THE RELEVANT FACTS
The above applicants, as well as two others who are not concerned with
the issue under consideration in this decision, lodged applications
with the Commission complaining that their punishment for breaches of
the rules of military discipline in the Netherlands was inconsistent
with various provisions of the Convention.
The facts of these cases as they have been submitted by the applicants,
and which are not contested by the respondent Government, disclose that
all applicants were, at the time of lodging their applications,
soldiers serving in different non-commissioned ranks in the Netherlands
armed forces. They were punished on separate occasions by their
respective company commanders for having contravened the rules of
military discipline and sentenced to several days of either "light" or
"aggravated" or "strict" arrest, or to service in a disciplinary unit.
After having unsuccessfully appealed to the competent military
authorities and to the Military Court, the applicants introduced their
applications before the Commission.
The particular facts which the Commission was called upon to deal with
in the present decision may be summarised as follows:
The first applicant (C. J. M. ENGEL) was arrested by the Military
Police on 20 March 1971, after he had twice disregarded disciplinary
penalties imposed on him, and was held during two days under strict
arrest in accordance with Article 44 of the Act relating to Military
Discipline, 1903. He considered that this procedure was irregular under
Article 45 of the said Act which limits such detention to 24 hours, and
submitted that therefore his detention was inconsistent with Article
5 (1) (c) of the Convention as not having been imposed in a procedure
prescribed by law and as not being lawful detention within the meaning
of that provision.
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(1) These applications were declared admissible on 17 July 1972 (see
Collection of Decisions, Vol. 42, p. 61).
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The second and third applicants (J. C. DONA and W. A. C. SCHUL) were
punished for having published articles which were found by the military
court to undermine military discipline. They complained, inter alia,
that, insofar as they were punished for publications in a camp journal
which was the principal means of communication for the Servicemen's
Association (Vereniging van Dienstplichtige Militarien), the right to
freedom of association within the meaning of Article 11 of the
Convention had been violated in that the punishment caused the
operations of that Association to be hindered.
Proceedings before the Commission
On 17 July 1972 the Commission, after having obtained written
observations from the Government on 2 May 1972 and from the applicants
on 21 June 1972, declared admissible most parts of the applications
including the above complaints by the applicants (see Collection of
Decisions, Vol. 42, p. 61).
In pursuance of its task under Article 28 (a) of the Convention, the
Commission then invited the parties to submit written observations on
the merits of the applications. Such observations were submitted by the
applicants on 27 October 1972 and by the respondent Government on 13
February 1973. In their submissions the respondent Government also
invoked Article 29 of the Convention in respect of the applicants'
complaints set out above.
By order of the President of the Commission, dated 22 February 1973,
the applicants were invited to submit written observations on the
Article 29 issues raised by the respondent Government. They complied
with this order on 8 March 1973.
The relevant submissions of the Parties
1. The respondent Government submit that, insofar as the first
applicant alleges a violation of Article 5 (1) (c) of the Convention
by reason of his provisional detention from 20 to 22 March 1971, this
complaint had first been raised in the applicants' observations on the
admissibility of his application, dated 21 June 1972, i.e. more than
six months after 23 June 1971 being the date of the final decision by
the Supreme Military Tribunal in his case.
They further submit that, insofar as the second and third applicants
allege a violation of Article 11 of the Convention by reason of the
restrictions imposed on the publication and distribution of the camp
journal, these complaints had also been first raised in the applicants'
observations on admissibility of 21 June 1972, i.e. more than six
months after 17 November 1971 being the date of the final decision by
the Supreme Military Court in their cases.
The Government maintain that, in these circumstances, the respective
complaint should be rejected under Article 29 of the Convention, on the
ground of non-observance of the six months' rule mentioned in Article
27 (3), read in conjunction with Article 26 of the Convention.
2. The applicants first compare Article 29 with Articles 26 and 27
of the Convention and submit, that while the latter provisions impose
an obligation on the Commission to declare inadmissible complaints
which fall within their terms, the Commission is free, under the terms
of Article 29, to consider whether or not it is possible, at the
present stage of the proceedings, to examine the question of
admissibility. The applicants submit that their cases do not justify
such examination. Both the Government and the Commission had notice of
the applicants' above complaints at a time when the Commission had not
yet reached its decision on admissibility, and the Government could
have made their objections under Articles 26 and 27 at that time.
Furthermore, the facts of the case on which the complaints are based,
have never changed and were known prior to the Commission's decision
on admissibility.
In addition, the applicants submit that it was clear from the
preparatory works of Article 29 of the Convention that provision
referred only to the grounds of inadmissibility contained in Article
27 (2), but not to Article 26 of the Convention. This implied that the
Commission's power of rejection under Article 29 could be exercised
only where, in the course of its examination, it came to the unanimous
conclusion that the petition was manifestly ill-founded or an abuse of
the right of petition, but not that it was out of time or that domestic
remedies had not been exhausted. The applicants refer in this
connection to the Explanatory Report on the Third Protocol to the
Convention and to the Commission's decision in the E.R. Case (No.
5207/71. Collection of Decisions, Vol. 42, p. 85).
Furthermore, the rationale of Article 29 was to avoid that inadmissible
applications must be transmitted to the Committee of Ministers for
decision. However, in their cases, even if the Commission exercised its
power of rejection under Article 29 with regard to these separate
complaints, the remainder of the applications would nevertheless have
to be put before the Committee of Ministers.
