Print EUROPEAN COURT OF HUMAN RIGHTS
(excerpts)
(emphasis added)
(see in particular paragraphs 57, 68 and 78 through 91)
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:
(…)
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.
(…)
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 fulfillment 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 fulfillment 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 fulfillment 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
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
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
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
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
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
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 -
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
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)
(…)
IV. ON THE ALLEGED VIOLATION OF ARTICLE 11 (art. 11)
(…)
V. ON THE APPLICATION OF ARTICLE 50 (art. 50)
(…)
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.
(…)