Ermelo mentioned above at paragraph 43. The applicants also cite the fact
that prior to their punishment, and in particular between 1 January and 20
October 1971, the Minister of Defence had decreed a great number of prohibitions
on publications by the V.V.D.M. Furthermore, other servicemen, as editors of
sectional journals of the Association, had been punished in criminal or in
disciplinary proceedings - by aggravated arrest, fines and, in one case,
military detention (Article 6 para. 3 of the Military Penal Code) - for writing
or distributing publications considered as likely to undermine military
discipline within the meaning of Article 147 of the Military Penal Code.
Since a ministerial instruction, dated 19 November 1971, and thus subsequent to
the measures presently complained of, all cases involving a possible
infringement of Article 147 of the Military Penal Code have had to be submitted
to the military criminal courts (paragraph 14 above) and not to the disciplinary
authorities. The "Distribution of Writings Decree" of 21 December 1967,
mentioned above at paragraph 43, was repealed on 26 November 1971.
PROCEDURE BEFORE THE COMMISSION
52. The applications were lodged with the Commission on 6 July 1971 by Mr.
Engel, on 31 May 1971 by Mr. van der Wiel and Mr. de Wit, on 19 December 1971 by
Mr. Dona and on 29 December 1971 by Mr. Schul. On 10 February 1972, the
Commission decided to join the applications in accordance with the then Rule 39
of its Rules of Procedure.
In common with each other, the applicants complained that the penalties imposed
on them constituted deprivation of liberty contrary to Article 5 (art. 5) of the
Convention, that the proceedings before the military authorities and the Supreme
Military Court were not in conformity with the requirements of Article 6 (art.
6) and that the manner in which they were treated was discriminatory and in
breach of Article 14 read in conjunction with Articles 5 and 6 (art. 14+5, art.
14+6).
Mr. Engel also alleged a separate breach of Article 5 (art. 5) in connection
with his provisional arrest and a breach of Article 11 (art. 11) on the
particular facts of his case.
For their part, Mr. Dona and Mr. Schul contended that their interim custody had
been in disregard of Article 5 (art. 5) and that the punishment imposed on them
for having published and distributed articles deemed to undermine military
discipline had contravened Articles 10, 11, 14, 17 and 18 (art. 10, art. 11,
art. 14, art. 17, art. 18).
Furthermore, all five applicants claimed compensation.
The applications were declared admissible by the Commission on 17 July 1972
except that the complaint submitted by Mr. Engel under Article 11 (art. 11) was
rejected as being manifestly ill-founded (Article 27 para. 2) (art. 27-2).
In answer to certain objections made by the respondent Government during the
examination of the merits, the Commission decided on 29 May 1973 not to reject
under Article 29 (art. 29) two heads of complaint raised by Mr. Engel, Mr. Dona
and Mr. Schul on 21 June 1972 in support of their respective applications.
53. In its report of 19 July 1974 the Commission expressed the opinion:
- that the punishments of light arrest objected to by Mr. Engel and Mr. van der
Wiel did not amount to deprivation of liberty within the meaning of Article 5
(art. 5) of the Convention (eleven votes, with one abstention);
- that the other disciplinary punishments complained of by Mr. Engel, Mr. de
Wit, Mr. Dona and Mr. Schul had infringed Article 5 para. 1 (art. 5-1) since
none of the sub-paragraphs of this provision justified them (conclusion
following from a series of votes with various majorities);
- that there had also been violation of Article 5 para. 4 (art. 5-4) in that the
appeals by the four above-mentioned applicants against these same punishments
had not been "decided speedily" (eleven votes, with one abstention);
- that Mr. Engel's provisional arrest under Article 44 of the 1903 Act had, for
its part, contravened Article 5 para. 1 (art. 5-1) since it had exceeded the
period specified under Article 45 of the said Act (eleven votes, with one member
being absent);
- that Article 6 (art. 6) was not applicable to any of the disciplinary
proceedings concerned (ten votes against one, with one member being absent);
- that in the cases of Mr. Dona and Mr. Schul no breach either of Article 5
(art. 5) of the Convention in respect of their interim custody (Article 20 of
the 1903 Act) or of Articles 10, 11, 17 or 18 (art. 10, art. 11, art. 17, art.
18) of the Convention had been established (such conclusions following from
several votes with various majorities);
- that no violation of Article 14, whether read in conjunction with Articles 5,
6, 10 or 11 (art. 14+5, art. 14+6, art. 14+10, art. 14+11), had occurred in this
case (conclusion following from several votes with various majorities).
The report contains five separate opinions.
AS TO THE LAW
54. As the Government, Commission and applicants concurred in thinking, the
Convention applies in principle to members of the armed forces and not only to
civilians. It specifies in Articles 1 and 14 (art. 1, art. 14) that "everyone
within (the) jurisdiction" of the Contracting States is to enjoy "without
discrimination" the rights and freedoms set out in Section I. Article 4 para. 3
(b) (art. 4-3-b), which exempts military service from the prohibition against
forced or compulsory labour, further confirms that as a general rule the
guarantees of the Convention extend to servicemen. The same is true of Article
11 para. 2 (art. 11-2) in fine, which permits the States to introduce special
restrictions on the exercise of the freedoms of assembly and association by
members of the armed forces.
Nevertheless, when interpreting and applying the rules of the Convention in the
present case, the Court must bear in mind the particular characteristics of
military life and its effects on the situation of individual members of the
armed forces.
55. Having established these preliminary points, the Court will examine
successively, Article by Article, each of the complaints raised by all or
certain of the five applicants.
I. ON THE ALLEGED VIOLATIONS OF ARTICLE 5 (art. 5)
A. On the alleged violation of paragraph 1 of Article 5 (art. 5-1) taken alone
56. The applicants all submit that the disciplinary penalty or penalties,
measure of measures pronounced against them contravened Article 5 para. 1 (art.
5-1), which provides:
"Everyone has the right to liberty and security of person. No one shall be
deprived of his liberty save in the following cases and in accordance with a
procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non-compliance with the
lawful order of a court or in order to secure the fulfilment of any obligation
prescribed by law;
(c) 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 offence or when it is reasonably considered necessary to
prevent his committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of educational
supervision or his lawful detention for the purpose of bringing him before the
competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of
infectious diseases, of persons of unsound mind, alcoholics or drug addicts or
vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an
unauthorised entry into the country or of a person against whom action is being
taken with a view to deportation or extradition."
1. On the right to liberty in the context of military service
57. During the preparation and subsequent conclusion of the Convention, the
great majority of the Contracting States possessed defence forces and, in
consequence, a system of military discipline that by its very nature implied the
possibility of placing on certain of the rights and freedoms of the members of
these forces limitations incapable of being imposed on civilians. The existence
of such a system, which those States have retained since then, does not in
itself run counter to their obligations.
Military discipline, nonetheless, does not fall outside the scope of Article 5
para. 1 (art. 5-1). Not only must this provision be read in the light of
Articles 1 and 14 (art. 1, art. 14) (paragraph 54 above), but the list of
deprivations of liberty set out therein is exhaustive, as is shown by the words
"save in the following cases". A disciplinary penalty or measure may in
consequence constitute a breach of Article 5 para. 1 (art. 5-1). The Government,
moreover, acknowledge this.
58. In proclaiming the "right to liberty", paragraph 1 of Article 5 (art. 5-1)
is contemplating individual liberty in its classic sense, that is to say the
physical liberty of the person. Its aim is to ensure that no one should be
dispossessed of this liberty in an arbitrary fashion. As pointed out by the
Government and the Commission, it does not concern mere restrictions upon
liberty of movement (Article 2 of Protocol no. 4) (P4-2). This is clear both
from the use of the terms "deprived of his liberty", "arrest" and "detention",
which appear also in paragraphs 2 to 5, and from a comparison between Article 5
(art. 5) and the other normative provisions of the Convention and its Protocols.
59. In order to determine whether someone has been "deprived of his liberty"
within the meaning of Article 5 (art. 5), the starting point must be his
concrete situation. Military service, as encountered in the Contracting States,
does not on its own in any way constitute a deprivation of liberty under the
Convention, since it is expressly sanctioned in Article 4 para. 3 (b) (art.
4-3-b). In addition, rather wide limitations upon the freedom of movement of the
members of the armed forces are entailed by reason of the specific demands of
military service so that the normal restrictions accompanying it do not come
within the ambit of Article 5 (art. 5) either.
Each State is competent to organise its own system of military discipline and
enjoys in the matter a certain margin of appreciation. The bounds that Article 5
(art. 5) requires the State not to exceed are not identical for servicemen and
civilians. A disciplinary penalty or measure which on analysis would
unquestionably be deemed a deprivation of liberty were it to be applied to a
civilian may not possess this characteristic when imposed upon a serviceman.
Nevertheless, such penalty or measure does not escape the terms of Article 5
(art. 5) when it takes the form of restrictions that clearly deviate from the
normal conditions of life within the armed forces of the Contracting States. In
order to establish whether this is so, account should be taken of a whole range
of factors such as the nature, duration, effects and manner of execution of the
penalty or measure in question.
2. On the existence of deprivations of liberty in the present case
60. It is on the basis of these premises that the Court will examine whether
there has occurred in the present case one or more instances of deprivation of
liberty. In the Government's main submission, the question calls for a negative
reply as regards all the disputed penalties and measures (paragraphs 15-19 of
the memorial, and oral arguments), whereas in the Commission's view light arrest
alone raises no problem under Article 5 para. 1 (art. 5-1) (paragraphs 67-76 of
the report).
61. No deprivation of liberty resulted from the three and four days' light
arrest awarded respectively against Mr. Engel (paragraphs 34-36 above, second
punishment) and Mr. van der Wiel (paragraphs 37-39 above). Although confined
during off-duty hours to their dwellings or to military buildings or premises,
as the case may be, servicemen subjected to such a penalty are not locked up and
continue to perform their duties (Article 8 of the 1903 Act and paragraph 18
above). They remain, more or less, within the ordinary framework of their army
life.
62. Aggravated arrest differs from light arrest on one point alone: in off-duty
hours, soldiers serve the arrest in a specially designated place which they may
not leave in order to visit the canteen, cinema or recreation rooms, but they
are not kept under lock and key (Article 9-B of the 1903 Act and paragraph 19
above). Consequently, neither does the Court consider as a deprivation of
liberty the twelve days' aggravated arrest complained of by Mr. de Wit
(paragraph 41 above).
63. Strict arrest, abolished in 1974, differed from light arrest and aggravated
arrest in that non-commissioned officers and ordinary servicemen served it by
day and by night locked in a cell and were accordingly excluded from the
performance of their normal duties (Article 10-B of the 1903 Act and paragraph
20 above). It thus involved deprivation of liberty. It follows that the
provisional arrest inflicted on Mr. Engel in the form of strict arrest (Article
44 of the 1903 Act; paragraphs 26, 34 and 35 above) had the same character
despite its short duration (20-22 March 1971).
64. Committal to a disciplinary unit, likewise abolished in 1974 but applied in
1971 to Mr. Dona and Mr. Schul, represented the most severe penalty under
military disciplinary law in the Netherlands. Privates condemned to this penalty
following disciplinary proceedings were not separated from those so sentenced by
way of supplementary punishment under the criminal law, and during a month or
more they were not entitled to leave the establishment. The committal lasted for
a period of three to six months; this was considerably longer than the duration
of the other penalties, including strict arrest which could be imposed for one
to fourteen days. Furthermore, it appears that Mr. Dona and Mr. Schul spent the
night locked in a cell (Articles 5, 18 and 19 of the 1903 Act, Royal Decree of
14 June 1971 and paragraphs 21 and 50 above). For these various reasons, the
Court considers that in the circumstances deprivation of liberty occurred.
65. The same is not true of the measure that, from 8 October until 3 November
1971, preceded the said committal, since Mr. Dona and Mr. Schul served their
interim custody in the form of aggravated arrest (Article 20 of the 1903 Act;
paragraphs 22, 46, 48 and 62 above).
66. The Court thus comes to the conclusion that neither the light arrest of Mr.
Engel and Mr. van der Wiel, nor the aggravated arrest of Mr. de Wit, nor the
interim custody of Mr. Dona and Mr. Schul call for a more thorough examination
under paragraph 1 of Article 5 (art. 5-1).
