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
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