SEPARATE OPINION OF JUDGE CREMONA

I have agreed with the majority of my brother judges in the finding of the violations of the Convention indicated in the judgment. But having come to the conclusion, along with them, that certain punitive measures complained of in this case (strict arrest and committal to a disciplinary unit) were in fact deprivations of personal liberty also in the context of the special characteristics and exigencies of military life, I feel that certain other points become pertinent, and on these points, which I am briefly setting out hereunder, I find myself, with respect, in disagreement with the conclusions reached by the majority of my colleagues.

In the first place, having already excluded certain punitive measures (also described as arrests) from the purview of deprivation of liberty for the purposes of Article 5 para. 1 (art. 5-1) of the Convention solely on the accepted ground that "when interpreting and applying the rules of the Convention in the present case, the Court must bear in mind the particular characteristics of military life and its effects on the situation of individual members of the armed forces" (paragraph 54 of the judgment), then, in proceeding to identify as possible charges of a criminal nature (for the purposes of Article 6 para. 1 of the Convention) (art. 6-1) certain "disciplinary charges" which involve liability to punishments entailing unquestionable deprivation of liberty, I am unable to distinguish further, as the majority of my colleagues do (paragraph 82), particularly on the basis of the relative duration of such deprivation of liberty.

Thus I find that also in the case of Mr. Engel (and not only in that of Mr. de Wit, Mr. Dona and Mr. Schul , as stated in paragraph 88 of the judgment) the position was one of the determination of a criminal charge against him, and since the hearing in his case too, as in that of the others, took place in camera, there is also in respect of him a violation of Article 6 para. 1 (art. 6-1), irrespective of the short duration of the strict arrest to which he was liable. The question of the assessment of the risk to which he was in practice exposed on 7 April 1971 cannot in my view alter the existing legal situation.

In paragraph 63 it is accepted in the judgment that the provisional arrest inflicted on Mr. Engel in the form of strict arrest did have the character of deprivation of liberty and this, as therein stated, despite its short duration. While appreciating that what I am about to say is not quite the same thing though the basis is essentially common, I feel that when considering the true nature of a criminal charge, liability to a punishment entailing unquestionable deprivation of liberty should also be viewed irrespective of its duration. In such a case the nature of the punishment itself in fact overrides its duration. An established deprivation of personal liberty cannot, without injury to the spirit of the Convention, be considered as obliterated by the shortness of its duration, also in the process of determining, for the purposes of Article 6 para. 1 (art. 6-1) of the Convention, the true nature of a criminal charge. With particular reference to what is stated in the last sub-paragraph of paragraph 82 of the judgment, it is my belief that the detriment involved in a deprivation of personal liberty, once established as such, cannot (as is done there) properly be qualified by the quantitative concept "not appreciable" nor indeed judged by reference to time, except only for the purposes of the relative gravity.

Another point concerns Article 6 para. 3 (c) (art. 6-3-c) of the Convention, which, among certain minimum rights guaranteed to a person charged with a criminal offence, includes the right "to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require". I do not propose to controvert the fact that this right as a whole and as formulated in this provision is not in every respect an absolute right. But then I do believe that this important right of the accused cannot be subjected to the limitation that the legal assistance (in this case a fellow-conscript with legal qualifications chosen by the applicants themselves) be confined exclusively to any points of law arising in the case.

It will be recalled in this connection that at the time of the measures complained of, the Supreme Military Court in practice granted legal assistance in certain cases where it was expected that the person concerned would not be able himself to cope with the special legal problems raised in his appeal and such legal assistance was confined to the legal aspects of the case. This limitation is in fact the subject of complaint here and I find that its application in the case of the applicants mentioned in paragraph 91 of the judgment is in violation of Article 6 para. 3 (c) (art. 6-3-c) of the Convention. The legal assistance mentioned in this provision refers to the case as a whole, that is to say, in all its aspects, both legal and factual. Indeed it is only too clear that every case is made up of both law and fact, that these are both important for the defence (which is what this provision is intended to protect) and that at times it may also not be too easy to separate one from the other.

In particular, it is, with respect, hardly reasonable to seek to justify the situation complained of, as the majority of my colleagues do in the third sub-paragraph of paragraph 91 of the judgment, on the ground that "the applicants were certainly not incapable of personally providing explanations on the very simple facts of the charges levelled against them". Indeed, quite apart from the questionable simplicity of the facts of the charges or at any rate some of them, the essential point here is not the matter of providing explanations, but the matter of adequately defending oneself against a criminal charge. The right guaranteed in Article 6 para. 3 (c) (art. 6-3-c) is a vital right of the accused and indeed of the defence in general and is designed to ensure that proceedings against a person criminally charged will not be conducted in such a way that his defence will be impaired or not adequately put. Nor is the right to legal assistance of one ' s own choosing, as enshrined in this provision, conditional on the person charged being incapable of defending himself (or, as stated in the judgment, providing explanations) in person. Furthermore, here the question clearly was not that the applicants were unable to defend themselves in person, but that they showed themselves unwilling to do so, preferring, as entitled to do under the Convention, to be defended (in respect of not only the legal but also the factual aspects of the charges against them) by a lawyer of their own choosing. That lawyer was in fact accepted, but then his services in the defence of the applicants were, as already stated, in my view unjustifiably restricted.