The punishment of two days' strict arrest inflicted on Mr. Engel on 7 April 1971
and confirmed by the Supreme Military Court on 23 June 1971 coincided in
practice with an earlier measure: it was deemed to have been served beforehand,
that is from 20 to 22 March 1971, by the applicant's period of provisional
arrest (paragraphs 34-36 above, third punishment).
On the other hand, the Court is required to determine whether the last-mentioned
provisional arrest, as well as the committal of Mr. Dona and Mr. Schul to a
disciplinary unit, complied with Article 5 para. 1 (art. 5-1).
3. On the compatibility of the deprivations of liberty found in the present case
with paragraph 1 of Article 5 (art. 5-1)
67. The Government maintained, in the alternative, that the committal of Mr.
Dona and Mr. Schul to a disciplinary unit and the provisional arrest of Mr.
Engel satisfied, respectively, the requirements of sub-paragraph (a) and of
sub-paragraph (b) of Article 5 para. 1 (art. 5-1-a, art. 5-1-b) (paragraphs
21-23 of the memorial); they did not invoke sub-paragraphs (c) to (f) (art.
5-1-c, art. 5-1-d, art. 5-1-e, art. 5-1-f).
68. Sub-paragraph (a) of Article 5 para. 1 (art. 5-1-a) permits the "lawful
detention of a person after conviction by a competent court".
The Court, like the Government (hearing on 29 October 1975), notes that this
provision makes no distinction based on the legal character of the offence of
which a person has been found guilty. It applies to any "conviction" occasioning
deprivation of liberty pronounced by a "court", whether the conviction be
classified as criminal or disciplinary by the internal law of the State in
question.
Mr. Dona and Mr. Schul were indeed deprived of their liberty "after" their
conviction by the Supreme Military Court. Article 64 of the 1903 Act conferred a
suspensive effect upon their appeals against the decisions of their commanding
officer (8 October 1971) and the complaints officer (19 October 1971), a fact
apparently overlooked by the Commission (paragraph 85 and Appendix IV of the
report) but which the Government have rightly stressed (paragraph 21 of the
memorial). Consequently, their transfer to the disciplinary barracks at
Nieuwersluis occurred only by virtue of the final sentences imposed on 17
November 1971 (paragraphs 28, 48 and 50 above).
It remains to be ascertained that the said sentences were passed by a "competent
court" within the meaning of Article 5 para. 1 (a) (art. 5-1-a).
The Supreme Military Court, whose jurisdiction was not at all disputed,
constitutes a court from the organisational point of view. Doubtless its four
military members are not irremovable in law, but like the two civilian members
they enjoy the independence inherent in the Convention's notion of a "court" (De
Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, p. 41, para.
78, and paragraph 30 above).
Furthermore, it does not appear from the file in the case (paragraphs 31-32 and
48-49 above) that Mr. Dona and Mr. Schul failed to receive before the Supreme
Military Court the benefit of adequate judicial guarantees under Article 5 para.
1 (a) (art. 5-1-a), an autonomous provision whose requirements are not always
co-extensive with those of Article 6 (art. 6). The guarantees afforded to the
two applicants show themselves to be "adequate" for the purposes of Article 5
para. 1 (a) (art. 5-1-a) if account is taken of "the particular nature of the
circumstances" under which the proceedings took place (above-cited judgment of
18 June 1971, Series A no. 12, pp. 41-42, para. 78). As for Article 6 (art. 6),
the Court considers below whether it was applicable in this case and, if so,
whether it has been respected.
Finally, the penalty inflicted was imposed and then executed "lawfully" and "in
accordance with a procedure prescribed by law". In short, it did not contravene
Article 5 para. 1 (art. 5-1).
69. The provisional arrest of Mr. Engel for its part clearly does not come
within the ambit of sub-paragraph (a) of Article 5 para. 1 (art. 5-1-a).
The Government have derived argument from sub-paragraph (b) (art. 5-1-b) insofar
as the latter permits "lawful arrest or detention" intended to "secure the
fulfilment of any obligation prescribed by law".
The Court considers that the words "secure the fulfilment of any obligation
prescribed by law" concern only cases where the law permits the detention of a
person to compel him to fulfil a specific and concrete obligation which he has
until then failed to satisfy. A wide interpretation would entail consequences
incompatible with the notion of the rule of law from which the whole Convention
draws its inspiration (Golder judgment of 21 February 1975, Series A no. 18, pp.
16-17, para. 34). It would justify, for example, administrative internment meant
to compel a citizen to discharge, in relation to any point whatever, his general
duty of obedience to the law.
In fact, Mr. Engel's provisional arrest was in no way designed to secure the
fulfilment in the future of such an obligation. Article 44 of the 1903 Act,
applicable when an officer has "sufficient indication to suppose that a
subordinate has committed a serious offence against military discipline", refers
to past behaviour. The measure thereby authorised is a preparatory stage of
military disciplinary proceedings and is thus situated in a punitive context.
Perhaps this measure also has on occasions the incidental object or effect of
inducing a member of the armed forces to comply henceforth with his obligations,
but only with great contrivance can it be brought under sub-paragraph (b) (art.
5-1-b). If the latter were the case, this sub-paragraph could moreover be
extended to punishments stricto sensu involving deprivation of liberty on the
ground of their deterrent qualities. This would deprive such punishments of the
fundamental guarantees of sub-paragraph (a) (art. 5-1-a).
The said measure really more resembles that spoken of in sub- paragraph (c) of
Article 5 para. 1 (art. 5-1-c) of the Convention. However in the present case it
did not fulfil one of the requirements of that provision since the detention of
Mr. Engel from 20 to 22 March 1971 had not been "effected for the purpose of
bringing him before the competent legal authority" (paragraphs 86-88 of the
report of the Commission).
Neither was Mr. Engel's provisional arrest "lawful" within the meaning of
Article 5 para. 1 (art. 5-1) insofar as it exceeded - by twenty-two to thirty
hours according to the information provided at the hearing on 28 October 1975 -
the maximum period of twenty-four hours laid down by Article 45 of the 1903 Act.
According to the Government, the complaints officer redressed this irregularity
after the event by deeming to have been served in advance, that is from 20 to 22
March 1971, the disciplinary penalty of two days' strict arrest imposed by him
on the applicant on 5 April 1971 and confirmed by the Supreme Military Court on
23 June 1971. However, it is clear from the case-law of the European Court that
the reckoning of a detention on remand (Untersuchungshaft) as part of a later
sentence cannot eliminate a violation of paragraph 3 of Article 5 (art. 5-3),
but may have repercussions only under Article 50 (art. 50) on the basis that it
limited the loss occasioned (Stögmüller judgment of 10 November 1969, Series A
no. 9, pp. 27, 36 and 39-45; Ringeisen judgments of 16 July 1971 and 22 June
1972, Series A no. 13, pp. 20 and 41-45, and no. 15, p. 8, para. 21; Neumeister
judgment of 7 May 1974, Series A no. 17, pp. 18-19, paras. 40-41). The Court
sees no reason to resort to a different solution when assessing the
compatibility of Mr. Engel's provisional arrest with paragraph 1 of Article 5
(art. 5-1).
In conclusion, the applicant's deprivation of liberty from 20 to 22 March 1971
occurred in conditions at variance with this paragraph.
B. On the alleged violation of Articles 5 para. 1 and 14 (art. 14+5-1) taken
together
70. In the submission of the applicants, the disputed penalties and measures
also contravened Article 5 para. 1 read in conjunction with Article 14 (art.
14+5-1) which provides:
"The enjoyment of the rights and freedoms set forth in this Convention shall be
secured without discrimination on any ground such as sex, race, colour,
language, religion, political or other opinion, national or social origin,
association with a national minority, property, birth or other status."
71. Since certain of the said penalties and measures did not involve any
deprivation of liberty (paragraphs 61, 62 and 65 above), the discrimination
alleged in their connection does not give rise to any problem with regard to
Article 14 (art. 14), in that it did not affect the enjoyment of the right set
forth in Article 5 para. 1 (art. 5-1). The same does not apply to Mr. Engel's
provisional arrest, nor to the committal of Mr. Dona and Mr. Schul to a
disciplinary unit (paragraphs 63 and 64 above).
72. Mr. Engel, Mr. Dona and Mr. Schul complain in the first place of
distinctions in treatment between servicemen. According to Articles 10 and 44 of
the 1903 Act, provisional arrest imposed in the form of strict arrest was served
by officers in their dwellings, tent or quarters whereas non-commissioned
officers and ordinary servicemen were locked in a cell (paragraph 20 above). As
for committal to a disciplinary unit, privates alone risked this punishment
(Articles 3 to 5 of the 1903 Act and paragraphs 16 and 21 above).
A distinction based on rank may run counter to Article 14 (art. 14). The list
set out in that provision is illustrative and not exhaustive, as is shown by the
words "any ground such as" (in French "notamment"). Besides, the word "status"
(in French "situation") is wide enough to include rank. Furthermore, a
distinction that concerns the manner of execution of a penalty or measure
occasioning deprivation of liberty does not on that account fall outside the
ambit of Article 14 (art. 14), for such a distinction cannot but have
repercussions upon the way in which the "enjoyment" of the right enshrined in
Article 5 para. 1 (art. 5-1) is "secured". The Court, on these two points, does
not subscribe to the submissions of the Government (paragraph 40, first
sub-paragraph, of the Commision's report), but rather expresses its agreement
with the Commission (ibid., paragraphs 133-134).
The Court is not unaware that the respective legislation of a number of
Contracting States seems to be evolving, albeit in various degrees, towards
greater equality in the disciplinary sphere between officers, non-commissioned
officers and ordinary servicemen. The Netherlands Act of 12 September 1974
offers a striking example of this tendency. In particular, by abolishing strict
arrest and committal to a disciplinary unit, this Act has henceforth put an end
to the distinctions criticised by Mr. Engel, Mr. Dona and Mr. Schul.
In order to establish whether the said distinctions constituted discrimination
contrary to Articles 5 and 14 (art. 14+5) taken together, regard must
nevertheless be had to the moment when they were in existence. The Court will
examine the question in the light of its judgment of 23 July 1968 in the
"Belgian Linguistic" case (Series A no. 6, pp. 33-35, paras. 9-10).
The hierarchical structure inherent in armies entails differentiation according
to rank. Corresponding to the various ranks are differing responsibilities which
in their turn justify certain inequalities of treatment in the disciplinary
sphere. Such inequalities are traditionally encountered in the Contracting
States and are tolerated by international humanitarian law (paragraph 140 of the
Commission's report: Article 88 of the Geneva Convention of 12 August 1949
relative to the Treatment of Prisoners of War). In this respect,the European
Convention allows the competent national authorities a considerable margin of
appreciation.
At the time in question, the distinctions attacked by the three applicants had
their equivalent in the internal legal system of practically all the Contracting
States. Based on an element objective in itself, that is rank, these
distinctions could have been dictated by a legitimate aim, namely the
preservation of discipline by methods suited to each category of servicemen.
While only privates risked committal to a disciplinary unit, they clearly were
not subject to a serious penalty threatening the other members of the armed
forces, namely reduction in rank. As for confinement in a cell during strict
arrest, the Netherlands legislator could have had sufficient reason for not
applying this to officers. On the whole, the legislator does not seem in the
circumstances to have abused the latitude left to him by the Convention.
Furthermore, the Court does not consider that the principle of proportionality,
as defined in its previously cited judgment of 23 July 1968 (Series A no. 6, p.
34, para. 10, second sub-paragraph in fine), has been offended in the present
case.
73. Mr. Engel, Mr. Dona and Mr. Schul in the second place object to inequalities
of treatment between servicemen and civilians. In point of fact, even civilians
subject by reason of their occupation to a particular disciplinary system cannot
in the Netherlands incur penalties analogous to the disputed deprivations of
liberty. However, this does not result in any discrimination incompatible with
the Convention, the conditions and demands of military life being by nature
different from those of civil life (paragraphs 54 and 57 above).
74. The Court thus finds no breach of Articles 5 para. 1 and 14 (art. 14+5-1)
taken together.
C. On the alleged violation of Article 5 para. 4 (art. 5-4)
75. In addition to paragraph 1 of Article 5 (art. 5-1), the applicants invoke
paragraph 4 (art. 5-4) which provides:
"Everyone who is deprived of his liberty by arrest or detention shall be
entitled to take proceedings by which the lawfulness of his detention shall be
decided speedily by a court and his release ordered if the detention is not
lawful."
