CEDH · CASELAW;REPORTS;ENG — 5 septembre 1990

.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 }  Application No. 12843/87   Jacobus Petrus KOSTER   against   the NETHERLANDS   REPORT OF THE COMMISSION   (adopted on 3 September 1990)                           TABLE OF CONTENTS                                                                 Page   I.       INTRODUCTION (paras. 1-18)                              1           A. The application (paras. 2-5)                         1           B. The proceedings (paras. 6-13)                        1           C. The present Report (paras. 14-18)                    2   II.      ESTABLISHMENT OF THE FACTS (paras. 19-32)               3           A. Particular circumstances of the case (19-25)         3           B. Relevant domestic law (paras. 26-32)                 4   III.     OPINION OF THE COMMISSION (paras. 33-44)                6           A. Point at issue (para. 33)                            6           B. Article 5 para. 3 of the Conventon (paras. 34-43)    6           C. Conclusion (para. 44)                                8   APPENDIX I   : History of the proceedings                        9   APPENDIX II : Decision on the admissibility of               the application                                  10   I.       INTRODUCTION   1.       The following is an outline of he case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.       The application   2.       The applicant, Jacobus Petrus KOSTER, 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 is at present residing in Leiden, the Netherlands. In the proceedings before the Commission he is represented by Mr.   E. Hummels, a lawyer practising in Utrecht.   3.       The application is directed against the Netherlands.   The Netherlands Government are represented by Ms.   Dorothea S. van Heukelom, of the Netherlands Ministry of Foreign Affairs, as Agent.   4.       While performing compulsory military service, the applicant refused a direct order from a superior to take receipt of a weapon and a uniform.   He was immediately provisionally arrested and detained on remand.   That same day his provisional detention was confirmed by the commanding officer and two days later he was brought before a prosecuting officer.   After five days in detention, the applicant was brought before the Regional Court-Martial of Arnhem, which confirmed and extended his detention on remand.   5.       The applicant complains that after his arrest he was not brought "promptly" before a judicial authority and alleges a violation of Article 5 para. 3 of the Convention.   B.       The proceedings   6.       The application was introduced on 31 March 1987 and registered on 3 April 1987.   7.       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.   8.       The observations of the respondent Government were submitted on 16 November 1988.   An English translation was forwarded on 28 November 1988.   9.       The applicant was invited to submit observations in reply before 28 January 1989.   The applicant's observations were submitted on 12 January 1989.   10.      The Commission declared the application admissible on 6 September 1989.   11.      On 10 November 1989 the applicant was granted legal aid.   12.      The respondent Government submitted further written observations on 21 November 1989.   The applicant replied on 2 January 1990.   13.      After declaring the case admissible the Commission, acting in accordance with Article 28 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   In the light of the parties' reaction, the Commission now finds that there is no basis upon which such a settlement can be effected.   C.       The present Report   14.      The present Report was drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:                MM.   C. A. NØRGAARD, President                   S. TRECHSEL                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A. S. GÖZÜBÜYÜK                   A. WEITZEL                   J. C. SOYER                   H. G. SCHERMERS                   H. DANELIUS              Mrs.   G. H. THUNE              Sir   Basil HALL              M.    F. MARTINEZ              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   J.-C. GEUS                   A.V. ALMEIDA RIBEIRO   15.      The text of this Report was adopted on 3 September 1990 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 1 of the Convention.   16.      The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is           a) to establish the facts, and           b) to state an opinion as to whether the facts found            disclose a breach by the State concerned of its            obligations under the Convention.   17.      A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I, and the Commission's decision on the admissibility of the application as Appendix II.   18.      The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.      ESTABLISHMENT OF THE FACTS   A.       Particular circumstances of the case   19.      While performing compulsory military service, on Wednesday 11 March 1987, the applicant 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 a direct order is a punishable offence.   20.      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 an investigating officer (officier-commissaris) and legal counsel was appointed to represent him.   21.      On Monday 16 March 1987, he was brought before the Regional Court-Martial (Arrondissementskrijgsraad) of Arnhem.   The court-martial, meeting in chambers, confirmed his detention on remand and prolonged it by thirty days, for the purpose of maintaining discipline among other military personnel.   22.      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. Counsel submitted that this was in violation of the requirement of "promptness" provided for in Article 5 para. 3 of the Convention, which requirement had been interpreted by the Dutch courts to mean not later than four days after the arrest.   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.   23.      The court-martial stated that Article 5 para. 3 of the Convention did not contain a strict time-limit within which an arrest must be confirmed.   It furthermore held that, in the applicant's case, the court-martial had been convened at the earliest possible moment, in the circumstances.   24.      