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CASE OF ENGEL AND OTHERS

Doc ref: 5100/71;5101/71;5102/71;5354/72;5370/72 • ECHR ID: 001-55402

Document date: April 20, 1977

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CASE OF ENGEL AND OTHERS

Doc ref: 5100/71;5101/71;5102/71;5354/72;5370/72 • ECHR ID: 001-55402

Document date: April 20, 1977

Cited paragraphs only

The Committee of Ministers,

Having regard to 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 judgments of the European Court of Human

Rights in the "case of Engel and others" delivered on 8 June 1976 and

23 November 1976 and transmitted on the same dates to the Committee of

Ministers;

Recalling that the European Commission of Human Rights had been seized

in 1971, under Article 25 (art. 25) of the convention, by five

applications lodged against the Kingdom of the Netherlands by five

Dutch nationals;

Recalling that the case had been brought before the European Court of

Human Rights on 8 October 1974 by the European Commission of Human

Rights and on 17 December 1974 by the Government of the Kingdom of the

Netherlands in pursuance of Article 48 (art. 48) of the convention;

Whereas in its judgment of 8 June 1976 the Court:

1. Holds, unanimously, that Article 5 (art. 5) was not applicable to

the light arrest of two applicants;

2. Holds, by twelve votes to one, that it was also not applicable to

the aggravated arrest of one applicant or to the interim aggravated

arrest of two other applicants;

3. Holds, by eleven votes to two, that the committal of two

applicants to a disciplinary unit did not violate Article 5

paragraph 1 (art. 5-1);

4. Holds, by nine votes to four, that the whole period of one

applicant's provisional strict arrest violated Article 5, paragraph 1

(art. 5-1), since no justification is to be found for it in any

sub-paragraph of this provision;

5. Holds, by ten votes to three, that apart from that, it violated

Article 5, paragraph 1 (art. 5-1), in so far as it exceeded the period

of twenty-four hours stipulated by Article 45 of the Netherlands

Military Discipline Act of 27 April 1903;

6. Holds, unanimously, that the committal of two applicants to a

disciplinary unit and one applicant's provisional arrest did not

violate Articles 5, paragraph 1, and 14 taken together (art. 14+5-1);

7. Holds, by twelve votes to one, that there has been no breach of

Article 5, paragraph 4 (art. 5-4), as regards the committal of two

applicants to a disciplinary unit;

8. Holds, by eleven votes to two, that Article 6 (art. 6) was not

applicable to one applicant on the ground of the words "criminal

charge";

9. Holds, unanimously, that it was also not applicable to this

applicant on the ground of the words "civil rights and obligations";

10. Holds, unanimously, that neither was it applicable to another

applicant;

11. Holds, by eleven votes to two, that there was a breach of

Article 6, paragraph 1 (art. 6-1), in the case of three applicants in

so far as hearings before the Supreme Military Court took place in

camera;

12. Holds, unanimously, that there was no breach of Article 6,

paragraph 2 (art. 6-2), in the case of two applicants;

13. Holds, unanimously, that there was no breach of Article 6,

paragraph 3 (b) (art. 6-3-b), in the case of three applicants;

14. Holds, by nine votes to four, that there was no breach of

Article 6, paragraph 3 (c) (art. 6-3-c), in the case of these three

applicants;

15. Holds, by nine votes to four, that there was no breach of

Article 6, paragraph 3 (d) (art. 6-3-d), in the case of one applicant;

16. Holds, by twelve votes to one, that there was no breach of

Article 6, paragraph 3 (d) (art. 6-3-d), in the case of two

applicants;

17. Holds, unanimously, that there was no breach of Articles 6 and 14

(art. 14+6) taken together in the case of three applicants;

18. Holds, unanimously, that there is no need to rule on the

complaint based by two applicants on the alleged violation of

Articles 6 and 18 (art. 18+6) taken together;

19. Holds, unanimously, that there was no breach of Article 10

(art. 10) taken alone or together with Articles 14 (art. 14+10), 17

(art. 17+10) or 18 (art. 18+10) in the case of two applicants;

20. Holds, unanimously, that there was no breach of Article 11

(art. 11) in the case of two applicants;

21. Holds, unanimously, that the question of the application of

Article 50 (art. 50) does not arise in the case of one applicant or

for those of the complaints of four other applicants which the Court

has not herein retained;

22. Holds, by twelve votes to one, that the question is not yet ready

for decision as regards the breaches found in the case of one

applicant and in the case of three other applicants;

Whereas in its judgment of 23 November 1976 relating to the

application of Article 50 (art. 50) of the convention, the Court holds

unanimously that the Kingdom of the Netherlands is to pay to one

applicant the sum of one hundred Dutch guilders; and that item 11 of

the operative provisions of its judgment of 8 June 1976 amounts for

three applicants to adequate satisfaction 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 Kingdom of the Netherlands

to inform it of the measures which it had taken in consequence of the

judgments, having regard to its obligation under Article 53

(art. 53) of the convention to abide by the judgments;

Whereas during the examination of this case by the Committee of

Ministers, the Government of the Kingdom of the Netherlands informed

the Committee of the measures taken in consequence of the judgments,

which information appears in the appendix to this resolution;

Having taken note of this information and having satisfied itself

that this government has awarded the just satisfaction provided for in

the judgments of the Court of 23 November 1976,

Declares that it has exercised its function under Article 54

(art. 54) of the convention in this case.

Appendix to Resolution (77) 10

Information provided by the Government of

the Kingdom of the Netherlands during the examination

of the case of "Engel and others" before the Committee of Ministers

In its judgment of 8 June 1976 in the case of Engel and others, the

European Court of Human Rights ruled that in the case of one

applicant, his provisional strict arrest constituted a violation of

Article 5, paragraph 1 (art. 5-1), of the convention, and that in the

case of three other applicants, there had been violation of Article 6,

paragraph 1 (art. 6-1), of the convention owing to the fact that the

Supreme Military Court had heard their case in closed session.

These cases were tried in the Netherlands during 1970 and 1971. As the

Court found in paragraphs 13, 24, 63 and 64 of its judgment, following

the amendment of 1 November 1974, Netherlands military disciplinary

law no longer makes provision for penalties which, according to the

criteria indicated by the Court itself, can be considered as

constituting a deprivation of liberty within the meaning of Article 5

(art. 5), or for other penalties such that the procedure under which

they are imposed can be regarded as criminal proceedings according to

the Court's interpretation of this term. Provisional arrest, strict

arrest and committal to a disciplinary unit were abolished by this

amendment.

Consequently, violations of Articles 5 and 6 (art. 5, art. 6) of the

convention of the kind found by the Court cannot occur under the

legislation currently in force. The Netherlands Government therefore

considers it unnecessary to take any other legislative measures.

In a letter to all the Ministers of the government, the Minister

of Justice has drawn his colleagues' attention to the terms of the

Court's judgment and has urged them to take account of it when

elaborating any new regulations on matters of discipline.

In accordance with the judgment of the Court of 23 November 1976

relating to the application of Article 50 (art. 50) of the European

Convention in the case in question, the sum of 100 Netherlands florins

was paid to the applicant's lawyer.

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