The Committee of Ministers,
Having regard to Article 54 (art. 54) of the Convention for the
Protection of Human Rights and Fundamental Freedoms (hereinafter
referred to as "the convention");
Having regard to the judgments of the European Court of Human
Rights in the "case of Engel and others" delivered on 8 June 1976 and
23 November 1976 and transmitted on the same dates to the Committee of
Ministers;
Recalling that the European Commission of Human Rights had been seized
in 1971, under Article 25 (art. 25) of the convention, by five
applications lodged against the Kingdom of the Netherlands by five
Dutch nationals;
Recalling that the case had been brought before the European Court of
Human Rights on 8 October 1974 by the European Commission of Human
Rights and on 17 December 1974 by the Government of the Kingdom of the
Netherlands in pursuance of Article 48 (art. 48) of the convention;
Whereas in its judgment of 8 June 1976 the Court:
1. Holds, unanimously, that Article 5 (art. 5) was not applicable to
the light arrest of two applicants;
2. Holds, by twelve votes to one, that it was also not applicable to
the aggravated arrest of one applicant or to the interim aggravated
arrest of two other applicants;
3. Holds, by eleven votes to two, that the committal of two
applicants to a disciplinary unit did not violate Article 5
paragraph 1 (art. 5-1);
4. Holds, by nine votes to four, that the whole period of one
applicant's provisional strict arrest violated Article 5, paragraph 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, paragraph 1 (art. 5-1), in so far 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 two applicants to a
disciplinary unit and one applicant's provisional arrest did not
violate Articles 5, paragraph 1, and 14 taken together (art. 14+5-1);
7. Holds, by twelve votes to one, that there has been no breach of
Article 5, paragraph 4 (art. 5-4), as regards the committal of two
applicants to a disciplinary unit;
8. Holds, by eleven votes to two, that Article 6 (art. 6) was not
applicable to one applicant 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 another
applicant;
11. Holds, by eleven votes to two, that there was a breach of
Article 6, paragraph 1 (art. 6-1), in the case of three applicants in
so far as hearings before the Supreme Military Court took place in
camera;
12. Holds, unanimously, that there was no breach of Article 6,
paragraph 2 (art. 6-2), in the case of two applicants;
13. Holds, unanimously, that there was no breach of Article 6,
paragraph 3 (b) (art. 6-3-b), in the case of three applicants;
14. Holds, by nine votes to four, that there was no breach of
Article 6, paragraph 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, paragraph 3 (d) (art. 6-3-d), in the case of one applicant;
16. Holds, by twelve votes to one, that there was no breach of
Article 6, paragraph 3 (d) (art. 6-3-d), in the case of two
applicants;
17. Holds, unanimously, that there was no breach of Articles 6 and 14
(art. 14+6) taken together in the case of three applicants;
18. Holds, unanimously, that there is no need to rule on the
complaint based by two applicants 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 (art. 14+10), 17
(art. 17+10) or 18 (art. 18+10) in the case of two applicants;
20. Holds, unanimously, that there was no breach of Article 11
(art. 11) in the case of two applicants;
21. Holds, unanimously, that the question of the application of
Article 50 (art. 50) does not arise in the case of one applicant or
for those of the complaints of four other applicants which the Court
has not herein retained;
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 one
applicant and in the case of three other applicants;
Whereas in its judgment of 23 November 1976 relating to the
application of Article 50 (art. 50) of the convention, the Court holds
unanimously that the Kingdom of the Netherlands is to pay to one
applicant the sum of one hundred Dutch guilders; and that item 11 of
the operative provisions of its judgment of 8 June 1976 amounts for
three applicants to adequate satisfaction under Article 50
(art. 50);
Having regard to the "Rules concerning the application of
Article 54 (art. 54) of the convention";
Having invited the Government of the Kingdom of the Netherlands
to inform it of the measures which it had taken in consequence of the
judgments, having regard to its obligation under Article 53
(art. 53) of the convention to abide by the judgments;
Whereas during the examination of this case by the Committee of
Ministers, the Government of the Kingdom of the Netherlands informed
the Committee of the measures taken in consequence of the judgments,
which information appears in the appendix to this resolution;
Having taken note of this information and having satisfied itself
that this government has awarded the just satisfaction provided for in
the judgments of the Court of 23 November 1976,
Declares that it has exercised its function under Article 54
(art. 54) of the convention in this case.
Appendix to Resolution (77) 10
Information provided by the Government of
the Kingdom of the Netherlands during the examination
of the case of "Engel and others" before the Committee of Ministers
In its judgment of 8 June 1976 in the case of Engel and others, the
European Court of Human Rights ruled that in the case of one
applicant, his provisional strict arrest constituted a violation of
Article 5, paragraph 1 (art. 5-1), of the convention, and that in the
case of three other applicants, there had been violation of Article 6,
paragraph 1 (art. 6-1), of the convention owing to the fact that the
Supreme Military Court had heard their case in closed session.
These cases were tried in the Netherlands during 1970 and 1971. As the
Court found in paragraphs 13, 24, 63 and 64 of its judgment, following
the amendment of 1 November 1974, Netherlands military disciplinary
law no longer makes provision for penalties which, according to the
criteria indicated by the Court itself, can be considered as
constituting a deprivation of liberty within the meaning of Article 5
(art. 5), or for other penalties such that the procedure under which
they are imposed can be regarded as criminal proceedings according to
the Court's interpretation of this term. Provisional arrest, strict
arrest and committal to a disciplinary unit were abolished by this
amendment.
Consequently, violations of Articles 5 and 6 (art. 5, art. 6) of the
convention of the kind found by the Court cannot occur under the
legislation currently in force. The Netherlands Government therefore
considers it unnecessary to take any other legislative measures.
In a letter to all the Ministers of the government, the Minister
of Justice has drawn his colleagues' attention to the terms of the
Court's judgment and has urged them to take account of it when
elaborating any new regulations on matters of discipline.
In accordance with the judgment of the Court of 23 November 1976
relating to the application of Article 50 (art. 50) of the European
Convention in the case in question, the sum of 100 Netherlands florins
was paid to the applicant's lawyer.