SEPARATE OPINION OF JUDGE BINDSCHEDLER-ROBERT

(Translation)

I am in agreement with the operative provisions of the judgment, except the two items concerning Mr. Engel ' s provisional arrest. These items record the finding that this arrest violated Article 5 para. 1 (art. 5-1) of the Convention, firstly, since no justification is to be found for it in any sub-paragraph of this provision (item 4), and secondly, because it exceeded the period of twenty-four hours stipulated by Netherlands law and insofar as it exceeded this period (item 5).

1. The difference of opinion over the first item reflects a fundamental disagreement on the applicability of Article 5 para. 1 (art. 5-1) in the matter.

The first part of the judgment ("as to the law") is based on the idea that Article 5 para. 1 (art. 5-1) is applicable de plano to disciplinary measures and penalties occasioning deprivation of liberty imposed in the context of military disciplinary law. It follows from this (i) that disciplinary penalties occasioning deprivation of liberty would comply with the Convention only if imposed by a court, in conformity with Article 5 para. 1 (a) (art. 5-1-a); and (ii) that, in conformity with sub-paragraph (c) (art. 5-1-c), there may be provisional arrest or detention only for the purpose of bringing the person arrested before the competent legal authority, and not before the hierarchical superior even if he is impowered to impose a disciplinary penalty. Whilst, on the facts of the case, the first of these consequences does not result in the finding of a violation of the Convention, the second leads the Court to conclude that there has been a violation of Article 5 para. 1 (art. 5-1) as regards Mr. Engel ' s provisional arrest.

To my great regret, I cannot share this point of view; I think that, despite the apparently exhaustive nature of Article 5 para. 1 (art. 5-1), the measures and penalties of military disciplinary law should not be put on the scales of Article 5 para. 1 (art. 5-1). Here are my reasons:

(1) Account must be taken of the nature of military service and the role of disciplinary law in instilling and maintaining discipline which is a sine qua non for the proper functioning of that special institution, the army. It is not enough to adopt, as does the Court, a narrow concept of deprivation of liberty; what must be borne in mind is the whole system of disciplinary law. Military discipline calls in particular for speedy and effective measures and penalties, adapted to each situation, and which, therefore, the hierarchical superior must be able to impose.

(2) The Convention itself recognises in its Article 4 para. 3 (b) (art. 4-3-b) the special characteristics of military service. This provision reflects a basic choice made by the Contracting States and establishes in a general way the compatibility with the Convention of military service. The derogations from and restrictions on the fundamental rights to which it may give rise - for example, the right to liberty of movement guaranteed by Article 2 of Protocol no. 4 (P4-2) - are thus not contrary to the Convention, even if there is no express reservation about them. Now the system of discipline peculiar to the army constitutes one of these derogations; Article 5 para. 1 (art. 5-1) does not concern military disciplinary law and its exhaustive nature relates only to situations in civil life. Judge Verdross is right to emphasise in his separate opinion that disciplinary penalties in the framework of military service are sui generis.

(3) The fact that disciplinary law does not fall under Article 5 para. 1 (art. 5-1) is the only explanation for the wording of this provision and its complete lack of adaptation to the situations which military disciplinary law concerns. These factors, as well as the place of Article 5 (art. 5) in the Convention and its logical link with Article 6 (art. 6), are an indication that the drafters of the Convention really had in mind situations belonging to criminal procedure.

(4) The above points are corroborated by the way in which the States party to the Convention have dealt with the question in their domestic law. Even today, in their military disciplinary law, the hierarchical superior is generally the authority empowered to take measures or impose penalties whether occasioning deprivation of liberty or not. Some States certainly provide for judicial review but this does not always have a suspensive effect; furthermore, Article 5 para. 1 (a) (art. 5-1-a) makes no distinction in its requirements between the different authorities. The governments do not seem to have envisaged the possibility that their military disciplinary law - as opposed to their military penal procedure - could be affected by the Convention. It appears difficult in these circumstances to countenance an interpretation that disregards so widespread a conception, namely, the "common denominator of the respective legislation of the various Contracting States", to adopt the Court ' s language in another context (paragraph 82 of the judgment).

I conclude from the above that Mr. Engel ' s provisional arrest, since it occurred in the framework of disciplinary procedure, was not subject to Article 5 para. 1 (a) (art. 5-1-a) and that, as a result, it has not violated this provision on the ground that Mr. Engel was arrested and detained for the purpose of being brought before his hierarchical superior and not before a legal authority.

2. That Article 5 para. 1 (art. 5-1) is inapplicable to disciplinary law does not mean that disciplinary measures and penalties escape supervision altogether. In point of fact, as is stated in the judgment, Article 6 (art. 6) gives the Convention institutions the possibility of correcting excessive extension of the scope of disciplinary law; furthermore there is ground for saying that the measures and penalties in disciplinary law that involve deprivation of liberty do not escape the requirement of lawfulness which underlies the whole of Article 5 (art. 5).

Mr. Engel ' s provisional arrest can certainly be assessed from this angle. However, although I admit that it was initially tainted with unlawfulness to the extent that it lasted more than twenty-four hours, I cannot agree with the item in the operative provisions of the judgment which records a violation of the Convention in this respect. The State which redresses injury caused contrary to international law expunges by that very act its international responsibility; to afford it this possibility is precisely the meaning of the rule on exhaustion of domestic remedies (cf. Guggenheim, Traité de droit international public, vol. II, p. 23). In the case before us, the State completely redressed Mr. Engel ' s injury when the authority hearing the appeal decided that the two days ' strict arrest to which he had been sentenced would be deemed to have been served during the provisional arrest. In these circumstances it is no longer appropriate for the operative provisions of the judgment to record a violation of the Convention. This approach is not contrary to the Court ' s case-law; each time it has held that the reckoning of detention on remand as part of a sentence did not prevent it from taking the unlawfulness of that detention into account, there had been a detention of long duration for which the deduction did not amount to complete reparation. Besides, the question has been pleaded before the Court in the context of affording just satisfaction (cf. for example, the Neumeister case, judgment of 7 May 1974, Series A no. 17, pp. 18-19).