Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 14847/89

by L.

against the Netherlands

The European Commission of Human Rights sitting in private

on 3 September 1991, the following members being present:

MM. C.A. NØRGAARD, President

F. ERMACORA

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

B. MARXER

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 8 November 1988

by L. against the Netherlands and

registered on 31 March 1989 under file No. 14847/89;

Having regard to the report provided for in Rule 47 of the

Rules of Procedure of the Commission;

Having regard to the observations of the respondent Government

submitted on 4 September 1990 and the observations in reply of the

applicant submitted on 31 October 1990;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Dutch citizen, born in 1961 and at present

residing in V., the Netherlands. He is a sergeant in the Royal

Netherlands Armed Forces. Before the Commission, he is represented by

Mr. H.J.M.G.M. van der Meijden, a lawyer practising in Ermelo.

The facts of the case, as submitted by the applicant's

representative, may be summarised as follows.

On 25 September 1987, at 22:20 h, the applicant was

arrested by military police officers on suspicion of having committed

incest with his daughter. On 26 September 1987, at 00:20 h, he was

placed in detention by the competent military officer. On 1 October

1987, at 13:00 h the applicant was brought before the Regional

Court-Martial of Arnhem (Arrondissementskrijgsraad). The Court ordered

his release, because of lack of evidence. On 14 December 1987, the

Military Prosecutor decided not to prosecute the applicant.

On 26 February 1988, the applicant requested compensation for

the days he had been detained on remand. He based his request, inter

alia, on two elements: the moral damage which he suffered in his

private, social and professional life due to having been officially

accused of incest and the duration of his custody, which exceeded the

four days period which the European Court of Human Rights has found to

comply with the concept of "promptness" within the meaning of Article

5 para. 3 of the Convention.

On 19 April 1988, the Regional Court-Martial of Arnhem awarded

the applicant 1.000 Dutch guilders in compensation for unjustified

detention. The Court applied Articles 89 to 91 of the (civilian) Code

of Penal Procedure by analogy, because the Code of Military Procedure

(Rechtspleging bij de Land- en Luchtmacht) does not contain any rule

on how to deal with such cases. It stated, inter alia, that although

his arrest and detention had not been unlawful, it had been

unjustified. The Court, for that reason, considered that the applicant

was entitled to compensation, and, in view of his considerable moral

damage, it awarded him a sum which was four times higher than the

usual amount for the total period of his detention on remand.

However, the Court explicitly rejected the applicant's claim that his

detention after four days had been in violation of the Convention.

The Court stated that the four day period was not strict and that

"the present case was dealt with as quickly as possible, in view of

the fact that, due to circumstances, the preliminary investigation

could not be completed before 1 October 1987."

On 26 May 1988, the applicant appealed to the Military Court

of Appeal (Hoog Militair Gerechtshof). On 31 August 1988, the appeal

was declared inadmissible because the Code of Military Procedure

(Rechtspleging bij de Land- en Luchtmacht) does not provide for an

appeal.

COMPLAINT

The applicant complains that after his arrest he was not

brought promptly before the competent judicial authority. He did not

receive compensation for having been unlawfully detained for a longer

period of time than is commensurate with being brought promptly before

a judicial officer. He invokes Article 5 paras. 3 and 5 of the

Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 8 November 1988 and

registered on 31 March 1989.

On 16 May 1990, the Commission decided to bring the

application to the notice of the respondent Government and to invite

them to submit before 14 September 1990 their written observations on

the admissibility and merits of the application.

The observations of the respondent Government were submitted

on 4 September 1990. The applicant was invited to submit observations

in reply before 2 November 1990.

On 12 October 1990, the President of the Commission decided

that legal aid should be granted to the applicant.

The applicant's observations were submitted on 31 October

1990.THE LAW

1. The applicant complains that after his arrest he was detained

for five days before being brought before a judicial officer and that

the tribunal refused to allow him a compensation for having been

detained unlawfully. He invokes Article 5 paras. 3 and 5

(Art. 5-3, 5-5) of the Convention.

Article 5 para. 3 (Art. 5-3) provides that:

3. Everyone arrested or detained in accordance with the

provisions of paragraph 1(c) of this Article 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.

Article 5 para. 5 (Art. 5-5) provides that:

5. Everyone who has been the victim of arrest or

detention in contravention of the provisions of this Article

shall have an enforceable right to compensation.

The respondent Government does not dispute the fact that the

applicant was not brought promptly before a judicial officer and,

consequently, that Article 5 para. 3 (Art. 5-3) of the Convention was not

respected. It is submitted, however, that the compensation awarded by

the Court-Martial offers an adequate redress of the violation of the

Convention.

The Commission recalls that Article 25 (Art. 25) of the Convention

provides that the Commission may only receive petitions from persons,

non-governmental organisations or groups of individual "claiming to be

the victim of a violation by one of the High Contracting parties of the

rights set forth in (the) Convention". It therefore falls to the

Commission to determine whether, in the present case, the applicant may

claim to be a victim of a violation of the Convention within the

meaning of Article 25 (Art. 25).

The Commission notes that the applicant did not suffer any

material damage and received, for the moral damage, a compensation for

detention without reasonable suspicion. However, the Court-Martial

did not award him a specific compensation for the fact that he had

been detained in violation of Article 5 para. 3 (Art. 5-3) of the

Convention. It is true that the amount of the compensation awarded to

the applicant was four times higher than the usual amount. It

nevertheless clearly appears from the text of the incriminated

judgment that this amount cannot be considered as having been allowed

with a view to compensating the specific damage caused by an unlawful

detention.

The Commission therefore considers that the applicant may

claim to be a victim of the alleged violation of the Convention. After

having made a preliminary examination of the applicant's complaint, it

finds that it cannot be declared manifestly ill-founded. No other

ground for inadmissibility having been established, the application

must, therefore, be declared admissible.

For these reasons, the Commission, by a majority

DECLARES THE APPLICATION ADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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L. v. THE NETHERLANDS

L. v. THE NETHERLANDS

LEXI