SEPARATE OPINION OF JUDGE VERDROSS

(Translation)

I have voted for the operative provisions of the judgment as they are in line with the Court ' s established case-law. However, I cannot, to my great regret, accept the proposition underlying the judgment, namely, that Article 5 (art. 5) of the Convention is violated by any detention imposed by a competent military authority whose decision is not subject to a judicial remedy having a suspensive effect.

Here are my reasons. If one compares disciplinary detention in a cell in the barracks with incarceration of a civilian or a serviceman in a prison (paragraph 1 (a) of Article 5) (art. 5-1-a), one is bound to see that there is a fundamental difference between the two. In the second case, the convicted person is completely cut off from his ordinary environment and occupation since he is removed from his home. On the other hand, the soldier detained for disciplinary reasons stays in the barracks and may, from one moment to the next, be ordered to carry out one of his military duties; he thus remains, even whilst so detained, potentially within the confines of military service. It seems to me from this that such detention does not in principle amount to a deprivation of liberty within the meaning of Article 5 para. 1 (art. 5-1). This does not mean that all disciplinary detention imposed by the competent military authority escapes the Court ' s supervision. It may contravene the Convention if it violates Article 3 (art. 3) or if its duration, or its severity, exceeds the norm generally admitted by the member States of the Council of Europe in the matter of disciplinary sanctions; I take the view that, in the final analysis, the nature of a punishment depends on this yardstick which can, of course, vary with the requirements of international military life.

SEPARATE OPINION OF JUDGE ZEKIA

I have respectfully subscribed to the main part of the judgment dealing with views and conclusions reached and criteria formulated for demarcation of the line where deprivation of liberty in the case of a conscript or an army serviceman occurs or does not occur within the ambit of Article 5 para. 1 (art. 5-1) of the Convention. Admittedly a certain amount of restriction on the right to liberty of a conscript or soldier might be imposed without infringement of Article 5 (art. 5) whereas such restriction cannot lawfully be imposed in the case of a civilian. Full reasons having been given in the judgment I need not repeat them.

I felt, however, unable to associate myself with the line of interpretation taken in determining the scope of application to the present case of certain Articles of the Convention, namely, Articles 5 para. 1 (a), 6 para. 1, 6 para. 3 (c) and (d) (art. 5-1-a, art. 6-1, art. 6-3-c, art. 6-3-d). In my view, once, in the light of the criteria enunciated by this Court, a conscript or soldier is charged with an offence which entails deprivation of his liberty such as committal to a disciplinary unit, and proceedings are directed to that end, such conscript or soldier is fully entitled to avail himself of the provisions of the Articles under consideration. For all intents and purposes the proceedings levelled against him are criminal in character and as far as court proceedings are concerned there need not be any difference between him and a civilian. I am not suggesting that such proceedings should be referred to civil courts. On the contrary, I consider it very appropriate that military courts composed of one or more judges, assisted by assessors or lawyers if needed, might take cognisance of cases where army servicemen are to be tried.

Mr. de Wit, Mr. Dona and Mr. Schul were all of them serving as privates in the Netherlands Army. The first was charged with driving a jeep in an irresponsible manner over uneven ground at a high speed. His company commander committed him to a disciplinary unit for three months. He complained to the complaints officer who heard the applicant and one out of three witnesses whom he wanted to be heard. He had the assistance of a lawyer who could assist him only on legal points. He lodged an appeal with the Supreme Military Court which, after hearing the appellant and his legal adviser and obtaining the opinion of the State Advocate, reduced the punishment to twelve days ' aggravated arrest to be executed thereafter. The date of his original sentence was 22 February 1971 and the Supreme Military Court gave its decision on 28 April 1971 .

