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)