CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 septembre 1989

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }    AS TO THE ADMISSIBILITY OF     Application No. 12843/87 by Jacobus Petrus KOSTER against the Netherlands             The European Commission of Human Rights sitting in private on 6 September 1989, the following members being present:                   MM.   C.A. NØRGAARD, President                      J.A. FROWEIN                      S. TRECHSEL                      F. ERMACORA                      G. JÖRUNDSSON                      A.S. GÖZÜBÜYÜK                      A. WEITZEL                      J.C. SOYER                      H. DANELIUS                      G. BATLINER                      H. VANDENBERGHE                 Mrs.   G.H. THUNE                 Sir   Basil HALL                 MM.   F. MARTINEZ                      C.L. ROZAKIS                 Mrs.   J. LIDDY                 Mr.   L. LOUCAIDES                   Mr.   H.C. KRÜGER, Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 31 March 1987 by Jacobus Petrus KOSTER against the Netherlands and registered on 3 April 1987 under file No. 12843/87;           Having regard to:        -   the report provided for in Rule 40 of the Rules of Procedure         of the Commission;        -   the Commission's decision of 8 September 1988 to bring         the application to the notice of the respondent Government         and invite them to submit written observations on its         admissibility and merits;        -   the observations submitted by the respondent Government on         16 November 1988 and the observations in reply submitted         by the applicant on 12 January 1989;           Having deliberated;           Decides as follows:   THE FACTS           The facts of the case as presented by the parties may be summarised as follows.           The applicant is a Dutch citizen, born in 1966.   At the time of introduction of this application he was detained in the Remand Prison (Huis van Bewaring) of Middelburg, the Netherlands.   He resides at present in Leiden, the Netherlands.   The applicant is a student, but at the time of introduction of this application he was performing compulsory military service.   He is represented before the Commission by Mr.   E. HUMMELS, a lawyer practising in Utrecht, the Netherlands.           On Wednesday 11 March 1987 the applicant, while performing compulsory military service, refused a direct order from a superior to take receipt of a weapon and a uniform.   He persisted in his refusal, despite being warned that refusing an order is a punishable offence.           At 3:45 p.m. that same day the applicant was provisionally arrested (voorlopig arrest) and detained on remand.   At 4:30 p.m. this provisional detention was confirmed by the commanding officer (Commandant).   At 7:00 p.m. the applicant was questioned by the military police (Koninklijke Marechaussee).   On Friday 13 March 1987, he was brought before a prosecuting officer (officier-commissaris) and legal counsel was appointed to represent him.           Five days later, on Monday 16 March 1987, he was brought before the Regional Court-Martial (Arrondissementskrijgsraad) of Arnhem.   The court-martial extended his detention on remand by thirty days, for the lawful purpose of maintaining discipline among other military personnel.           Before the court-martial, the applicant's counsel complained that the applicant had been in detention for five days before being brought before an organ authorised by law to exercise judicial power, in violation of the requirement of "promptness" provided for in Article 5 para. 3 of the Convention.   Counsel also submitted that the court-martial was not an independent and impartial tribunal, and therefore was not authorised to decide on the applicant's detention.           The court-martial stated that Article 5 para. 3 of the Convention did not specify any particular length of time, and that the court-martial had been convened at the earliest possible moment in the circumstances.   These circumstances were that, at that time, the members of the court-martial were engaged in a major, two-yearly military exercise, and that there was an intervening weekend.           The court-martial went on to state that the European Commission of Human Rights had determined in the cases of Sluijs, Zuiderveld and Klappe (Comm.   Report 13.10.82, Eur.   Court.   H.R., Series A no. 78) that a court-martial was authorised to judge on detention on remand.   COMPLAINTS           The applicant complains that after his arrest he was not "promptly" brought before a judicial authority.   He invokes Article 5 para. 3 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 31 March 1987 and registered on 3 April 1987.           On 8 September 1988 the Commission examined the admissibility of the application and decided, in accordance with Rule 42 para. 2 (b) of the Rules of Procedure, to give notice of the application to the respondent Government and to invite them to submit before 18 November 1988 their observations on the admissibility and merits of the application.           The observations of the respondent Government were submitted on 16 November 1988.   An English translation was forwarded on 28 November 1988.           The applicant was invited to submit observations in reply before 28 January 1989.   The applicant's observations were submitted on 12 January 1989.   THE LAW           The applicant has complained that after his arrest he was detained for five days before being brought before the court-martial. Before that time his detention had only been authorised by his commanding officer and a prosecuting officer.   He has invoked Article 5 para. 3 (Art. 5-3) of the Convention.           The respondent Government have submitted that the rules governing military justice do not specify a maximum period of detention before a suspect is brought before a judicial authority. However, in pursuance of previous decisions by the European Court of Human Rights, a ministerial directive of 19 December 1983 indicates that provisional detention should be confirmed or prolonged by a court-martial within 4 days of its inception.   In the present case there were exceptional circumstances which prevented this period from being observed, namely that there was a major military exercise in progress and the 4th day of detention was a Sunday.   The Government also point out that the court-martial was unusually convened on a Monday for this case.           The applicant has replied that similar judicial bodies can convene on weekends if necessary.   Furthermore, arrangements could have been made in advance that members of the court-martial be available despite the military exercise, the dates of which were known well in advance.           The Commission considers that the application raises important questions of law and fact pertaining to the observance of Article 5 para. 3 (Art. 5-3) of the Convention, which can only be determined in an examination of the merits.   No grounds for inadmissibility having been established, the application must be declared admissible.           For these reasons, the Commission           DECLARES THE APPLICATION ADMISSIBLE         without prejudging the merits of the case.   Secretary to the Commission             President of the Commission           (H.C. KRÜGER)                           (C.A. NØRGAARD)