76. This question arises only for the committal of Mr. Dona and Mr. Schul to a
disciplinary unit. Mr. Engel did not raise it, even from the factual aspect, as
regards his provisional arrest; as for the other penalties or measures
challenged, they had not "deprived" anyone "of his liberty by arrest or
detention" (paragraphs 61-66 above).
77. The Court recalls that the committal of Mr. Dona and Mr. Schul to a
disciplinary unit ensued from their "conviction by a competent court", within
the meaning of Article 5 para. 1 (a) (art. 5-1-a) (paragraph 68 above). While
"Article 5 para. 4 (art. 5-4) obliges the Contracting States to make available
... a right of recourse to a court" when "the decision depriving a person of his
liberty is one taken by an administrative body", "there is nothing to indicate
that the same applies when the decision is made by a court at the close of
judicial proceedings". "In the latter case", as for example, "where a sentence
of imprisonment is pronounced after 'conviction by a competent court' (Article 5
para. 1 (a) of the Convention) (art. 5-1-a)", "the supervision required by
Article 5 para. 4 (art. 5-4) is incorporated in the decision" (De Wilde, Ooms
and Versyp judgment of 18 June 1971, Series A no. 12, pp. 40-41, para. 76). The
Court, like the Government (paragraph 21 of the memorial), thus concludes that
there was no breach of Article 5 para. 4 (art. 5-4) in the case of Mr. Dona and
Mr. Schul.
II. ON THE ALLEGED VIOLATIONS OF ARTICLE 6 (art. 6)
A. On the alleged violation of Article 6 (art. 6) taken alone
78. The five applicants allege violation of Article 6 (art. 6) which provides:
"1. In the determination of his civil rights and obligations or of any criminal
charge against him, everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal established by law.
Judgment shall be pronounced publicly but the press and public may be excluded
from all or part of the trial in the interests of morals, public order or
national security in a democratic society, where the interests of juveniles or
the protection of the private life of the parties so require, or to the extent
strictly necessary in the opinion of the court in special circumstances where
publicity would prejudice the interests of justice.
2. Everyone charged with a criminal offence shall be presumed innocent until
proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail,
of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing
or, if he has not sufficient means to pay for legal assistance, to be given it
free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the
attendance and examination of witnesses on his behalf under the same conditions
as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or
speak the language used in court."
79. For both the Government and the Commission, the proceedings brought against
Mr. Engel, Mr. van der Wiel, Mr. de Wit, Mr. Dona and Mr. Schul involved the
determination neither of "civil rights and obligations" nor of "any criminal
charge".
Led thus to examine the applicability of Article 6 (art. 6) in the present case,
the Court will first investigate whether the said proceedings concerned "any
criminal charge" within the meaning of this text; for, although disciplinary
according to Netherlands law, they had the aim of repressing through penalties
offences alleged against the applicants, an objective analogous to the general
goal of the criminal law.
1. On the applicability of Article 6 (art. 6)
(a) On the existence of "any criminal charge"
80. All the Contracting States make a distinction of long standing, albeit in
different forms and degrees, between disciplinary proceedings and criminal
proceedings. For the individuals affected, the former usually offer substantial
advantages in comparison with the latter, for example as concerns the sentences
passed. Disciplinary sentences, in general less severe, do not appear in the
person's criminal record and entail more limited consequences. It may
nevertheless be otherwise; moreover, criminal proceedings are ordinarily
accompanied by fuller guarantees.
It must thus be asked whether or not the solution adopted in this connection at
the national level is decisive from the standpoint of the Convention. Does
Article 6 (art. 6) cease to be applicable just because the competent organs of a
Contracting State classify as disciplinary an act or omission and the
proceedings it takes against the author, or does it, on the contrary, apply in
certain cases notwithstanding this classification? This problem, the importance
of which the Government acknowledge, was rightly raised by the Commission; it
particularly occurs when an act or omission is treated by the domestic law of
the respondent State as a mixed offence, that is both criminal and disciplinary,
and where there thus exists a possibility of opting between, or even cumulating,
criminal proceedings and disciplinary proceedings.
81. The Court has devoted attention to the respective submissions of the
applicants, the Government and the Commission concerning what they termed the
"autonomy" of the concept of a "criminal charge", but does not entirely
subscribe to any of these submissions (report of the Commission, paragraphs
33-34, paragraphs 114-119 and the separate opinion of Mr. Welter; memorial of
the Government, paragraphs 25-34; memorial of the Commission, paragraphs 9-16,
paragraphs 14-17 of Annex I and paragraphs 12-14 of Annex II; verbatim report of
the hearings on 28 and 29 October 1975).
In the Neumeister judgment of 27 June 1968, the Court has already held that the
word "charge" must be understood "within the meaning of the Convention" (Series
A no. 8, p. 41, para. 18, as compared with the second sub-paragraph on p. 28 and
the first sub-paragraph on p. 35; see also the Wemhoff judgment of 27 June 1968,
Series A no. 7, pp. 26-27, para. 19, and the Ringeisen judgment of 16 July 1971,
Series A no. 13, p. 45, para. 110).
The question of the "autonomy" of the concept of "criminal" does not call for
exactly the same reply.
The Convention without any doubt allows the States, in the performance of their
function as guardians of the public interest, to maintain or establish a
distinction between criminal law and disciplinary law, and to draw the dividing
line, but only subject to certain conditions. The Convention leaves the States
free to designate as a criminal offence an act or omission not constituting the
normal exercise of one of the rights that it protects. This is made especially
clear by Article 7 (art. 7). Such a choice, which has the effect of rendering
applicable Articles 6 and 7 (art. 6, art. 7), in principle escapes supervision
by the Court.
The converse choice, for its part, is subject to stricter rules. If the
Contracting States were able at their discretion to classify an offence as
disciplinary instead of criminal, or to prosecute the author of a "mixed"
offence on the disciplinary rather than on the criminal plane, the operation of
the fundamental clauses of Articles 6 and 7 (art. 6, art. 7) would be
subordinated to their sovereign will. A latitude extending thus far might lead
to results incompatible with the purpose and object of the Convention. The Court
therefore has jurisdiction, under Article 6 (art. 6) and even without reference
to Articles 17 and 18 (art. 17, art. 18), to satisfy itself that the
disciplinary does not improperly encroach upon the criminal.
In short, the "autonomy" of the concept of "criminal" operates, as it were, one
way only.
82. Hence, the Court must specify, limiting itself to the sphere of military
service, how it will determine whether a given "charge" vested by the State in
question - as in the present case - with a disciplinary character nonetheless
counts as "criminal" within the meaning of Article 6 (art. 6).
In this connection, it is first necessary to know whether the provision(s)
defining the offence charged belong, according to the legal system of the
respondent State, to criminal law, disciplinary law or both concurrently. This
however provides no more than a starting point. The indications so afforded have
only a formal and relative value and must be examined in the light of the common
denominator of the respective legislation of the various Contracting States.
The very nature of the offence is a factor of greater import. When a serviceman
finds himself accused of an act or omission allegedly contravening a legal rule
governing the operation of the armed forces, the State may in principle employ
against him disciplinary law rather than criminal law. In this respect, the
Court expresses its agreement with the Government.
However, supervision by the Court does not stop there. Such supervision would
generally prove to be illusory if it did not also take into consideration the
degree of severity of the penalty that the person concerned risks incurring. In
a society subscribing to the rule of law, there belong to the "criminal" sphere
deprivations of liberty liable to be imposed as a punishment, except those which
by their nature, duration or manner of execution cannot be appreciably
detrimental. The seriousness of what is at stake, the traditions of the
Contracting States and the importance attached by the Convention to respect for
the physical liberty of the person all require that this should be so (see,
mutatis mutandis, the De Wilde, Ooms and Versyp judgment of 18 June 1971, Series
A no. 12, p. 36, last sub-paragraph, and p. 42 in fine).
83. It is on the basis of these criteria that the Court will ascertain whether
some or all of the applicants were the subject of a "criminal charge" within the
meaning of Article 6 para. 1 (art. 6-1).
In the circumstances, the charge capable of being relevant lay in the decision
of the commanding officer as confirmed or reduced by the complaints officer. It
was undoubtedly this decision that settled once and for all what was at stake,
since the tribunal called upon to give a ruling, that is the Supreme Military
Court, had no jurisdiction to pronounce a harsher penalty (paragraph 31 above).
84. The offences alleged against Mr. Engel, Mr. van der Wiel, Mr. de Wit, Mr.
Dona and Mr. Schul came within provisions belonging to disciplinary law under
Netherlands legislation (the 1903 Act and Regulations on Military Discipline),
although those to be answered for by Mr. Dona and Mr. Schul (Article 147 of the
Military Penal Code), and perhaps even by Mr. Engel and Mr. de Wit (Articles 96
and 114 of the said Code according to Mr. van der Schans, hearing on 28 October
1975), also lent themselves to criminal proceedings. Furthermore, all the
offences had amounted, in the view of the military authorities, to
contraventions of legal rules governing the operation of the Netherlands armed
forces. From this aspect, the choice of disciplinary action was justified.
85. The maximum penalty that the Supreme Military Court could pronounce
consisted in four days' light arrest for Mr. van der Wiel, two days' strict
arrest for Mr. Engel (third punishment) and three or four months' committal to a
disciplinary unit for Mr. de Wit, Mr. Dona and Mr. Schul.
Mr. van der Wiel was therefore liable only to a light punishment not occasioning
deprivation of liberty (paragraph 61 above).
For its part, the penalty involving deprivation of liberty that in theory
threatened Mr. Engel was of too short a duration to belong to the "criminal"
law. He ran no risk, moreover, of having to undergo this penalty at the close of
the proceedings instituted by him before the Supreme Military Court on 7 April
1971, since he had already served it from 20 to 22 March (paragraphs 34-36, 63
and 66 above).
On the other hand, the "charges" against Mr. de Wit, Mr. Dona and Mr. Schul did
indeed come within the "criminal" sphere since their aim was the imposition of
serious punishments involving deprivation of liberty (paragraph 64 above). The
Supreme Military Court no doubt sentenced Mr. de Wit to twelve days' aggravated
arrest only, that is to say, to a penalty not occasioning deprivation of liberty
(paragraph 62 above), but the final outcome of the appeal cannot diminish the
importance of what was initially at stake.
The Convention certainly did not compel the competent authorities to prosecute
Mr. de Wit, Mr. Dona and Mr. Schul under the Military Penal Code before a court
martial (paragraph 14 above), a solution which could have proved less
advantageous for the applicants. The Convention did however oblige the
authorities to afford them the guarantees of Article 6 (art. 6).
(b) On the existence of a "determination" of "civil rights"
86. Three of the five applicants allege, in the alternative, that the
proceedings instituted against them concerned the "determination" of "civil
rights": Mr. Engel characterises as "civil" his freedom of assembly and
association (Article 11) (art. 11), Mr. Dona and Mr. Schul their freedom of
expression (Article 10) (art. 10).
87. Article 6 (art. 6) proves less exacting for the determination of such rights
than for the determination of "criminal charges"; for, while paragraph 1 (art.
6-1) applies to both matters, paragraphs 2 and 3 (art. 6-2, art. 6-3) protect
only persons "charged with a criminal offence". Since Mr. Dona and Mr. Schul
were the subject of "criminal charges" (paragraph 85 in fine above), Article 6
(art. 6) applied to them in its entirety. The Court considers it superfluous to
see whether paragraph 1 (art. 6-1) was relevant on a second ground, since the
question is devoid of any practical interest.
As for Mr. Engel, who had not been "charged with a criminal offence" (paragraph
85 above, third sub-paragraph), the proceedings brought against him were
occasioned solely by offences against military discipline, namely having
absented himself from his home on 17 March 1971 and subsequently having
disregarded the penalties imposed on him on the following two days. In these
circumstances, there is no need to give any ruling in the present case as to
whether the freedom of assembly and association is "civil".
88. In short, it is the duty of the Court to examine under Article 6 (art. 6)
the treatment meted out to Mr. de Wit, Mr. Dona and Mr. Schul, but not that
complained of by Mr. Engel and Mr. van der Wiel.
2. On compliance with Article 6 (art. 6)
89. The Supreme Military Court, before which appeared Mr. de Wit, Mr. Dona and
Mr. Schul, constitutes an "independent and impartial tribunal established by
law" (paragraphs 30 and 68 above) and there is nothing to indicate that it
failed to give them a "fair hearing". For its part, the "time" that elapsed
between the "charge" and the final decision appears "reasonable". It did not
amount to six weeks for Mr. Dona and Mr. Schul (8 October - 17 November 1971)
and hardly exceeded two months for Mr. de Wit (22 February - 28 April 1971).
