CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 3 septembre 1991

.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. 14847/89                       by L.                       against the Netherlands             The European Commission of Human Rights sitting in private on 3 September 1991, the following members being present:                 MM. C.A. NØRGAARD, President                   F. ERMACORA                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS              Mrs.   G. H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ RUIZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   J.-C. GEUS                   A.V. ALMEIDA RIBEIRO                   M.P. PELLONPÄÄ                   B. MARXER                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 8 November 1988 by L. against the Netherlands and registered on 31 March 1989 under file No. 14847/89;           Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;           Having regard to the observations of the respondent Government submitted on 4 September 1990 and the observations in reply of the applicant submitted on 31 October 1990;           Having deliberated;           Decides as follows:   THE FACTS           The applicant is a Dutch citizen, born in 1961 and at present residing in V., the Netherlands.   He is a sergeant in the Royal Netherlands Armed Forces.   Before the Commission, he is represented by Mr.   H.J.M.G.M. van der Meijden, a lawyer practising in Ermelo.           The facts of the case, as submitted by the applicant's representative, may be summarised as follows.           On 25 September 1987, at 22:20 h, the applicant was arrested by military police officers on suspicion of having committed incest with his daughter.   On 26 September 1987, at 00:20 h, he was placed in detention by the competent military officer.   On 1 October 1987, at 13:00 h the applicant was brought before the Regional Court-Martial of Arnhem (Arrondissementskrijgsraad).   The Court ordered his release, because of lack of evidence.   On 14 December 1987, the Military Prosecutor decided not to prosecute the applicant.           On 26 February 1988, the applicant requested compensation for the days he had been detained on remand.   He based his request, inter alia, on two elements: the moral damage which he suffered in his private, social and professional life due to having been officially accused of incest and the duration of his custody, which exceeded the four days period which the European Court of Human Rights has found to comply with the concept of "promptness" within the meaning of Article 5 para. 3 of the Convention.           On 19 April 1988, the Regional Court-Martial of Arnhem awarded the applicant 1.000 Dutch guilders in compensation for unjustified detention.   The Court applied Articles 89 to 91 of the (civilian) Code of Penal Procedure by analogy, because the Code of Military Procedure (Rechtspleging bij de Land- en Luchtmacht) does not contain any rule on how to deal with such cases.   It stated, inter alia, that although his arrest and detention had not been unlawful, it had been unjustified.   The Court, for that reason, considered that the applicant was entitled to compensation, and, in view of his considerable moral damage, it awarded him a sum which was four times higher than the usual amount for the total period of his detention on remand. However, the Court explicitly rejected the applicant's claim that his detention after four days had been in violation of the Convention. The Court stated that the four day period was not strict and that "the present case was dealt with as quickly as possible, in view of the fact that, due to circumstances, the preliminary investigation could not be completed before 1 October 1987."           On 26 May 1988, the applicant appealed to the Military Court of Appeal (Hoog Militair Gerechtshof).   On 31 August 1988, the appeal was declared inadmissible because the Code of Military Procedure (Rechtspleging bij de Land- en Luchtmacht) does not provide for an appeal.     COMPLAINT           The applicant complains that after his arrest he was not brought promptly before the competent judicial authority.   He did not receive compensation for having been unlawfully detained for a longer period of time than is commensurate with being brought promptly before a judicial officer.   He invokes Article 5 paras. 3 and 5 of the Convention.     PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 8 November 1988 and registered on 31 March 1989.           On 16 May 1990, the Commission decided to bring the application to the notice of the respondent Government and to invite them to submit before 14 September 1990 their written observations on the admissibility and merits of the application.           The observations of the respondent Government were submitted on 4 September 1990.   The applicant was invited to submit observations in reply before 2 November 1990.           On 12 October 1990, the President of the Commission decided that legal aid should be granted to the applicant.           The applicant's observations were submitted on 31 October 1990.     THE LAW   1.       The applicant complains that after his arrest he was detained for five days before being brought before a judicial officer and that the tribunal refused to allow him a compensation for having been detained unlawfully.   He invokes Article 5 paras. 3 and 5 (Art. 5-3, 5-5) of the Convention.           Article 5 para. 3 (Art. 5-3) provides that:   3.       Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article 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.           Article 5 para. 5 (Art. 5-5) provides that:   5.       Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.           The respondent Government does not dispute the fact that the applicant was not brought promptly before a judicial officer and, consequently, that Article 5 para. 3 (Art. 5-3) of the Convention was not respected.   It is submitted, however, that the compensation awarded by the Court-Martial offers an adequate redress of the violation of the Convention.           The Commission recalls that Article 25 (Art. 25) of the Convention provides that the Commission may only receive petitions from persons, non-governmental organisations or groups of individual "claiming to be the victim of a violation by one of the High Contracting parties of the rights set forth in (the) Convention".   It therefore falls to the Commission to determine whether, in the present case, the applicant may claim to be a victim of a violation of the Convention within the meaning of Article 25 (Art. 25).           The Commission notes that the applicant did not suffer any material damage and received, for the moral damage, a compensation for detention without reasonable suspicion.   However, the Court-Martial did not award him a specific compensation for the fact that he had been detained in violation of Article 5 para. 3 (Art. 5-3) of the Convention.   It is true that the amount of the compensation awarded to the applicant was four times higher than the usual amount.   It nevertheless clearly appears from the text of the incriminated judgment that this amount cannot be considered as having been allowed with a view to compensating the specific damage caused by an unlawful detention.           The Commission therefore considers that the applicant may claim to be a victim of the alleged violation of the Convention.   After having made a preliminary examination of the applicant's complaint, it finds that it cannot be declared manifestly ill-founded.   No other ground for inadmissibility having been established, the application must, therefore, be declared admissible.             For these reasons, the Commission, by a majority           DECLARES THE APPLICATION ADMISSIBLE.     Secretary to the Commission             President of the Commission             (H.C. KRÜGER)                            (C.A. NØRGAARD)