Another point concerns the failure to call two witnesses for the defence of Mr. de Wit (named by him), a failure of which he also complained in this case, invoking Article 6 para. 3 (d) (art. 6-3-d) of the Convention, which guarantees to a person charged with a criminal offence, among certain other minimum rights, the right "to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him". Again, there is no gainsaying the fact that this is not an absolute right and is limited, for instance and to mention but one factor, by the concept of relevance. Now when Mr. van der Schans assisting the delegates of the Commission (he had previously also represented the applicants before the Commission) put it to this Court that the witnesses for the defence who were not ordered to appear were witnesses who could have helped the case for the defence (they were described as "eye-witnesses"), the Government representatives countered by saying that in view of the fact that Mr. de Wit had made a declaration acknowledging certain facts, "there was no need for further witnesses" (verbatim report of the public hearing of 29 October 1975). But, without here wishing to interfere unduly with the decisions of national jurisdictions and apart from the fact that Mr. de Wit ' s declaration covered only part of the charge against him (in it he certainly denied certain parts of the charge, as may be seen from the relevant decision), what was stated by the Government representatives seems to indicate that the non-admission of Mr. de Wit ' s two witnesses out of the three proposed by him (as against the admission of five witnesses against him) was not grounded on such justifiable considerations as, for instance, relevance, but rather on their becoming unnecessary because of certain of the accused ' s statements, which in my view, at least on the basis of what is before me, is not justifiable.

JOINT SEPARATE OPINION OF JUDGES O ' DONOGHUE AND PEDERSEN

We are in agreement with the view that no breach has been found in any of the cases before the Court under Articles 10, 11, 14, 17 and 18 (art. 10, art. 11, art. 14, art. 17, art. 18) of the Convention. It is clear from the judgment that the difficulties arise from the consideration of the applicability of two Articles 5 and 6 (art. 5, art. 6). These Articles (art. 5, art. 6) can be said to have a certain inter-relationship because if Article 5 (art. 5) is applicable in the sense that there has been a deprivation of liberty involving a criminal charge the full impact of the obligation to comply with Article 6 (art. 6) will follow.

We feel unable to adopt the conclusion of the majority of the Court that the clear obligation of members of the armed forces to observe the code of discipline applicable to such forces is an unspecified obligation and therefore outside the reach of Article 5 para. 1 (b) (art. 5-1-b). There is a clear distinction in our opinion between the obligation of citizens at large to obey the law and the special position of military personnel to obey the disciplinary code which is a vital and integral constituent of the force of which they are members.

Apart from the considerations set out in the separate dissenting opinion of MM. Fawcett and othe rs [pp. 74-75 of the Report] [1] , with which conclusion we fully agree, there is an elementary factor which should be looked at in the structure and character of a military establishment in any country which is party to the Convention. This factor is the disciplinary code, the maintenance of which is vital to the very continued existence of an armed force, and quite different from any other body or association which purports to exercise a measure of discipline over its members.

The special importance of discipline in an armed force and the recognition of this by its members, lead us to take the view that you have here a clear case of a specific and concrete obligation prescribed by law and imposed on the members. In the light of these considerations we are satisfied that in none of the cases before the Court has there been a breach of Article 5 para. 1 (art. 5-1) of the Convention because of the exception stated in Article 5 para. 1 (b) (art. 5-1-b).

What is described as the provisional detention of Mr. Engel commenced with his arrest on 20 March 1971 . The Military Discipline Act of 1903 sanctioned such an arrest and detention but Article 45 of that Act restricted the period of provisional detention to twenty-four hours. In the events which took place in Mr. Engel ' s case there was an excessive detention of twenty-two hours and this excess was unlawful. But in the case of Mr. Engel we consider that the whole period during March to June 1971 be taken into account. The Ministerial decision to suspend the execution of his punishments to allow him to take his examination and the reduction of the several penalties in April must be balanced against the definite but technically excessive detention of twenty-two hours. In all these circumstances we would not hold that the Netherlands Government committed a breach of Article 5 para. 1 (art. 5-1) of the Convention.

As we regard the breaches of the applicants as disciplinary offences, concerned only with the applicants ' conduct as servicemen and with their military obligations (cf. para. 122 of the Commission ' s report), it follows that the question of "the determination of his civil rights and obligations" as stated in Article 6 para. 1 (art. 6-1) of the Convention does not arise for any of the applicants.

For the same reasons we are of the opinion that there was no contravention of Article 6 (art. 6) in dealing with the cases, and in not treating any of them as in essence criminal charges requiring the application of the process contained in that Article (art. 6).

It is to be recognised that difficulty may be experienced by States in dealing with cases which are a breach of discipline and at the same time an offence under the criminal law. It seems to us that a test should be whether the complaint is predominantly a disciplinary breach or a criminal offence. If the latter, the provisions of Article 6 (art. 6) must be observed. The nature of the complaint and the punishment prescribed under the disciplinary code and under the criminal law would be helpful pointers as to the course to be followed in order to comply with the Convention. Any attempt to dilute the procedure in the case of a grave crime by treating it as a disciplinary infraction would in our opinion be such a serious abuse, and indeed quite powerless under the Convention to exclude the application of Article 6 (art. 6) and would oblige full compliance with the requirements of that Article (art. 6).

We have derived much assistance from the separate opinion of Mr. Welter and in particular we agree with his view expressed in paragraph 9 of the opinion and his reasons given why Article 6 (art. 6) was not applicable to any of the five applicants.

It follows from the foregoing that no questions arise under Article 50 (art. 50).