SEPARATE OPINION OF JUDGE THÓR VILHJÁLMSSON

1. I feel unable to go along with the reasoning of the majority of the Court expressed in paragraph 62 of the judgment. There the majority finds that aggravated arrest under the 1903 Act is not a deprivation of liberty within the meaning of Article 5 (art. 5) of the Convention. In my opinion it is. This is both because of its nature and its legal character.

As is described in paragraph 19 of the judgment, servicemen undergoing aggravated arrest are not allowed the same freedom of movement as other servicemen. These restrictions deviate clearly from the usual conditions of life within the Netherlands armed forces. Thus the servicemen concerned have to remain during off-duty hours in a specially designated place, cannot go to the recreation facilities open to others in the same barracks and often sleep in special rooms.

The view that this treatment is tantamount to deprivation of liberty is strengthened by its purpose which obviously is punitive. It is also worth noting that we have here a treatment in respect of which the term arrest is used and this in itself indicates a deprivation of liberty.

What is stated above does not lead me to find a breach of Article 5 (art. 5) of the Convention as regards the aggravated arrest of Mr. de Wit (paragraph 41 of the judgment) and of Mr. Dona and Mr. Schul (paragraph 65 of the judgment). This conclusion is based on my interpretation of Article 5 para. 1 (b) (art. 5-1-b) of the Convention dealt with below. In the case of Mr. de Wit it is also based on the fact that he served aggravated arrest after a decision was rendered by the Supreme Military Court of the Netherlands .

2. Article 5 para. 1 (b) (art. 5-1-b) of the Convention permits "the lawful arrest or detention of a person ... in order to secure the fulfilment of any obligation prescribed by law". The majority of the Court, in agreement with the majority of the Commission, finds this provision not applicable in the present case (paragraph 69 of the judgment). I cannot agree with the majority on this point. Any country which has a military service organises it on the basis of well-established principles, which in the case of the Netherlands are specified in the laws and regulations mentioned in the judgment. These rules form a distinct entity and they impose upon servicemen certain specific obligations. It seems to me that, far from endangering respect for the rule of law, this body of rules falls under the above-cited provision of Article 5 para. 1 (b) (art. 5-1-b).

This conclusion, nevertheless, does not apply to the provisional detention of Mr. Engel in excess of the twenty-four hours permitted by Article 45 of the 1903 Act (paragraph 26 of the judgment). On this particular point I am in agreement with the majority of the Court (see paragraph 69).

3. In paragraph 91 of the judgment, the majority of the Court sets out its opinion in connection with sub-paragraphs (c) and (d) of Article 6 para. 3 (art. 6-3-c, art. 6-3-d) of the Convention. I do not share this opinion.

As to Article 6 para. 3 (c) (art. 6-3-c), a natural reading of the text seems to me to indicate that it is up to the accused to decide whether he defends himself in person or entrusts this task to a lawyer. This, moreover, is in line with the general principles of law reflected in Article 6 (art. 6). I fail to see how, in a given case, a court – not to speak of an administrative authority - can reasonably decide to what degree the accused is capable of conducting his own defence. I therefore find a breach of Article 6 para. 3 (c) (art. 6-3-c) in the case of Mr. de Wit, Mr. Dona and Mr. Schul .

As to Article 6 para. 3 (d) (art. 6-3-d) of the Convention, I agree with the majority of the Court when it states in paragraph 91 of the judgment that this provision does not require the examination of every witness that an accused person may wish to have called. I am also of the opinion, like the majority, that "equality of arms" is an important point when this provision is interpreted. Nevertheless, this provision entitles a person charged with a criminal offence to have witnesses on his behalf heard by the tribunal dealing with his case unless legally valid reasons are given for not doing so. This Court has, it is true, somewhat incomplete information on the facts concerning the alleged violations of Article 6 para. 3 (d) (art. 6-3-d). It is stated that in the case of Mr. de Wit the calling of two witnesses was prevented at every juncture (paragraphs 42 and 91 of the judgment). This has in my opinion not been refuted. Even if the complaints officer on 5 March 1971 heard witnesses (paragraph 41), this cannot count as a fulfilment of the obligation under Article 6 para. 3 (d) (art. 6-3-d) because he is not a court or a tribunal within the meaning of Article 6 para. 1 (art. 6-1). Accordingly I find a violation of Article 6 para. 3 (d) (art. 6-3-d) in the case of Mr. de Wit. On the other hand I agree with the majority of the Court in not finding a breach of this provision in the case of Mr. Dona and Mr. Schul as it has not been established that they made any request to the Supreme Military Court in this respect.