Finally, with reference to his particular case, Mr. Engel submits that
he has always alleged a violation of Article 5 of the Convention and
that he must have the opportunity, in the course of the proceedings
before the Commission, further to explain his allegations. Reference
to the particular paragraphs of the Article invoked and the submission
of further arguments subsequent to the lodging of his application
cannot be regarded as the introduction of a new application.
Furthermore, according to the Commission's established case-law, it is
not necessary to mention expressly the particular Article whose
violation was alleged. Finally, the Commission was competent ex officio
to examine the facts of a case with regard to their conformity with the
Convention.
MM. Dona and Schul submit that the above considerations apply to their
cases as well. In addition they point out that their allegations under
Article 11 have been submitted in order to clarify their complaints
made under Article 10 of the Convention. Insofar as the allegations of
facts which have arisen only after the introduction of the
applications, the applicants refer to the European Court's judgments
in the "Stögmüller" and "Matznetter" cases where such allegations have
been admitted.
The applicants maintain that, in view of these considerations, the
Netherlands Government's plea under Article 29 of the Convention should
be rejected.
THE LAW
1. The Commission first considered the question whether or not
Article 29 (Art. 29) of the Convention refers only to the grounds of
inadmissibility contained in Article 27 (2) (Art. 27-2), and not to
those in Article 26 (Art. 26) of the Convention, with the result that
the Commission's power of rejection cannot be exercised in cases where
non-exhaustion of domestic remedies or non-observance of the six
months' time-limit is established in the course of the examination on
the merits.
However, the Commission points out that Article 29 (Art. 29) refers to
Article 27 (Art. 27) as a whole and thus also to Article 27 (3) (Art.
27-3) which in turn refers to Article 26 (Art. 26) of the Convention.
It follows that the Commission is not, for the above reason, precluded
from rejecting an application under Article 29 (Art. 29) of the
Convention if, in the course of the examination it finds that any of
the grounds for non-acceptance mentioned in Article 26 (Art. 26) of the
Convention, including non-observance of the six months' rule, has been
established.
2. The Commission has next considered the applicant's submission
that, in the circumstances of their cases, the Government was stopped
from raising the question of non-observance of the six months'
time-limit at the present stage of the proceedings on the ground that
they failed to raise this ground of inadmissibility at the
admissibility stage although they had ample opportunity of doing so.
However, the Commission finds that Article 29 (Art. 29) of the
Convention confers upon it the power to examine at any stage of the
proceedings on the merits, ex officio and irrespective of any plea by
the parties, the question whether or not one of the grounds provided
for in Article 27 (Art. 27) had been established. This competence of
the Commission is complementary to the Commission's established
competence ex officio to examine the facts of a given case with a view
to determining its admissibility under the Convention irrespective of
any specific provisions of the Convention invoked by the applicant. Its
object is to enable the Commission to halt, in the circumstances set
out above and on condition that the Commission is unanimous, the
procedural machinery contemplated by the Convention in the event of the
Commission accepting a petition referred to it.
It follows that it is irrelevant whether or not the respondent
Government in the present proceedings before the Commission have
properly invoked Article 29 (Art. 29) of the Convention. It suffices
that the Commission, at any stage of its examination of the petition
in accordance with Article 28 (a) (Art. 28-a) of the Convention, finds
unanimously that the existence of one of the grounds for non-acceptance
provided for in Article 27 (Art. 27) has been established.
3. The Commission has finally examined the question whether or not,
in the present case, the applicants' complaints set out above should
be rejected, in application of Article 29 (Art. 29) of the Convention,
for non-observance of the six months' rule within the meaning of
Article 26 (Art. 26) of the Convention or on any other ground under
Article 27 (Art. 27).
The Commission here observes that the applicant submitted the complete
facts of their cases within the time-limit prescribed, including those
facts which form the subject matter of their complaints to which the
Government now objects by invoking Article 29 (Art. 29) of the
Convention. The applicants have further alleged that the Convention has
been violated by reason of these facts. It is true that the applicants
did not, at the time of submitting their complaints to the Commission,
specify the exact provisions of the Convention which they considered
as having been violated. Moreover, two applicants, after having based
their complaints on Article 10 (Art. 10) of the Convention, have
subsequently invoked Article 11 (Art. 11) with regard to the same
facts. However, in accordance with the Commission's established
case-law, it is not necessary that an applicant should have to specify
the provisions of the Convention on which he relies. Moreover, the
Commission is competent to consider, even ex officio, whether the facts
referred to it in an application disclose violations of the Convention
other than those which the applicant has alleged (see Commission's
opinion in its report on the Neumeister Case and European Court's
judgment of 27 June 1968 in that case).
It follows that the applicants' respective complaints are not out of
time within the meaning of Article 26 (Art. 26) of the Convention and
can therefore not be rejected under Article 29 (Art. 29) on that
ground. Nor has the existence of any other ground of non-acceptance
mentioned in Article 27 (Art. 27) of the Convention been established.
Now therefore the Commission DECIDES NOT TO REJECT THE RELEVANT PARTS
OF THE APPLICATION UNDER ARTICLE 29 (Art. 29) OF THE CONVENTION.