On 8 October 1971 Mr. Dona and Mr. Schul, as editors of a journal called "Alarm", were sentenced by their superior commanding officer to committal to a disciplinary unit for a period of three and four months respectively, for publications undermining military authority in the Army. Both complained to the complaints officer who confirmed the sentence. Then they appealed to the Supreme Military Court . On 17 November 1971 their case was heard. Both were assisted on the legal aspects of the case by a lawyer. Sentences were confirmed. Mr. Schul ' s sentence was reduced to three months. Both Mr. Dona and Mr. Schul, pending their appeal before the Supreme Military Court , were placed under aggravated arrest from 8 to 19 October and remained under interim arrest as from the latter date to 27 October. They were then released until their case came up for hearing before the Supreme Military Court .

It is evident from the statement of facts made in the judgment and from the short reference I have given to certain facts that the superior commanding officer assumed the status of a judge who constituted a court of first instance and after hearing the case convicted the applicants and sentenced them for committal to a disciplinary unit. Likewise, the complaints officer assumed the status of a revisional court in dealing with complaints made by persons convicted and sentenced by a lower court, here by the superior commanding officer. The decision of the complaints officer is also subject to appeal to the Supreme Military Court which is empowered to confirm or reverse conviction and sentence or to alter them. The Supreme Military Court exercises an appellate jurisdiction over the decisions of the commanding and complaints officers. The conviction and sentence do not emanate from this Court. The sentence for committal to a disciplinary unit originated in the decision of the superior commanding officer who is neither a judge nor entitled to constitute a court. The proceedings before him are conducted partly in a quasi-judicial manner and not in full compliance with Articles 6 para. 1 and 6 para. 3 (c) and (d) (art. 6-1, art. 6-3-c, art. 6-3-d) of the Convention. The same considerations more or less apply to the status of the complaints officer. The Supreme Military Court is correctly denominated as a court although the proceedings before the court are conducted in camera in contravention of Article 6 para. 1 (art. 6-1). This court is not supposed to take the place of a trial court but rather to correct decisions already taken and convictions and sentences already passed. Therefore I am of the opinion that the requirements of Article 5 para. 1 (a) (art. 5-1-a) have not been met. It is a great advantage to persons facing charges to have a hearing, first before a trial court which affords equality of arms and observes the rules of fair trial. In case of conviction and receiving sentence, again it is a further advantage for a convicted man to have the chance to assert his innocence before a higher court. Usually a court of appeal considers itself as bound by the findings of fact of the lower court unless there is strong reason to upset such findings. The significance in the administration of justice of a trial court of first instance cannot be regarded as over-emphasised. On the other hand if I am right in my way of thinking that, once a soldier is sought to be deprived of his right to liberty to the extent inadmissible and impermissible with regard to his status as a soldier or conscript, he is entitled to be treated as a civilian, then the detention of the applicants either in the form of aggravated arrest or interim arrest before their cases were heard by the Supreme Military Court amounted to a detention before a conviction by a competent court had been passed. Furthermore, the detention of the applicants for the period indicated above before the Supreme Military Court heard the case was made on the strength of a conviction and sentence passed by a superior commanding officer who was not a competent court and such detention was not linked with the exigencies of service.

I have little to say in respect of infractions of Articles 6 para. 1 and 6 para. 3 (c) and (d) (art. 6-1, art. 6-3-c, art. 6-3-d). Violation of Article 6 para. 1 (art. 6-1) is found by the Court. I have nothing to add. Coming to Article 6 para. 3 (c) (art. 6-3-c), it appears from the record that the applicants were assisted only on the legal aspects of their case and very probably because they had recourse to the Articles of the Convention. This, to my mind, does not satisfy the provisions of the aforesaid sub-paragraph. As to Article 6 para. 3 (d) (art. 6-3-d), it appears again that the applicants could not obtain the attendance and examination of some witnesses they wanted to call for their defence. The omission or refusal to call such witnesses for the defence does not appear to be based either on the irrelevancy of their evidence or on some other good reason. The applicants were not fully afforded the chance to examine witnesses against them either directly or through their counsel or through the court as envisaged in sub-paragraph 3 (d) of Article 6 (art. 6-3-d) of the Convention.