CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 8 juin 1976

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s23860FF7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:center } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sC202EACC { clear:both; mso-break-type:section-break } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s76CF415B { page-break-before:always; clear:both } .sB9D5CABB { width:28.35pt; display:inline-block } .s5FA800CC { width:1.69pt; display:inline-block } .s61E420C2 { font-family:Arial; font-variant:small-caps } .s901C2590 { width:56.7pt; display:inline-block } .s383BA71D { width:11.69pt; display:inline-block } .sBB5E682E { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt } .sF604F523 { margin-top:36pt; margin-bottom:12pt; font-size:14pt } .sB8987CE9 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt } .sF3A96CC8 { margin-top:0pt; margin-left:19.85pt; margin-bottom:0pt; text-indent:-19.85pt; text-align:left } .sE9B40630 { width:19.85pt; text-indent:0pt; display:inline-block } .s589F1A46 { width:25.5pt; text-indent:0pt; display:inline-block } .sAC9CE5D8 { width:39.7pt; text-indent:0pt; display:inline-block } .s71BFEE91 { width:76.08pt; text-indent:0pt; display:inline-block } .sCB55C12D { width:33.29pt; text-indent:0pt; display:inline-block } .s25D3B7AD { width:195.44pt; text-indent:0pt; display:inline-block } .sC0123E35 { width:66.76pt; text-indent:0pt; display:inline-block } .sF1CDCC68 { width:130.65pt; text-indent:0pt; display:inline-block } .sCF71E503 { width:186.66pt; text-indent:0pt; display:inline-block } .sE8EB5753 { margin-top:0pt; margin-bottom:6pt; text-indent:14.2pt } .s6BBACBD8 { margin-top:6pt; margin-left:20.15pt; margin-bottom:12pt; text-indent:8.8pt; font-size:10pt } .s160BBE39 { margin-top:12pt; margin-left:20.15pt; margin-bottom:6pt; text-indent:8.8pt; font-size:10pt } .s451A1BF5 { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt } .sEEE3CE35 { margin-top:12pt; margin-left:20.15pt; margin-bottom:12pt; text-indent:8.8pt; font-size:10pt } .s938C6EDF { margin-top:12pt; margin-left:28.35pt; margin-bottom:12pt; font-size:10pt } .s8AD34D0 { margin-top:6pt; margin-left:20.15pt; margin-bottom:6pt; text-indent:8.8pt; font-size:10pt } .s4B773175 { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt } .sDCCC0E43 { margin-top:18pt; margin-left:17.85pt; margin-bottom:30pt; text-indent:-17.85pt } .s32E480FE { margin-top:30pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt } .s9019FD2F { margin-top:12pt; margin-bottom:6pt; text-indent:14.2pt } .s93768FD1 { margin-top:12pt; margin-left:28.35pt; margin-bottom:18pt; font-size:10pt } .s70114485 { margin-top:18pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt } .s377C1984 { margin-top:0pt; margin-bottom:12pt; text-indent:14.2pt } .s9C230781 { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt } .sDEA336FF { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt } .sDB3CA5CD { margin-top:30pt; margin-left:17.85pt; margin-bottom:30pt; text-indent:-17.85pt } .sB4C93753 { margin-top:12pt; margin-left:28.35pt; margin-bottom:6pt; font-size:10pt } .sA845BF37 { margin-top:12pt; margin-left:36.6pt; margin-bottom:18pt; text-indent:-15.05pt } .sC124C46D { margin-top:18pt; margin-left:36.6pt; margin-bottom:18pt; text-indent:-15.05pt } .sC339DBBE { margin-top:18pt; margin-left:45.35pt; margin-bottom:6pt; text-indent:-13.6pt; font-size:10pt } .sDE861C64 { margin-top:12pt; margin-left:45.35pt; margin-bottom:6pt; text-indent:-13.6pt; font-size:10pt } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .s47E2B0C6 { margin-top:6pt; margin-bottom:0pt } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .sF66B8D08 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt } .s6E97E8AF { margin-top:12pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s583D00FA { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s26FF04E7 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt } .sFDE7661F { margin-top:12pt; margin-bottom:0pt; text-indent:14.4pt } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sA918FEC8 { margin-top:12pt; margin-bottom:12pt; text-indent:14.4pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .s662121A1 { margin-top:12pt; margin-bottom:12pt; text-align:center } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }       COURT (PLENARY)             CASE OF ENGEL AND OTHERS v. THE NETHERLANDS   (Application no. 5100/71; 5101/71; 5102/71; 5354/72; 5370/72)             JUDGMENT       STRASBOURG   8 June 1976   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 Commission'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 outside 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 committals 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 regime 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 therefore. 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 appli