Furthermore, the sentence was "pronounced publicly".
In contrast, the hearings in the presence of the parties had taken place in
camera in accordance with the established practice of the Supreme Military Court
in disciplinary proceedings (paragraph 31 above). In point of fact, the
applicants do not seem to have suffered on that account; indeed the said Court
improved the lot of two of their number, namely Mr. Schul and, to an even
greater extent, Mr. de Wit. Nevertheless, in the field it governs, Article 6
para. 1 (art. 6-1) requires in a very general fashion that judicial proceedings
be conducted in public. Article 6 (art. 6) of course makes provision for
exceptions which it lists, but the Government did not plead, and it does not
emerge from the file, that the circumstances of the case amounted to one of the
occasions when the Article allows "the press and the public (to be) excluded".
Hence, on this particular point, there has been violation of paragraph 1 of
Article 6 (art. 6-1).
90. Mr. Dona and Mr. Schul complain that the Supreme Military Court took account
of their participation in the publication, prior to no. 8 of "Alarm", of two
writings whose distribution had only been provisionally forbidden under the
"Distribution of Writings Decree" and for which they had never been prosecuted
(paragraph 49 above). The Supreme Military Court, it is alleged, thereby
disregarded the presumption of innocence proclaimed by paragraph 2 of Article 6
(art. 6-2) (report of the Commission, paragraph 45, antepenultimate
sub-paragraph).
In reality, this clause does not have the scope ascribed to it by the two
applicants. As its wording shows, it deals only with the proof of guilt and not
with the kind or level of punishment. It thus does not prevent the national
judge, when deciding upon the penalty to impose on an accused lawfully convicted
of the offence submitted to his adjudication, from having regard to factors
relating to the individual's personality.
Before the Supreme Military Court Mr. Dona and Mr. Schul were "proved guilty
according to law" as concerns the offences there alleged against them (no. 8 of
"Alarm"). It was for the sole purpose of determining their punishment in the
light of their character and previous record that the said Court also took into
consideration certain similar, established facts the truth of which they did not
challenge. The Court did not punish them for these facts in themselves (Article
37 of the 1903 Act and the memorial filed by the Government with the Commission
on 24 August 1973).
91. Mr. de Wit, Mr. Dona and Mr. Schul do not deny that sub-paragraph (a) of
paragraph 3 of Article 6 (art. 6-3-a) has been complied with in their regard and
they are evidently not relying upon sub-paragraph (e) (art. 6-3-e). On the other
hand, they claim not to have enjoyed the guarantees prescribed by sub-paragraphs
(b), (c) and (d) (art. 6-3-b, art. 6-3-c, art. 6-3-d).
Their allegations, however, prove far too vague to lead the Court to conclude
that they did not "have adequate time and facilities for the preparation of
(their) defence" within the meaning of sub-paragraph (b) (art. 6-3-b).
Then again, each of the three applicants has had the opportunity "to defend
himself in person" at the various stages of the proceedings. They have
furthermore received the benefit before the Supreme Military Court and, in Mr.
de Wit's case, before the complaints officer, of "legal assistance of (their)
own choosing", in the form of a fellow conscript who was a lawyer in civil life.
Mr. Eggenkamp's services were, it is true, limited to dealing with the legal
issues in dispute. In the circumstances of the case, this restriction could
nonetheless be reconciled with the interests of justice since the applicants
were certainly not incapable of personally providing explanations on the very
simple facts of the charges levelled against them. Consequently, no interference
with the right protected by sub-paragraph (c) (art. 6-3-c) emerges from the file
in this case.
Neither does the information obtained by the Court, in particular on the
occasion of the hearings on 28 and 29 October 1975, disclose any breach of
sub-paragraph (d) (art. 6-3-d). Notwithstanding the contrary opinion of the
applicants, this provision does not require the attendance and examination of
every witness on the accused's behalf. Its essential aim, as is indicated by the
words "under the same conditions", is a full "equality of arms" in the matter.
With this proviso, it leaves it to the competent national authorities to decide
upon the relevance of proposed evidence insofar as is compatible with the
concept of a fair trial which dominates the whole of Article 6 (art. 6). Article
65 of the 1903 Act and Article 56 of the "Provisional Instructions" of 20 July
1814 place the prosecution and the defence on an equal footing: witnesses for
either party are summoned only if the complaints officer or the Supreme Military
Court deems it necessary. As concerns the way in which this legislation was
applied in the present case, the Court notes that no hearing of witnesses
against the accused occurred before the Supreme Military Court in the case of
Mr. de Wit, Mr. Dona and Mr. Schul and that it does not appear from the file in
the case that these applicants requested the said Court to hear witnesses on
their behalf. Doubtless Mr. de Wit objects that the complaints officer heard
only one of the three witnesses on his behalf allegedly proposed by him, but
this fact in itself cannot justify the finding of a breach of Article 6 para. 3
(d) (art. 6-3-d).
B. On the alleged violation of Articles 6 and 14 (art. 14+6) taken together
92. According to the applicants, the disciplinary proceedings of which they
complain did not comply with Articles 6 and 14 (art. 14+6) taken together since
they were not attended by as many guarantees as criminal proceedings brought
against civilians (report of the Commission, paragraph 37).
Whilst military disciplinary procedure is not attended by the same guarantees as
criminal proceedings brought against civilians, it offers on the other hand
substantial advantages to those subject to it (paragraph 80 above). The
distinctions between these two types of proceedings in the legislation of the
Contracting States are explicable by the differences between the conditions of
military and of civil life. They cannot be taken as entailing a discrimination
against members of the armed forces, within the meaning of Articles 6 and 14
(art. 14+6) taken together.
C. On the alleged violation of Articles 6 and 18 (art. 18+6) taken together
93. According to Mr. Dona and Mr. Schul, the decision to take disciplinary
rather than criminal proceedings against them had the result, or even the aim,
of depriving them of the benefit of Article 6 (art. 6). The choice made by the
competent authorities allegedly had an arbitrary nature that cannot be
reconciled with Article 18 (art. 18) (report of the Commission, paragraph 53).
The Court's conclusions on the applicability and observance of Article 6 (art.
6) in the case of these two applicants (paragraphs 85 and 89-91 above) make it
unnecessary for it to rule on this complaint.
III. ON THE ALLEGED VIOLATIONS OF ARTICLE 10 (art. 10)
A. On the alleged violation of Article 10 (art. 10) taken alone
94. Mr. Dona and Mr. Schul allege violation of Article 10 (art. 10) which
provides:
"1. Everyone has the right to freedom of expression. This right shall include
freedom to hold opinions and to receive and impart information and ideas without
interference by public authority and regardless of frontiers. This Article (art.
10) shall not prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions, restrictions
or penalties as are prescribed by law and are necessary in a democratic society,
in the interests of national security, territorial integrity or public safety,
for the prevention of disorder or crime, for the protection of health or morals,
for the protection of the reputation or rights of others, for preventing the
disclosure of information received in confidence, or for maintaining the
authority and impartiality of the judiciary."
The complaint, as declared admissible by the Commission, concerns solely the
disciplinary punishment undergone by the applicants after 17 November 1971 for
having collaborated in the publication and distribution of no. 8 of "Alarm". It
does not relate to the prohibition under the "Distribution of Writings Decree"
of this number, of no. 6 of "Alarm" and of the "Information Bulletin" for new
recruits nor to the strict arrest imposed on the applicants on 13 August 1971
for their participation in distributing a pamphlet during the incidents at
Ermelo (paragraphs 43-45 above).
95. The disputed penalty unquestionably represented an "interference" with the
exercise of the freedom of expression of Mr. Dona and Mr. Schul, as guaranteed
by paragraph 1 of Article 10 (art. 10-1). Consequently, an examination under
paragraph 2 (art. 10-2) is called for.
96. The penalty was without any doubt "prescribed by law", that is by Articles 2
para. 2, 5-A-8°, 18, 19 and 37 of the 1903 Act, read in conjunction with the
Article 147 of the Military Penal Code. Even in regard to the part played by the
accused in the editing and distribution, prior to no. 8 of "Alarm", of writings
prohibited by the military authorities, the punishment was based on the 1903 Act
(paragraph 90 above) and not on the "Distribution of Writings Decree". The Court
thus does not have to consider the applicants' submissions on the validity of
this decree (report of the Commission, paragraph 45, fifth sub-paragraph).
97. To show that the interference at issue also met the other conditions of
paragraph 2 of Article 10 (art. 10-2), the Government pleaded that the measures
taken in this case were "necessary in a democratic society", "for the prevention
of disorder". They relied on Article 10 para. 2 (art. 10-2) only with reference
to this requirement.
98. The Court firstly emphasises, like the Government and the Commission, that
the concept of "order" as envisaged by this provision, refers not only to public
order or "ordre public" within the meaning of Articles 6 para. 1 and 9 para. 2
(art. 6-1, art. 9-2) of the Convention and Article 2 para. 3 of Protocol no. 4
(P4-2-3): it also covers the order that must prevail within the confines of a
specific social group. This is so, for example, when, as in the case of the
armed forces, disorder in that group can have repercussions on order in society
as a whole. It follows that the disputed penalties met this condition if and to
the extent that their purpose was the prevention of disorder within the
Netherlands armed forces.
Mr. Dona and Mr. Schul admittedly maintain that Article 10 para. 2 (art. 10-2)
takes account of the "prevention of disorder" only in combination with the
"prevention of crime". The Court does not share this view. While the French
version uses the conjunctive "et", the English employs the disjunctive "or".
Having regard to the context and the general system of Article 10 (art. 10), the
English version provides a surer guide on this point. Under these conditions,
the Court deems it unnecessary to examine whether the applicants' treatment was
aimed at the "prevention of crime" in addition to the "prevention of disorder".
99. It remains to be seen whether the interference with the freedom of
expression of Mr. Dona and Mr. Schul was "necessary in a democratic society",
"for the prevention of disorder".
100. Of course, the freedom of expression guaranteed by Article 10 (art. 10)
applies to servicemen just as it does to other persons within the jurisdiction
of the Contracting States. However, the proper functioning of an army is hardly
imaginable without legal rules designed to prevent servicemen from undermining
military discipline, for example by writings. Article 147 of the Netherlands
Military Penal Code (paragraph 43 above) is based on this legitimate requirement
and does not in itself run counter to Article 10 (art. 10) of the Convention.
The Court doubtless has jurisdiction to supervise, under the Convention, the
manner in which the domestic law of the Netherlands has been applied in the
present case, but it must not in this respect disregard either the particular
characteristics of military life (paragraph 54 in fine above), the specific
"duties" and "responsibilities" incumbent on members of the armed forces, or the
margin of appreciation that Article 10 para. 2 (art. 10-2), like Article 8 para.
2 (art. 8-2), leaves to the Contracting States (De Wilde, Ooms and Versyp
judgment of 18 June 1971, Series A no. 12, p. 45, para. 93, and Golder judgment
of 21 February 1975, Series A no. 18, p. 22).
101. The Court notes that the applicants contributed, at a time when the
atmosphere in the barracks at Ermelo was somewhat strained, to the publication
and distribution of a writing the relevant extracts from which are reproduced
above (paragraphs 43 and 51 above). In these circumstances the Supreme Military
Court may have had well-founded reasons for considering that they had attempted
to undermine military discipline and that it was necessary for the prevention of
disorder to impose the penalty inflicted. There was thus no question of
depriving them of their freedom of expression but only of punishing the abusive
exercise of that freedom on their part. Consequently, it does not appear that
its decision infringed Article 10 para. 2 (art. 10-2).
B. On the alleged violation of Articles 10 and 14 (art. 14+10) taken together
102. Mr. Dona and Mr. Schul allege a dual breach of Articles 10 and 14 (art.
14+10) taken together. They stress that a civilian in the Netherlands in a
comparable situation does not risk the slightest penalty. In addition, they
claim to have been punished more severely than a number of Netherlands
servicemen, not belonging to the V.V.D.M., who had also been prosecuted for
writing or distributing material likely to undermine military discipline.
