Lexploria

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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KOSTER v. THE NETHERLANDS

KOSTER v. THE NETHERLANDS

LEXI