These circumstances were that the fourth day of the applicant's provisional detention was a Sunday and that his arrest fell in a period when the military members of the court-martial were participating in a major, two-yearly, military exercise.   This exercise, a regular event known as Wintex-Cimex (winter exercise - civil military exercise), began, in the year in question, on 4 March and ended on 17 March 1987.   25.      The court-martial went on to state that the European Commission of Human Rights had determined in the cases of Van der 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.   B.       Relevant domestic law   26.      The pre-trial arrest and detention of offenders who are serving in the army are governed by the rules of military penal procedure set out in the Administration of Justice for the Army and Air Force (Rechtspleging bij de Land- en Luchtmacht), the text of which was first issued by Royal Decree of 20 July 1814 and has subsequently been substantially amended.   The relevant provisions hereof may be summarised as follows.   27.      Section 4 states that every officer and non-commissioned officer have the authority to take into provisional custody military personnel of lower rank who are suspected of having committed a serious crime, if circumstances warrant that they be immediately taken into detention.   Section 5 stipulates that this provisional detention shall not last longer than 24 hours unless it is prolonged by the commanding officer in accordance with Section 7.   28.      Section 7 provides, inter alia, that the commanding officer shall deal with the case without delay.   He may prolong the provisional detention for three reasons, inter alia, if the arrest is required in order to maintain discipline among other military personnel.   Furthermore, the commanding officer shall immediately report, directly to the relevant commanding general, each instance of provisional detention which exceeds four days.   29.      The commanding general refers the case to the military judge, who determines the nature of the judicial investigation.   Section 14 contains various stipulations to which the written order referring the case to the judge must conform.   This written order shall also indicate whether or not the accused is to remain in detention, and shall indicate the reason.   A copy of this order is delivered to the accused and to the military prosecutor (auditeur-militair).   30.      From the date of the order referring the accused to the military judge, the duration of the provisional detention shall not exceed 14 days (Section 31).   Where the continuation of the detention has been ordered, the accused shall be heard within four days by the investigating officer (officier-commissaris), in accordance with Section 33.   This Section also stipulates that the court-martial shall provide the accused and his counsel the opportunity to be heard, before confirming or prolonging the provisional detention.   31.      On 21 March 1983 a Government directive was issued concerning the bringing of military personnel in provisional detention before a judicial authority.   This directive provides as follows:   (Translation from Dutch)   "In execution of Article 5 para. 3 of the European Convention of Human Rights the aim is to have the provisional detention of a member of the military presented to the court-martial in chambers for confirmation or prolongation within four days of the arrest.   To this end, the following should be observed.   1.   Every officer or non-commissioned officer who provisionally arrests a member of the military suspected of having committed a crime, shall ensure that the arrested person's Commanding Officer (C.O.) is informed of the arrest as soon as possible.   2.   If, after having heard the accused, the C.O. considers that the detention should be maintained/prolonged, he, or, for example, the relevant brigadier of the military police (Koninklijke Marechaussee) in his name, shall inform by telephone the prosecuting officer (Auditeur-militair/Fiscaal) of the arrest as soon as possible, or, at the latest, within two days of the arrest.   3.   If the C.O. decides to have the accused brought before the prosecuting officer, the time and place on which this is to occur shall be chosen by, or in the name of, the C.O. together with the prosecuting officer, such that, in normal circumstances, within four days of the arrest:        a. the accused can be brought before the prosecuting         officer (Auditeur-militair/Fiscaal, A.M./Fisc.);        b. the prosecuting officer can submit his         recommendation on detention to the authority         which must refer the case to the court-martial;        c. this authority can issue a written order of         referal (which shall include a statement         on the arrest);        d. the suspect can be heard by the investigating         officer (officier-commissaris);        e. the accused's arrest and detention can be         presented by the prosecuting officer to the         court-martial for confirmation or prolongation.   4.   The branches of the military shall amend their relevant regulations (VS27-1 and VVKM 142) in accordance with this directive."   32.      This directive was incorporated into the Regulation on the application of military penal and disciplinary law (Voorschrift Toepassing Militair straf- en tuchtrecht KL/KLu) by Ministerial Decree of 19 December 1983.   III.     OPINION OF THE COMMISSION   A.       Point at issue   33.      The only point at issue in the present case is whether there has been a violation of Article 5 para. 3 (Art. 5-3) of the Convention.   B.       Article 5 para. 3 (Art. 5-3) of the Convention   34.      This provision reads as follows:   "3.       Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article (Art. 5-3) shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial."   35.      The applicant submits that he was arrested and provisionally detained for five days before being brought before the court-martial to have his detention confirmed.   He argues that until that time his detention had only been authorised by his commanding officer and a prosecuting officer, who are not authorised to exercise judicial power.   He alleges that the five day period was not "promptly" within the meaning of Article 5 para. 3 (Art. 5-3).   36.      The respondent Government submit that, pursuant to previous judgments by the European Court of Human Rights, a time-limit of four days was introduced into the rules on military detention on remand, within which the accused is to be brought before the court-martial in order to have his detention confirmed.   