103. On the first question, the Court emphasises that the distinction at issue
is explicable by the differences between the conditions of military and of civil
life and, more specifically, by the "duties" and "responsibilities" peculiar to
members of the armed forces in the field of freedom of expression (paragraphs 54
and 100 above). On the second question, the Court points out that in principle
it is not its function to compare different decisions of national courts, even
if given in apparently similar proceedings; it must, just like the Contracting
States, respect the independence of those courts. Such a decision would actually
become discriminatory in character if it were to depart from others to the point
of constituting a denial of justice or a manifest abuse, but the information
supplied to the Court does not permit a finding of this sort.
C. On the alleged violation of Article 10 taken with Articles 17 and 18 (art.
17+10, art. 18+10)
104. Mr. Dona and Mr. Schul further claim that, contrary to Articles 17 and 18
(art. 17, art. 18), the exercise of their freedom of expression was subject to
"limitation to a greater extent than is provided for" in Article 10 (art. 10)
and for a "purpose" not mentioned therein.
This complaint does not support examination since the Court has already
concluded that the said limitation was justified under paragraph 2 of Article 10
(art. 10-2) (paragraphs 96-101 above).
IV. ON THE ALLEGED VIOLATION OF ARTICLE 11 (art. 11)
105. According to Mr. Dona and Mr. Schul, after their cases, many conscripts who
were members of the V.V.D.M. incurred penalties for having written and/or
distributed publications tending to undermine discipline, within the meaning of
Article 147 of the Military Penal Code. In their submission, these were
systematic measures calculated to impede the functioning of the V.V.D.M.,
thereby infringing Article 11 (art. 11) of the Convention which provides:
"1. Everyone has the right to freedom of peaceful assembly and to freedom of
association with others, including the right to form and to join trade unions
for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than
such as are prescribed by law and are necessary in a democratic society in the
interests of national security or public safety, for the prevention of disorder
or crime, for the protection of health or morals or for the protection of the
rights and freedoms of others. This Article shall not prevent the imposition of
lawful restrictions on the exercise of these rights by members of the armed
forces, of the police or of the administration of the State."
106. The Court may take into consideration only the case of the two applicants
and not the situation of other persons or of an association not having
authorised them to lodge an application with the Commission in their name (De
Becker judgment of 27 March 1962, Series A no. 4, p. 26 in fine, and Golder
judgment of 21 February 1975, Series A no. 18, p. 19, para. 39 in fine).
107. Insofar as Mr. Dona and Mr. Schul rely also upon their own freedom of
association, the Court finds that they were not punished by reason either of
their membership of the V.V.D.M. or of their participation in its activities,
including preparation and publication of the journal "Alarm". While the Supreme
Military Court punished them, it was only because it considered that they had
made use of their freedom of expression with a view to undermining military
discipline.
108. In view of the absence of any interference with the right of the two
applicants under paragraph 1 of Article 11 (art. 11-1), the Court does not have
to consider paragraph 2 (art. 11-2), or Articles 14, 17 and 18 (art. 14, art.
17, art. 18).
V. ON THE APPLICATION OF ARTICLE 50 (art. 50)
109. Under Article 50 (art. 50) of the Convention, if the Court finds "that a
decision or measure taken" by any authority of a Contracting State "is
completely or partially in conflict with the obligations arising from the ...
Convention, and if the internal law of the said (State) allows only partial
reparation to be made for the consequences of this decision or measure", the
Court "shall if necessary afford just satisfaction to the injured party".
The Rules of Court specify that when the Court "finds that there is a breach of
the Convention, it shall give in the same judgment a decision on the application
of Article 50 (art. 50) of the Convention if that question, after being raised
under Rule 47 bis, is ready for decision; if the question is not ready for
decision, the Court shall reserve it in whole or in part and shall fix the
further procedure" (Rule 50 para. 3, first sentence, read in conjunction with
Rule 48 para. 3).
110. At the hearing on 29 October 1975, the Court, pursuant to Rule 47 bis,
invited those appearing before it to present observations on the question of the
application of Article 50 (art. 50) in the present case.
It emerges from the reply of the Commission's principal delegate that the
applicants make no claim for compensation for material damage. However, they
expect to be granted just satisfaction should the Court find failure to comply
with the requirements of the Convention in one or more instances, but they do
not for the moment indicate the amount of their claim were such satisfaction to
take the form of financial compensation.
On their side the Government, through their Agent, declared that they left this
point completely to the discretion of the Court.
111. The question of the application of Article 50 (art. 50) of the Convention
does not arise in the case of Mr. van der Wiel, or for those complaints of Mr.
Engel, Mr. de Wit, Mr. Dona and Mr. Schul which the Court has not retained. On
the other hand, it does arise for the breach of Article 5 para. 1 (art. 5-1) in
the case of Mr. Engel and of Article 6 para. 1 (art. 6-1) in that of Mr. de Wit,
Mr. Dona and Mr. Schul (paragraphs 69 and 89 above). The information supplied by
the Commission's principal delegate shows however that the question is not ready
for decision; it is therefore appropriate to reserve the question and to fix the
further procedure in connection therewith.
FOR THESE REASONS, THE COURT,
1. Holds, unanimously, that Article 5 (art. 5) was not applicable to the light
arrest of Mr. Engel (second punishment) and of Mr. van der Wiel;
2. Holds, by twelve votes to one, that it was also not applicable to the
aggravated arrest of Mr. de Wit, or to the interim aggravated arrest of Mr. Dona
and Mr. Schul;
3. Holds, by eleven votes to two, that the committal of Mr. Dona and Mr. Schul
to a disciplinary unit did not violate Article 5 para. 1 (art. 5-1);
4. Holds, by nine votes to four, that the whole period of Mr. Engel's
provisional strict arrest violated Article 5 para. 1 (art. 5-1), since no
justification is to be found for it in any sub-paragraph of this provision;
5. Holds, by ten votes to three, that apart from that it violated Article 5
para. 1 (art. 5-1) insofar as it exceeded the period of twenty-four hours
stipulated by Article 45 of the Netherlands Military Discipline Act of 27 April
1903;
6. Holds, unanimously, that the committal of Mr. Dona and Mr. Schul to a
disciplinary unit and Mr. Engel's provisional arrest did not violate Articles 5
para. 1 and 14 (art. 14+5-1) taken together;
7. Holds, by twelve votes to one, that there has been no breach of Article 5
para. 4 (art. 5-4) as regards the committal of Mr. Dona and Mr. Schul to a
disciplinary unit;
8. Holds, by eleven votes to two, that Article 6 (art. 6) was not applicable to
Mr. Engel on the ground of the words "criminal charge";
9. Holds, unanimously, that it was also not applicable to this applicant on the
ground of the words "civil rights and obligations";
10. Holds, unanimously, that neither was it applicable to Mr. van der Wiel;
11. Holds, by eleven votes to two, that there was a breach of Article 6 para. 1
(art. 6-1) in the case of Mr. de Wit, Mr. Dona and Mr. Schul insofar as hearings
before the Supreme Military Court took place in camera;
12. Holds, unanimously, that there was no breach of Article 6 para. 2 (art. 6-2)
in the case of Mr. Dona and Mr. Schul;
13. Holds, unanimously, that there was no breach of Article 6 para. 3 (b) (art.
6-3-b) in the case of Mr. de Wit, Mr. Dona and Mr. Schul;
14. Holds, by nine votes to four, that there was no breach of Article 6 para. 3
(c) (art. 6-3-c) in the case of these three applicants;
15. Holds, by nine votes to four, that there was no breach of Article 6 para. 3
(d) (art. 6-3-d) in the case of Mr. de Wit;
16. Holds, by twelve votes to one, that there was no breach of Article 6 para. 3
(d) (art. 6-3-d) in the case of Mr. Dona and Mr. Schul;
17. Holds, unanimously, that there was no breach of Articles 6 and 14 (art.
14+6) taken together in the case of Mr. de Wit, Mr. Dona and Mr. Schul;
18. Holds, unanimously, that there is no need to rule on the complaint based by
Mr. Dona and Mr. Schul on the alleged violation of Articles 6 and 18 (art. 18+6)
taken together;
19. Holds, unanimously, that there was no breach of Article 10 (art. 10) taken
alone or together with Articles 14, 17 or 18 (art. 14+10, art. 17+10, art.
18+10) in the case of Mr. Dona and Mr. Schul;
20. Holds, unanimously, that there was no breach of Article 11 (art. 11) in the
case of Mr. Dona and Mr. Schul;
21. Holds, unanimously, that the question of the application of Article 50 (art.
50) does not arise in the case of Mr. van der Wiel, or for those of the
complaints of Mr. Engel, Mr. de Wit, Mr. Dona and Mr. Schul which the Court has
not herein retained (items 1 to 3, 6 to 10 and 12 to 20 above);
22. Holds, by twelve votes to one, that the question is not yet ready for
decision as regards the breaches found in the case of Mr. Engel (Article 5 para.
1, items 4 and 5 above) (art. 5-1) and in the case of Mr. de Wit, Mr. Dona and
Mr. Schul (Article 6 para. 1, item 11 above) (art. 6-1);
Accordingly,
(a) reserves the whole of the question of the application of Article 50 (art.
50) as it arises for these four applicants;
(b) invites the Commission's delegates to present in writing, within one month
from the delivery of this judgment, their observations on the said question;
(c) decides that the Government shall have the right to reply in writing to
those observations within a month from the date on which the Registrar shall
have communicated them to the Government;
(d) reserves the further procedure to be followed on this aspect of the case.
Done in French and English, the French text being authentic, at the Human Rights
Building, Strasbourg, this eighth day of June, one thousand nine hundred and
seventy-six.
Signed: Hermann MOSLER President
Signed: Marc-André EISSEN Registrar
The separate opinions of the following Judges are annexed to the present
judgment in accordance with Article 51 para. 2 (art. 51-2) of the Convention and
Rule 50 para. 2 of the Rules of Court.
Mr. Verdross; Mr. Zekia; Mr. Cremona; Mr. O'Donoghue and Mrs. Pedersen; Mr.
Vilhjálmsson; Mrs. Bindschedler-Robert; Mr. Evrigenis.
Initialled: H.M.
Initialled: M.-A.E.
SEPARATE OPINION OF JUDGE VERDROSS
(Translation)
I have voted for the operative provisions of the judgment as they are in line
with the Court's established case-law. However, I cannot, to my great regret,
accept the proposition underlying the judgment, namely, that Article 5 (art. 5)
of the Convention is violated by any detention imposed by a competent military
authority whose decision is not subject to a judicial remedy having a suspensive
effect.
Here are my reasons. If one compares disciplinary detention in a cell in the
barracks with incarceration of a civilian or a serviceman in a prison (paragraph
1 (a) of Article 5) (art. 5-1-a), one is bound to see that there is a
fundamental difference between the two. In the second case, the convicted person
is completely cut off from his ordinary environment and occupation since he is
removed from his home. On the other hand, the soldier detained for disciplinary
reasons stays in the barracks and may, from one moment to the next, be ordered
to carry out one of his military duties; he thus remains, even whilst so
detained, potentially within the confines of military service. It seems to me
from this that such detention does not in principle amount to a deprivation of
liberty within the meaning of Article 5 para. 1 (art. 5-1). This does not mean
that all disciplinary detention imposed by the competent military authority
escapes the Court's supervision. It may contravene the Convention if it violates
Article 3 (art. 3) or if its duration, or its severity, exceeds the norm
generally admitted by the member States of the Council of Europe in the matter
of disciplinary sanctions; I take the view that, in the final analysis, the
nature of a punishment depends on this yardstick which can, of course, vary with
the requirements of international military life.
SEPARATE OPINION OF JUDGE ZEKIA
I have respectfully subscribed to the main part of the judgment dealing with
views and conclusions reached and criteria formulated for demarcation of the
line where deprivation of liberty in the case of a conscript or an army
serviceman occurs or does not occur within the ambit of Article 5 para. 1 (art.
5-1) of the Convention. Admittedly a certain amount of restriction on the right
to liberty of a conscript or soldier might be imposed without infringement of
Article 5 (art. 5) whereas such restriction cannot lawfully be imposed in the
case of a civilian. Full reasons having been given in the judgment I need not
repeat them.
