CASE OF DE JONG, BALJET AND VAN DEN BRINK AGAINST THE NETHERLANDS
Doc ref: 8805/79;8806/79;9242/81 • ECHR ID: 001-55423
Document date: December 7, 1984
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The Committee of Ministers, under the terms of Article 54 (art. 54) of
the Convention for the Protection of Human Rights and Fundamental
Freedoms (hereinafter referred to as "the convention"),
Having regard to the judgment of the European Court of Human Rights in
the case of "de Jong, Baljet and van den Brink", delivered on
22 May 1984 and transmitted the same day to the Committee of
Ministers;
Recalling that this case had its origin in three applications against
the Netherlands lodged in 1979 and in 1980 with the European
Commission on Human Rights under Article 25 (art. 25) of the
convention by three Dutch nationals, Mr Tjeerd de Jong,
Mr Jan Harmen Henricus Baljet and Mr Gerrit van den Brink alleging
violation of Article 5, paragraphs 1, 3 and 4 (art. 5-1, art. 5-3,
art. 5-4), of Article 13 (art. 13), of Article 14 in conjunction with
Article 5 (art. 14+5) and of Article 18 on its own (art. 18) or in
conjunction with Article 5 (art. 18+5) of the convention;
Recalling that this case had been brought before the Court by the
European Commission of Human Rights;
Whereas in its judgment of 22 May 1984 the Court unanimously:
- Declares that the Government is estopped from relying on the rule
of exhaustion of domestic remedies:
a. in respect of Mr van den Brink;
b. in respect of Mr de Jong and Mr Baljet to the extent specified in
paragraphs 36 and 37 of the judgment;
- Rejects the remainder of the objection pleading non-exhaustion of
domestic remedies;
- Rejects the objection that Mr van den Brink could not be regarded
as a victim within the meaning of Article 25 (art. 25);
- Holds that there has been no breach of paragraph 1 of Article 5
(art. 5-1) in respect of any of the applicants;
- Holds that each applicant has been the victim of a breach of
paragraphs 3 and 4 of Article 5 (art. 5-3, art. 5-4);
- Holds that there has been no breach of Article 14 taken in
conjunction with Article 5 (art. 14+5);
- Holds that it is not necessary also to examine the case under
Article 13 (art. 13) or Article 18 (art. 18);
- Holds that the respondent state is to pay each applicant the sum
of three hundred (300) Dutch Guilders under Article 50 (art. 50);
Having regard to the "Rules concerning the application of Article 54
(art. 54) of the convention";
Having invited the Government of the Netherlands to inform it of the
measures which had been taken in consequence of the judgment having
regard to its obligation under Article 53 (art. 53) of the convention
to abide by the judgment;
Whereas, during the examination of this case by the Committee of
Ministers, the Government of the Netherlands informed the Committee of
Ministers of the measures taken in consequence of the judgment, which
information appears at the appendix to this resolution;
Having taken note of this information and having satisfied itself that
the Government of the Netherlands has paid to the applicants the sum
awarded by the Court under Article 50 (art. 50) of the convention,
Declares that it has exercised its functions under Article 54
(art. 54) of the convention in this case.
Appendix to Resolution DH (84) 7
Information provided by the Government of the Netherlands during
the examination of the case of "de Jong, Baljet and van den Brink"
by the Committee of Ministers
As a consequence of, inter alia, the complaints lodged by the
above-mentioned applicants, the Netherlands Government has taken the
following measures with respect to Article 5, paragraphs 3 and 4
(art. 5-3, art. 5-4) of the convention:
A. In March 1983 the following regulations came into force having
been incorporated in the rules governing the application of military
penal and disciplinary law as laid down by ministerial order.
The following rules shall apply to military suspects remanded in
custody, such as the conscientious objectors in question:
a. The commanding officer may order a serviceman to be remanded or
kept in custody only if two conditions are fulfilled:
1. a remand in custody must be admissible in the case in question,
2. there must be grounds for a remand in the case in question.
b. As soon as the grounds on which the remand in custody was ordered
or ordered to be continued cease to be applicable, the commanding
officer shall order the release of the defendant.
c. If the commanding officer orders the suspect to be taken into or
kept in custody, where possible subsequent to having interviewed the
suspect or having arranged for the suspect to be interviewed on his
behalf, he shall ensure that the military prosecutor is informed of
the case by telephone as soon as possible and in any event no later
than two days after the warrant of arrest is executed.
d. If the suspect is to appear before the military prosecutor, the
commanding officer shall ensure, in consultation with the military
prosecutor, that the time and place of the hearing are such that,
within four days of the execution of the warrant of arrest:
1. the military prosecutor is able to submit his recommendations to
the authority to which the case is to be referred;
2. the authority to which the case is to be referred may issue a
referral order (which shall include a ruling in respect of the
arrest);
3. the defendant may be heard by the examining officer;
4. the defendant may appear before a court martial which shall rule
at the request of the military prosecutor whether or not to uphold the
order of arrest.
B. Bills for the revision of the administration of military
justice are currently under consideration by the Lower House of
Parliament. One of the proposals is that the provisions governing
remands in custody in the Dutch criminal code should also apply to
military servicemen.
C. The Government of the Netherlands has paid to the applicants
the sum awarded by the European Court of Human Rights under Article 50
(art. 50) of the convention.