The Government maintain, however, that the present case is exceptional, and that, therefore, the period of five days satisfied the requirements of Article 5 para. 3 (Art. 5-3).   These exceptional circumstances were that the applicant's detention began on a Wednesday afternoon during a week when a major military exercise was being conducted.   The court-martial was convened as soon as possible in view of the fact that the end of the four day time-limit was a Sunday afternoon and the fact that the military members of the court-martial were unavailable due to their being engaged in this major military exercise.   Finally, the Government submit that they have introduced legislation in Parliament to further reduce the relevant statutory time-limit to three days, and, in any event, the applicant has suffered no prejudice by the delay in the confirmation of his provisional detention, as the full period of his detention on remand was subsequently subtracted from his prison sentence upon his conviction.   37.      The applicant submits in reply that the majority of the civilian courts in the Netherlands do sit on weekends if necessary in order to confirm detention of persons provisionally arrested, although they prefer to deal with such matters before a weekend intervenes. Therefore, there is no reason why the court-martial in chambers could not do the same.   Furthermore, there are 136 persons appointed as military members of the court-martial of Arnhem and the major military exercise was a regular event, the dates of which were known well in advance.   In these circumstances, two persons could have been immediately made available to sit on the court-martial.   38.      The Commission notes first of all that the applicant's arrest and detention on remand came within the ambit of Article 5 para. 1 (c) (Art. 5-1-c) as required for the applicability of Article 5 para. 3 (Art. 5-3), and that the court-martial meeting in chambers possesses the necessary characteristics of a judicial authority for the purposes of the opening part of Article 5 para. 3 (Art. 5-3).   It recalls here the case of De Jong, Baljet and Van den Brink (Eur. Court H.R., judgment of 22 May 1984, Series A No. 77, p. 21, para. 44 and p. 24, para. 51).   39.      It remains to be examined whether or not the period during which the applicant was held in detention on remand before being brought before the court-martial in chambers satisfies the requirement of promptness laid down in Article 5 para. 3 (Art. 5-3).   40.      The Commission recalls that the assessment of "promptness" has to be made in the light of the object and purpose of Article 5 (Art. 5). Furthermore, promptness is to be assessed in each case according to its special features (see the above-mentioned De Jong, Baljet and Van den Brink judgment, Series A No. 77, p. 25, para. 52).   However, the Commission recalls that in the case of Brogan and others (Eur. Court H.R., judgment of 29 November 1988, Series A No. 145, p. 32, para. 59) the Court made the following statement:   "The use in the French text [of paragraph 3] of the word 'aussitôt', with its constraining connotation of immediacy, confirms that the degree of flexibility attaching to the notion of 'promptness' is limited, even if the attendant circumstances can never be ignored for the purposes of the assessment under paragraph 3. [...] [But] the significance to be attached to [the special features of the case] can never be taken to the point of impairing the very essence of the right guaranteed by Article 5 para. 3 (Art. 5-3), that is to the point of effectively negativing the State's obligation to ensure a prompt release or a prompt appearance before a judicial authority."   41.      Furthermore, in the above-mentioned case of Brogan and others, the Court accepted that the special exigencies of the context of terrorism in Northern Ireland allowed for a longer period of time that a person may be held before being brought before a judicial authority without violating Article 5 para. 3 (Art. 5-3) of the Convention. Nevertheless, the Court held that even a period of four days and six hours spent in police custody fell "outside the strict constraints as to time permitted by the first part of Article 5 para. 3 (Art. (5-3)" (see above reference Series A No. 145, p. 33, paras. 61 and 62).   42.      In the present case, the Commission considers that, even taking due account of the exigencies of normal military life and military justice, the exceptional circumstances to which the Government refer cannot justify the applicant's provisional detention for five days before he was brought before the court-martial.   To consider otherwise would seriously weaken the procedural guarantee of the first part of Article 5 para. 3 (Art. 5-3).   43.      In consequence, the Commission finds that the applicant was not brought "promptly" before a judge or other judicial authority following his arrest.   C.       Conclusion   44.      The Commission concludes, by a unanimous vote, that there has been a violation of Article 5 para. 3 (Art. 5-3) of the Convention.     Secretary to the Commission              President of the Commission              (H.C. KRÜGER)                           (C.A. NØRGAARD)   APPENDIX I   HISTORY OF THE PROCEEDINGS   Date                       Item -----------------------------------------------------------------------   31 March 1987              Introduction of the application     3 April 1987              Registration of the application   Examination of admissibility     8 September 1988          Commission's decision to invite the                           Government to submit observations on                           the admissibility and merits of the                           application   16 November 1988           Government's observations   12 January 1989            Applicant's observations     6 September 1989          Commission's decision to declare the                           application admissible   Examination of the merits   10 November 1989           Commission's decision to grant legal aid   21 November 1989           Government's further observations     2 January   1990           Applicant's reply     3 September 1990          Commission's deliberations on the merits,                           final vote and adoption of the Report