I felt, however, unable to associate myself with the line of interpretation
taken in determining the scope of application to the present case of certain
Articles of the Convention, namely, Articles 5 para. 1 (a), 6 para. 1, 6 para. 3
(c) and (d) (art. 5-1-a, art. 6-1, art. 6-3-c, art. 6-3-d). In my view, once, in
the light of the criteria enunciated by this Court, a conscript or soldier is
charged with an offence which entails deprivation of his liberty such as
committal to a disciplinary unit, and proceedings are directed to that end, such
conscript or soldier is fully entitled to avail himself of the provisions of the
Articles under consideration. For all intents and purposes the proceedings
levelled against him are criminal in character and as far as court proceedings
are concerned there need not be any difference between him and a civilian. I am
not suggesting that such proceedings should be referred to civil courts. On the
contrary, I consider it very appropriate that military courts composed of one or
more judges, assisted by assessors or lawyers if needed, might take cognisance
of cases where army servicemen are to be tried.
Mr. de Wit, Mr. Dona and Mr. Schul were all of them serving as privates in the
Netherlands Army. The first was charged with driving a jeep in an irresponsible
manner over uneven ground at a high speed. His company commander committed him
to a disciplinary unit for three months. He complained to the complaints officer
who heard the applicant and one out of three witnesses whom he wanted to be
heard. He had the assistance of a lawyer who could assist him only on legal
points. He lodged an appeal with the Supreme Military Court which, after hearing
the appellant and his legal adviser and obtaining the opinion of the State
Advocate, reduced the punishment to twelve days' aggravated arrest to be
executed thereafter. The date of his original sentence was 22 February 1971 and
the Supreme Military Court gave its decision on 28 April 1971.
On 8 October 1971 Mr. Dona and Mr. Schul, as editors of a journal called
"Alarm", were sentenced by their superior commanding officer to committal to a
disciplinary unit for a period of three and four months respectively, for
publications undermining military authority in the Army. Both complained to the
complaints officer who confirmed the sentence. Then they appealed to the Supreme
Military Court. On 17 November 1971 their case was heard. Both were assisted on
the legal aspects of the case by a lawyer. Sentences were confirmed. Mr. Schul's
sentence was reduced to three months. Both Mr. Dona and Mr. Schul, pending their
appeal before the Supreme Military Court, were placed under aggravated arrest
from 8 to 19 October and remained under interim arrest as from the latter date
to 27 October. They were then released until their case came up for hearing
before the Supreme Military Court.
It is evident from the statement of facts made in the judgment and from the
short reference I have given to certain facts that the superior commanding
officer assumed the status of a judge who constituted a court of first instance
and after hearing the case convicted the applicants and sentenced them for
committal to a disciplinary unit. Likewise, the complaints officer assumed the
status of a revisional court in dealing with complaints made by persons
convicted and sentenced by a lower court, here by the superior commanding
officer. The decision of the complaints officer is also subject to appeal to the
Supreme Military Court which is empowered to confirm or reverse conviction and
sentence or to alter them. The Supreme Military Court exercises an appellate
jurisdiction over the decisions of the commanding and complaints officers. The
conviction and sentence do not emanate from this Court. The sentence for
committal to a disciplinary unit originated in the decision of the superior
commanding officer who is neither a judge nor entitled to constitute a court.
The proceedings before him are conducted partly in a quasi-judicial manner and
not in full compliance with Articles 6 para. 1 and 6 para. 3 (c) and (d) (art.
6-1, art. 6-3-c, art. 6-3-d) of the Convention. The same considerations more or
less apply to the status of the complaints officer. The Supreme Military Court
is correctly denominated as a court although the proceedings before the court
are conducted in camera in contravention of Article 6 para. 1 (art. 6-1). This
court is not supposed to take the place of a trial court but rather to correct
decisions already taken and convictions and sentences already passed. Therefore
I am of the opinion that the requirements of Article 5 para. 1 (a) (art. 5-1-a)
have not been met. It is a great advantage to persons facing charges to have a
hearing, first before a trial court which affords equality of arms and observes
the rules of fair trial. In case of conviction and receiving sentence, again it
is a further advantage for a convicted man to have the chance to assert his
innocence before a higher court. Usually a court of appeal considers itself as
bound by the findings of fact of the lower court unless there is strong reason
to upset such findings. The significance in the administration of justice of a
trial court of first instance cannot be regarded as over-emphasised. On the
other hand if I am right in my way of thinking that, once a soldier is sought to
be deprived of his right to liberty to the extent inadmissible and impermissible
with regard to his status as a soldier or conscript, he is entitled to be
treated as a civilian, then the detention of the applicants either in the form
of aggravated arrest or interim arrest before their cases were heard by the
Supreme Military Court amounted to a detention before a conviction by a
competent court had been passed. Furthermore, the detention of the applicants
for the period indicated above before the Supreme Military Court heard the case
was made on the strength of a conviction and sentence passed by a superior
commanding officer who was not a competent court and such detention was not
linked with the exigencies of service.
I have little to say in respect of infractions of Articles 6 para. 1 and 6 para.
3 (c) and (d) (art. 6-1, art. 6-3-c, art. 6-3-d). Violation of Article 6 para. 1
(art. 6-1) is found by the Court. I have nothing to add. Coming to Article 6
para. 3 (c) (art. 6-3-c), it appears from the record that the applicants were
assisted only on the legal aspects of their case and very probably because they
had recourse to the Articles of the Convention. This, to my mind, does not
satisfy the provisions of the aforesaid sub-paragraph. As to Article 6 para. 3
(d) (art. 6-3-d), it appears again that the applicants could not obtain the
attendance and examination of some witnesses they wanted to call for their
defence. The omission or refusal to call such witnesses for the defence does not
appear to be based either on the irrelevancy of their evidence or on some other
good reason. The applicants were not fully afforded the chance to examine
witnesses against them either directly or through their counsel or through the
court as envisaged in sub-paragraph 3 (d) of Article 6 (art. 6-3-d) of the
Convention.
SEPARATE OPINION OF JUDGE CREMONA
I have agreed with the majority of my brother judges in the finding of the
violations of the Convention indicated in the judgment. But having come to the
conclusion, along with them, that certain punitive measures complained of in
this case (strict arrest and committal to a disciplinary unit) were in fact
deprivations of personal liberty also in the context of the special
characteristics and exigencies of military life, I feel that certain other
points become pertinent, and on these points, which I am briefly setting out
hereunder, I find myself, with respect, in disagreement with the conclusions
reached by the majority of my colleagues.
In the first place, having already excluded certain punitive measures (also
described as arrests) from the purview of deprivation of liberty for the
purposes of Article 5 para. 1 (art. 5-1) of the Convention solely on the
accepted ground that "when interpreting and applying the rules of the Convention
in the present case, the Court must bear in mind the particular characteristics
of military life and its effects on the situation of individual members of the
armed forces" (paragraph 54 of the judgment), then, in proceeding to identify as
possible charges of a criminal nature (for the purposes of Article 6 para. 1 of
the Convention) (art. 6-1) certain "disciplinary charges" which involve
liability to punishments entailing unquestionable deprivation of liberty, I am
unable to distinguish further, as the majority of my colleagues do (paragraph
82), particularly on the basis of the relative duration of such deprivation of
liberty.
Thus I find that also in the case of Mr. Engel (and not only in that of Mr. de
Wit, Mr. Dona and Mr. Schul, as stated in paragraph 88 of the judgment) the
position was one of the determination of a criminal charge against him, and
since the hearing in his case too, as in that of the others, took place in
camera, there is also in respect of him a violation of Article 6 para. 1 (art.
6-1), irrespective of the short duration of the strict arrest to which he was
liable. The question of the assessment of the risk to which he was in practice
exposed on 7 April 1971 cannot in my view alter the existing legal situation.
In paragraph 63 it is accepted in the judgment that the provisional arrest
inflicted on Mr. Engel in the form of strict arrest did have the character of
deprivation of liberty and this, as therein stated, despite its short duration.
While appreciating that what I am about to say is not quite the same thing
though the basis is essentially common, I feel that when considering the true
nature of a criminal charge, liability to a punishment entailing unquestionable
deprivation of liberty should also be viewed irrespective of its duration. In
such a case the nature of the punishment itself in fact overrides its duration.
An established deprivation of personal liberty cannot, without injury to the
spirit of the Convention, be considered as obliterated by the shortness of its
duration, also in the process of determining, for the purposes of Article 6
para. 1 (art. 6-1) of the Convention, the true nature of a criminal charge. With
particular reference to what is stated in the last sub-paragraph of paragraph 82
of the judgment, it is my belief that the detriment involved in a deprivation of
personal liberty, once established as such, cannot (as is done there) properly
be qualified by the quantitative concept "not appreciable" nor indeed judged by
reference to time, except only for the purposes of the relative gravity.
Another point concerns Article 6 para. 3 (c) (art. 6-3-c) of the Convention,
which, among certain minimum rights guaranteed to a person charged with a
criminal offence, includes the right "to defend himself in person or through
legal assistance of his own choosing or, if he has not sufficient means to pay
for legal assistance, to be given it free when the interests of justice so
require". I do not propose to controvert the fact that this right as a whole and
as formulated in this provision is not in every respect an absolute right. But
then I do believe that this important right of the accused cannot be subjected
to the limitation that the legal assistance (in this case a fellow-conscript
with legal qualifications chosen by the applicants themselves) be confined
exclusively to any points of law arising in the case.
It will be recalled in this connection that at the time of the measures
complained of, the Supreme Military Court in practice granted legal assistance
in certain cases where it was expected that the person concerned would not be
able himself to cope with the special legal problems raised in his appeal and
such legal assistance was confined to the legal aspects of the case. This
limitation is in fact the subject of complaint here and I find that its
application in the case of the applicants mentioned in paragraph 91 of the
judgment is in violation of Article 6 para. 3 (c) (art. 6-3-c) of the
Convention. The legal assistance mentioned in this provision refers to the case
as a whole, that is to say, in all its aspects, both legal and factual. Indeed
it is only too clear that every case is made up of both law and fact, that these
are both important for the defence (which is what this provision is intended to
protect) and that at times it may also not be too easy to separate one from the
other.
In particular, it is, with respect, hardly reasonable to seek to justify the
situation complained of, as the majority of my colleagues do in the third
sub-paragraph of paragraph 91 of the judgment, on the ground that "the
applicants were certainly not incapable of personally providing explanations on
the very simple facts of the charges levelled against them". Indeed, quite apart
from the questionable simplicity of the facts of the charges or at any rate some
of them, the essential point here is not the matter of providing explanations,
but the matter of adequately defending oneself against a criminal charge. The
right guaranteed in Article 6 para. 3 (c) (art. 6-3-c) is a vital right of the
accused and indeed of the defence in general and is designed to ensure that
proceedings against a person criminally charged will not be conducted in such a
way that his defence will be impaired or not adequately put. Nor is the right to
legal assistance of one's own choosing, as enshrined in this provision,
conditional on the person charged being incapable of defending himself (or, as
stated in the judgment, providing explanations) in person. Furthermore, here the
question clearly was not that the applicants were unable to defend themselves in
person, but that they showed themselves unwilling to do so, preferring, as
entitled to do under the Convention, to be defended (in respect of not only the
legal but also the factual aspects of the charges against them) by a lawyer of
their own choosing. That lawyer was in fact accepted, but then his services in
the defence of the applicants were, as already stated, in my view unjustifiably
restricted.
Another point concerns the failure to call two witnesses for the defence of Mr.
de Wit (named by him), a failure of which he also complained in this case,
invoking Article 6 para. 3 (d) (art. 6-3-d) of the Convention, which guarantees
to a person charged with a criminal offence, among certain other minimum rights,
the right "to examine or have examined witnesses against him and to obtain the
attendance and examination of witnesses on his behalf under the same conditions
as witnesses against him". Again, there is no gainsaying the fact that this is
not an absolute right and is limited, for instance and to mention but one
factor, by the concept of relevance. Now when Mr. van der Schans assisting the
delegates of the Commission (he had previously also represented the applicants
before the Commission) put it to this Court that the witnesses for the defence
who were not ordered to appear were witnesses who could have helped the case for
the defence (they were described as "eye-witnesses"), the Government
representatives countered by saying that in view of the fact that Mr. de Wit had
made a declaration acknowledging certain facts, "there was no need for further
witnesses" (verbatim report of the public hearing of 29 October 1975). But,
without here wishing to interfere unduly with the decisions of national
jurisdictions and apart from the fact that Mr. de Wit's declaration covered only
part of the charge against him (in it he certainly denied certain parts of the
charge, as may be seen from the relevant decision), what was stated by the
Government representatives seems to indicate that the non-admission of Mr. de
Wit's two witnesses out of the three proposed by him (as against the admission
of five witnesses against him) was not grounded on such justifiable
considerations as, for instance, relevance, but rather on their becoming
unnecessary because of certain of the accused's statements, which in my view, at
least on the basis of what is before me, is not justifiable.
JOINT SEPARATE OPINION OF JUDGES O'DONOGHUE AND PEDERSEN
We are in agreement with the view that no breach has been found in any of the
cases before the Court under Articles 10, 11, 14, 17 and 18 (art. 10, art. 11,
art. 14, art. 17, art. 18) of the Convention. It is clear from the judgment that
the difficulties arise from the consideration of the applicability of two
Articles 5 and 6 (art. 5, art. 6). These Articles (art. 5, art. 6) can be said
to have a certain inter-relationship because if Article 5 (art. 5) is applicable
in the sense that there has been a deprivation of liberty involving a criminal
charge the full impact of the obligation to comply with Article 6 (art. 6) will
follow.
We feel unable to adopt the conclusion of the majority of the Court that the
clear obligation of members of the armed forces to observe the code of
discipline applicable to such forces is an unspecified obligation and therefore
outside the reach of Article 5 para. 1 (b) (art. 5-1-b). There is a clear
distinction in our opinion between the obligation of citizens at large to obey
the law and the special position of military personnel to obey the disciplinary
code which is a vital and integral constituent of the force of which they are
members.
Apart from the considerations set out in the separate dissenting opinion of MM.
Fawcett and others [pp. 74-75 of the Report] (1), with which conclusion we fully
agree, there is an elementary factor which should be looked at in the structure
and character of a military establishment in any country which is party to the
Convention. This factor is the disciplinary code, the maintenance of which is
vital to the very continued existence of an armed force, and quite different
from any other body or association which purports to exercise a measure of
discipline over its members.
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The special importance of discipline in an armed force and the recognition of
this by its members, lead us to take the view that you have here a clear case of
a specific and concrete obligation prescribed by law and imposed on the members.
In the light of these considerations we are satisfied that in none of the cases
before the Court has there been a breach of Article 5 para. 1 (art. 5-1) of the
Convention because of the exception stated in Article 5 para. 1 (b) (art.
5-1-b).
What is described as the provisional detention of Mr. Engel commenced with his
arrest on 20 March 1971. The Military Discipline Act of 1903 sanctioned such an
arrest and detention but Article 45 of that Act restricted the period of
provisional detention to twenty-four hours. In the events which took place in
Mr. Engel's case there was an excessive detention of twenty-two hours and this
excess was unlawful. But in the case of Mr. Engel we consider that the whole
period during March to June 1971 be taken into account. The Ministerial decision
to suspend the execution of his punishments to allow him to take his examination
and the reduction of the several penalties in April must be balanced against the
definite but technically excessive detention of twenty-two hours. In all these
circumstances we would not hold that the Netherlands Government committed a
breach of Article 5 para. 1 (art. 5-1) of the Convention.
As we regard the breaches of the applicants as disciplinary offences, concerned
only with the applicants' conduct as servicemen and with their military
obligations (cf. para. 122 of the Commission's report), it follows that the
question of "the determination of his civil rights and obligations" as stated in
Article 6 para. 1 (art. 6-1) of the Convention does not arise for any of the
applicants.
For the same reasons we are of the opinion that there was no contravention of
Article 6 (art. 6) in dealing with the cases, and in not treating any of them as
in essence criminal charges requiring the application of the process contained
in that Article (art. 6).
It is to be recognised that difficulty may be experienced by States in dealing
with cases which are a breach of discipline and at the same time an offence
under the criminal law. It seems to us that a test should be whether the
complaint is predominantly a disciplinary breach or a criminal offence. If the
latter, the provisions of Article 6 (art. 6) must be observed. The nature of the
complaint and the punishment prescribed under the disciplinary code and under
the criminal law would be helpful pointers as to the course to be followed in
order to comply with the Convention. Any attempt to dilute the procedure in the
case of a grave crime by treating it as a disciplinary infraction would in our
opinion be such a serious abuse, and indeed quite powerless under the Convention
to exclude the application of Article 6 (art. 6) and would oblige full
compliance with the requirements of that Article (art. 6).
We have derived much assistance from the separate opinion of Mr. Welter and in
particular we agree with his view expressed in paragraph 9 of the opinion and
his reasons given why Article 6 (art. 6) was not applicable to any of the five
applicants.
It follows from the foregoing that no questions arise under Article 50 (art.
50).
SEPARATE OPINION OF JUDGE THÓR VILHJÁLMSSON
1. I feel unable to go along with the reasoning of the majority of the Court
expressed in paragraph 62 of the judgment. There the majority finds that
aggravated arrest under the 1903 Act is not a deprivation of liberty within the
meaning of Article 5 (art. 5) of the Convention. In my opinion it is. This is
both because of its nature and its legal character.
As is described in paragraph 19 of the judgment, servicemen undergoing
aggravated arrest are not allowed the same freedom of movement as other
servicemen. These restrictions deviate clearly from the usual conditions of life
within the Netherlands armed forces. Thus the servicemen concerned have to
remain during off-duty hours in a specially designated place, cannot go to the
recreation facilities open to others in the same barracks and often sleep in
special rooms.
The view that this treatment is tantamount to deprivation of liberty is
strengthened by its purpose which obviously is punitive. It is also worth noting
that we have here a treatment in respect of which the term arrest is used and
this in itself indicates a deprivation of liberty.
What is stated above does not lead me to find a breach of Article 5 (art. 5) of
the Convention as regards the aggravated arrest of Mr. de Wit (paragraph 41 of
the judgment) and of Mr. Dona and Mr. Schul (paragraph 65 of the judgment). This
conclusion is based on my interpretation of Article 5 para. 1 (b) (art. 5-1-b)
of the Convention dealt with below. In the case of Mr. de Wit it is also based
on the fact that he served aggravated arrest after a decision was rendered by
the Supreme Military Court of the Netherlands.
2. Article 5 para. 1 (b) (art. 5-1-b) of the Convention permits "the lawful
arrest or detention of a person ... in order to secure the fulfilment of any
obligation prescribed by law". The majority of the Court, in agreement with the
majority of the Commission, finds this provision not applicable in the present
case (paragraph 69 of the judgment). I cannot agree with the majority on this
point. Any country which has a military service organises it on the basis of
well-established principles, which in the case of the Netherlands are specified
in the laws and regulations mentioned in the judgment. These rules form a
distinct entity and they impose upon servicemen certain specific obligations. It
seems to me that, far from endangering respect for the rule of law, this body of
rules falls under the above-cited provision of Article 5 para. 1 (b) (art.
5-1-b).
This conclusion, nevertheless, does not apply to the provisional detention of
Mr. Engel in excess of the twenty-four hours permitted by Article 45 of the 1903
Act (paragraph 26 of the judgment). On this particular point I am in agreement
with the majority of the Court (see paragraph 69).
3. In paragraph 91 of the judgment, the majority of the Court sets out its
opinion in connection with sub-paragraphs (c) and (d) of Article 6 para. 3 (art.
6-3-c, art. 6-3-d) of the Convention. I do not share this opinion.
As to Article 6 para. 3 (c) (art. 6-3-c), a natural reading of the text seems to
me to indicate that it is up to the accused to decide whether he defends himself
in person or entrusts this task to a lawyer. This, moreover, is in line with the
general principles of law reflected in Article 6 (art. 6). I fail to see how, in
a given case, a court - not to speak of an administrative authority - can
reasonably decide to what degree the accused is capable of conducting his own
defence. I therefore find a breach of Article 6 para. 3 (c) (art. 6-3-c) in the
case of Mr. de Wit, Mr. Dona and Mr. Schul.
As to Article 6 para. 3 (d) (art. 6-3-d) of the Convention, I agree with the
majority of the Court when it states in paragraph 91 of the judgment that this
provision does not require the examination of every witness that an accused
person may wish to have called. I am also of the opinion, like the majority,
that "equality of arms" is an important point when this provision is
interpreted. Nevertheless, this provision entitles a person charged with a
criminal offence to have witnesses on his behalf heard by the tribunal dealing
with his case unless legally valid reasons are given for not doing so. This
Court has, it is true, somewhat incomplete information on the facts concerning
the alleged violations of Article 6 para. 3 (d) (art. 6-3-d). It is stated that
in the case of Mr. de Wit the calling of two witnesses was prevented at every
juncture (paragraphs 42 and 91 of the judgment). This has in my opinion not been
refuted. Even if the complaints officer on 5 March 1971 heard witnesses
(paragraph 41), this cannot count as a fulfilment of the obligation under
Article 6 para. 3 (d) (art. 6-3-d) because he is not a court or a tribunal
within the meaning of Article 6 para. 1 (art. 6-1). Accordingly I find a
violation of Article 6 para. 3 (d) (art. 6-3-d) in the case of Mr. de Wit. On
the other hand I agree with the majority of the Court in not finding a breach of
this provision in the case of Mr. Dona and Mr. Schul as it has not been
established that they made any request to the Supreme Military Court in this
respect.
SEPARATE OPINION OF JUDGE BINDSCHEDLER-ROBERT
(Translation)
I am in agreement with the operative provisions of the judgment, except the two
items concerning Mr. Engel's provisional arrest. These items record the finding
that this arrest violated Article 5 para. 1 (art. 5-1) of the Convention,
firstly, since no justification is to be found for it in any sub-paragraph of
this provision (item 4), and secondly, because it exceeded the period of
twenty-four hours stipulated by Netherlands law and insofar as it exceeded this
period (item 5).
1. The difference of opinion over the first item reflects a fundamental
disagreement on the applicability of Article 5 para. 1 (art. 5-1) in the matter.
The first part of the judgment ("as to the law") is based on the idea that
Article 5 para. 1 (art. 5-1) is applicable de plano to disciplinary measures and
penalties occasioning deprivation of liberty imposed in the context of military
disciplinary law. It follows from this (i) that disciplinary penalties
occasioning deprivation of liberty would comply with the Convention only if
imposed by a court, in conformity with Article 5 para. 1 (a) (art. 5-1-a); and
(ii) that, in comformity with sub-paragraph (c) (art. 5-1-c), there may be
provisional arrest or detention only for the purpose of bringing the person
arrested before the competent legal authority, and not before the hierarchical
superior even if he is impowered to impose a disciplinary penalty. Whilst, on
the facts of the case, the first of these consequences does not result in the
finding of a violation of the Convention, the second leads the Court to conclude
that there has been a violation of Article 5 para. 1 (art. 5-1) as regards Mr.
Engel's provisional arrest.
To my great regret, I cannot share this point of view; I think that, despite the
apparently exhaustive nature of Article 5 para. 1 (art. 5-1), the measures and
penalties of military disciplinary law should not be put on the scales of
Article 5 para. 1 (art. 5-1). Here are my reasons:
(1) Account must be taken of the nature of military service and the role of
disciplinary law in instilling and maintaining discipline which is a sine qua
non for the proper functioning of that special institution, the army. It is not
enough to adopt, as does the Court, a narrow concept of deprivation of liberty;
what must be borne in mind is the whole system of disciplinary law. Military
discipline calls in particular for speedy and effective measures and penalties,
adapted to each situation, and which, therefore, the hierarchical superior must
be able to impose.
(2) The Convention itself recognises in its Article 4 para. 3 (b) (art. 4-3-b)
the special characteristics of military service. This provision reflects a basic
choice made by the Contracting States and establishes in a general way the
compatibility with the Convention of military service. The derogations from and
restrictions on the fundamental rights to which it may give rise - for example,
the right to liberty of movement guaranteed by Article 2 of Protocol no. 4
(P4-2) - are thus not contrary to the Convention, even if there is no express
reservation about them. Now the system of discipline peculiar to the army
constitutes one of these derogations; Article 5 para. 1 (art. 5-1) does not
concern military disciplinary law and its exhaustive nature relates only to
situations in civil life. Judge Verdross is right to emphasise in his separate
opinion that disciplinary penalties in the framework of military service are sui
generis.
(3) The fact that disciplinary law does not fall under Article 5 para. 1 (art.
5-1) is the only explanation for the wording of this provision and its complete
lack of adaptation to the situations which military disciplinary law concerns.
These factors, as well as the place of Article 5 (art. 5) in the Convention and
its logical link with Article 6 (art. 6), are an indication that the drafters of
the Convention really had in mind situations belonging to criminal procedure.
(4) The above points are corroborated by the way in which the States party to
the Convention have dealt with the question in their domestic law. Even today,
in their military disciplinary law, the hierarchical superior is generally the
authority empowered to take measures or impose penalties whether occasioning
deprivation of liberty or not. Some States certainly provide for judicial review
but this does not always have a suspensive effect; furthermore, Article 5 para.
1 (a) (art. 5-1-a) makes no distinction in its requirements between the
different authorities. The governments do not seem to have envisaged the
possibility that their military disciplinary law - as opposed to their military
penal procedure - could be affected by the Convention. It appears difficult in
these circumstances to countenance an interpretation that disregards so
widespread a conception, namely, the "common denominator of the respective
legislation of the various Contracting States", to adopt the Court's language in
another context (paragraph 82 of the judgment).
I conclude from the above that Mr. Engel's provisional arrest, since it occurred
in the framework of disciplinary procedure, was not subject to Article 5 para. 1
(a) (art. 5-1-a) and that, as a result, it has not violated this provision on
the ground that Mr. Engel was arrested and detained for the purpose of being
brought before his hierarchical superior and not before a legal authority.
2. That Article 5 para. 1 (art. 5-1) is inapplicable to disciplinary law does
not mean that disciplinary measures and penalties escape supervision altogether.
In point of fact, as is stated in the judgment, Article 6 (art. 6) gives the
Convention institutions the possibility of correcting excessive extension of the
scope of disciplinary law; furthermore there is ground for saying that the
measures and penalties in disciplinary law that involve deprivation of liberty
do not escape the requirement of lawfulness which underlies the whole of Article
5 (art. 5).
Mr. Engel's provisional arrest can certainly be assessed from this angle.
However, although I admit that it was initially tainted with unlawfulness to the
extent that it lasted more than twenty-four hours, I cannot agree with the item
in the operative provisions of the judgment which records a violation of the
Convention in this respect. The State which redresses injury caused contrary to
international law expunges by that very act its international responsibility; to
afford it this possibility is precisely the meaning of the rule on exhaustion of
domestic remedies (cf. Guggenheim, Traité de droit international public, vol.
II, p. 23). In the case before us, the State completely redressed Mr. Engel's
injury when the autority hearing the appeal decided that the two days' strict
arrest to which he had been sentenced would be deemed to have been served during
the provisional arrest. In these circumstances it is no longer appropriate for
the operative provisions of the judgment to record a violation of the
Convention. This approach is not contrary to the Court's case-law; each time it
has held that the reckoning of detention on remand as part of a sentence did not
prevent it from taking the unlawfulness of that detention into account, there
had been a detention of long duration for which the deduction did not amount to
complete reparation. Besides, the question has been pleaded before the Court in
the context of affording just satisfaction (cf. for example, the Neumeister
case, judgment of 7 May 1974, Series A no. 17, pp. 18-19).
SEPARATE OPINION OF JUDGE EVRIGENIS
(Translation)
1. To my great regret I have not been able to concur with the majority of the
Court on items no. 3, 14, 15 and 16 of the operative provisions of the judgment.
These are the points which caused me to disagree:
(a) The majority of the Court thought that the committal of Mr. Dona and Mr.
Schul to a disciplinary unit, by virtue of a decision of the Supreme Military
Court of the Netherlands, met with the requirements of Article 5 para. 1 (a)
(art. 5-1-a) of the Convention. Their sentence to a punishment involving
deprivation of liberty emanated, according to the majority of my colleagues,
from a "court" within the meaning borne by this term in Article 5 para. 1 (a)
(art. 5-1-a). The Military Court, to adopt the terminology used in our Court's
case-law, was a court from the organisational point of view; yet it seems on the
other hand difficult to regard the procedure prescribed by law and in fact
followed before it in the present cases as being in conformity with the
conditions that should be satisfied by a judicial body corresponding to the
notion of a court, within the meaning of Article 5 para. 1 (a) (art. 5-1-a). Two
aspects of this procedure appear to me not to fulfil these conditions, namely,
the freedom of action allowed to the accused's lawyer on the one hand and the
taking of evidence on the other.
On the first aspect, the facts noted by the Court (judgment, paras. 32, 48, 91)
reveal an important restriction on the defence lawyer's freedom of action before
the Military Court when it hears a disciplinary case like those now before us.
The lawyer may not, in fact, take part in the proceedings except to deal with
legal problems and, what is more, only with any specific legal problems that
might be presented by his client's appeal, such as, for example, the questions
that would be raised by the entry into play of the European Convention on Human
Rights. Furthermore, there are good reasons for thinking that the lawyer is not
allowed to plead during the hearing (cf. the reference to the report dated 23
December 1970 of the acting Registrar of the Netherlands Supreme Military Court,
decision on admissibility, report of the Commission, p. 99) (1). Taking these
restrictions into account, it seems difficult to reconcile the procedure in
question with the notion of a court within the meaning of Article 5 para. 1 (a)
(art. 5-1-a); this, let us not forget, is a court which imposes sanctions
involving deprivation of liberty (cf. De Wilde, Ooms and Versyp judgment of 18
June 1971, Series A no. 12, pp. 41-42, paras. 78-79, and (b) below).
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The same points also apply to the second procedural aspect mentioned above,
namely, the procedure prescribed by law and followed in practice for taking
evidence before the Military Court when it sits as a disciplinary tribunal.
According to the facts noted by the Court and bearing in mind the provisions of
Netherlands law applicable in this case (cf. paras. 31 and 91 of the judgment),
the attendance and hearing of defence witnesses apparently cannot take place in
conditions ensuring the guarantees for the defence which I consider that a trial
must provide if it involves the imposition of a punishment occasioning
deprivation of liberty and if it is to be fair. For these reasons I have had to
conclude that there has been a violation of Article 5 para. 1 (art. 5-1) in the
case of Mr. Dona and Mr. Schul.
Having said this, I think that, once the Court had held that the charge against
these two applicants was "criminal" (Article 6, judgment paras. 80 et seq., in
particular para. 85 in fine) (art. 6), it should have refrained from examining
whether the Military Court corresponded to the notion of a court within the
meaning of Article 5 para. 1 (a) (art. 5-1-a). Whilst the expression "court" is,
in principle, an autonomous concept in each of the above-mentioned provisions,
this nevertheless does not alter the fact that the court mentioned in Article 5
para. 1 (a) (art. 5-1-a) must meet the requirements of Article 6 (art. 6) when,
as in the present case, the penalty occasioning deprivation of liberty which it
imposes is finally deemed to be the outcome of a criminal charge and hence to
fall within Article 6 (art. 6). It is permissible, in appropriate cases, for the
court mentioned in Article 5 para. 1 (a) (art. 5-1-a) not to fulfil all the
conditions stipulated by Article 6 (art. 6) for a criminal court. The converse
seems both logically and legally difficult. If a penalty occasioning deprivation
of liberty was inflicted by a court that had to meet the conditions of Article 6
(art. 6), there is no point in asking the further question whether that court
complied with the notion of a court within the meaning of Article 5 para. 1 (a)
(art. 5-1-a).
(b) The same reasons have led me to believe that I must dissent from the opinion
of the majority of the Court on items 14, 15 and 16 of the operative provisions
of the judgment. I will thus do no more than refer to the remarks set out under
1 (a) above.
The fact remains that I think that the examination of the cases of committal to
a disciplinary unit in the light of the notion of "criminal charge" in Article 6
(art. 6) calls for some observations of a more general nature. I take the
liberty of putting them forward as I wish to demonstrate that on these points my
disagreement with the majority is more pronounced.
When imposing the penalty of committal to a disciplinary unit (case of Mr. Dona
and Mr. Schul) or when reviewing such a penalty imposed by a non-judicial
authority (case of Mr. de Wit), the Military Court was acting under Netherlands
law as a disciplinary tribunal. If and to the extent that the Military Court was
not dealing with conduct that could be sanctioned by penalties occasioning
deprivation of liberty, its procedure could not in principle be considered
contrary to the Convention. However, our Court thought, and rightly moreover,
that the above-mentioned cases not only involved punishments occasioning
deprivation of liberty, but also were covered by the notion of "criminal charge"
within the meaning of Article 6 (art. 6) of the Convention. It thus had to
investigate whether the Military Court afforded the guarantees that this
provision requires of a criminal court. The majority considered that in the
present case those guarantees were present, except the requirement of Article 6
para. 1 (art. 6-1) that the hearings be in public. Now the picture of the
criminal court presented by the opinion of the majority seems to me hardly
reconcilable with the minimal requirements of Article 6 (art. 6) for the ideal
criminal court. Indeed I find it very hard to admit that a criminal court,
irrespective of its level or jurisdiction, can, without contravening the
provisions of Article 6 (art. 6), operate with a defence lawyer subject to
important restrictions on the freedom of action traditionally allowed in the
criminal procedure of the democratic countries in Europe and with rules of
taking evidence little favourable to the accused. Of course, one cannot
attribute these deficiencies to the Military Court which, it must be remembered,
was acting under Netherlands law in the present cases as a disciplinary tribunal
and did not therefore normally have to enquire whether it was complying with
Article 6 (art. 6) of the Convention. It is our judgment which, by drawing the
borderline beyond which the disciplinary becomes the criminal, requires
retrospectively, by virtue of the Convention, that a disciplinary tribunal
should have afforded the guarantees of a criminal court. Now I fear that the
majority opinion, to the extent that it restricts these guarantees, may take the
interpretation of Article 6 (art. 6), and especially the notion of a criminal
court, on a path which, may I say, would not be free of risks. I would also like
to point out in the same context that the classification under the Convention of
a question as criminal, whether or not this corresponds to the conceptions of
the relevant national law, must bring into play the guarantees of Article 7
(art. 7) of the Convention as well.
(c) In finding a violation of Article 5 para. 1 (art. 5-1) for the reasons given
in 1 (a) above, I should logically conclude that there was a violation of
Article 5 para. 4 (art. 5-4) in the case of Mr. Dona and Mr. Schul (item no. 7
of the operative provisions of the judgment). If the Supreme Military Court,
which, according to the judgment, performs cumulatively the functions both of
the court mentioned in Article 5 para. 1 (a) (art. 5-1-a) and of the court
mentioned in Article 5 para. 4 (art. 5-4), did not comply with the former
paragraph's notion of a court, likewise it would also not comply in principle
with the latter paragraph's notion of a court. I have, however, agreed with the
majority on this point, taking into account that under Netherlands law there is
a civil court with general jurisdiction before which the legality of any
deprivation of liberty may be challenged by summary application (Article 289 of
the Civil Procedure Code and Sections 2 and 53 of the Judicature Act).
2. My vote on item 6 of the operative provisions of the judgment was to the
effect that there was no violation, in the cases there mentioned, of Articles 5
para. 1 and 14 (art. 14+5-1 taken together. If the question had been put, I
would for the same reasons (judgment, paras. 72 et seq.) have voted the same way
as regards the complaints before the Court which were not considered to concern
deprivations of liberty. The Court, however, thought it was able not to retain
these cases for the reasons set out in paragraph 71 of the judgment. I cannot
share this view. According to the Court's case-law (case relating to certain
aspects of the laws on the use of languages in education in Belgium, judgment of
23 July 1968, Series A no. 6, pp. 33-34, para. 9; National Union of Belgian
Police Case, judgment of 27 October 1975, Series A no. 19, p. 19, para. 44), a
"measure which is in conformity with the requirements of the Article enshrining
the right or freedom in question may however infringe Article 14 (art. 14) for
the reason that it is of a discriminatory nature". Article 14 (art. 14) obliges
States to secure "without discrimination" the enjoyment of the rights and
freedoms set forth in the Convention. The Convention thus prohibits any
discrimination appearing in the context of the enjoyment of a right which it
guarantees, whether such discrimination takes the positive form of measures
enhancing the enjoyment of that right, or the negative form of limitations,
legitimate or otherwise, on that right. I can hardly conceive how one could, a
fortiori, make a distinction under Article 14 (art. 14), as interpreted by the
Court, between measures involving an unlawful limitation on the right in
question and measures tolerated by the Convention. Discriminatory treatment by
measures in either of these two categories may lead to a discrimination in the
enjoyment of rights that must be subject to supervision under Article 14 (art.
14) of the Convention. The Court should therefore have examined from the point
of view of their conformity with Article 14 (art. 14) as well, those of the
penalties brought to its attention which it finally considered not to involve
deprivation of liberty.
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