SEPARATE OPINION OF JUDGE EVRIGENIS

(Translation)

1. To my great regret I have not been able to concur with the majority of the Court on items no. 3, 14, 15 and 16 of the operative provisions of the judgment. These are the points which caused me to disagree:

(a) The majority of the Court thought that the committal of Mr. Dona and Mr. Schul to a disciplinary unit, by virtue of a decision of the Supreme Military Court of the Netherlands , met with the requirements of Article 5 para. 1 (a) (art. 5-1-a) of the Convention. Their sentence to a punishment involving deprivation of liberty emanated, according to the majority of my colleagues, from a "court" within the meaning borne by this term in Article 5 para. 1 (a) (art. 5-1-a). The Military Court, to adopt the terminology used in our Court ' s case-law, was a court from the organisational point of view; yet it seems on the other hand difficult to regard the procedure prescribed by law and in fact followed before it in the present cases as being in conformity with the conditions that should be satisfied by a judicial body corresponding to the notion of a court, within the meaning of Article 5 para. 1 (a) (art. 5-1-a). Two aspects of this procedure appear to me not to fulfil these conditions, namely, the freedom of action allowed to the accused ' s lawyer on the one hand and the taking of evidence on the other.

On the first aspect, the facts noted by the Court (judgment, paras. 32, 48, 91) reveal an important restriction on the defence lawyer ' s freedom of action before the Military Court when it hears a disciplinary case like those now before us. The lawyer may not, in fact, take part in the proceedings except to deal with legal problems and, what is more, only with any specific legal problems that might be presented by his client ' s appeal, such as, for example, the questions that would be raised by the entry into play of the European Convention on Human Rights. Furthermore, there are good reasons for thinking that the lawyer is not allowed to plead during the hearing (cf. the reference to the report dated 23 December 1970 of the acting Registrar of the Netherlands Supreme Military Court, decision on admissibility, repo rt of the Commission, p. 99) [2] . Taking these restrictions into account, it seems difficult to reconcile the procedure in question with the notion of a court within the meaning of Article 5 para. 1 (a) (art. 5-1-a); this, let us not forget, is a court which imposes sanctions involving deprivation of liberty (cf. De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, pp. 41-42, paras. 78-79, and (b) below).

The same points also apply to the second procedural aspect mentioned above, namely, the procedure prescribed by law and followed in practice for taking evidence before the Military Court when it sits as a disciplinary tribunal. According to the facts noted by the Court and bearing in mind the provisions of Netherlands law applicable in this case (cf. paras. 31 and 91 of the judgment), the attendance and hearing of defence witnesses apparently cannot take place in conditions ensuring the guarantees for the defence which I consider that a trial must provide if it involves the imposition of a punishment occasioning deprivation of liberty and if it is to be fair. For these reasons I have had to conclude that there has been a violation of Article 5 para. 1 (art. 5-1) in the case of Mr. Dona and Mr. Schul .

Having said this, I think that, once the Court had held that the charge against these two applicants was "criminal" (Article 6, judgment paras. 80 et seq., in particular para. 85 in fine) (art. 6), it should have refrained from examining whether the Military Court corresponded to the notion of a court within the meaning of Article 5 para. 1 (a) (art. 5-1-a). Whilst the expression "court" is, in principle, an autonomous concept in each of the above-mentioned provisions, this nevertheless does not alter the fact that the court mentioned in Article 5 para. 1 (a) (art. 5-1-a) must meet the requirements of Article 6 (art. 6) when, as in the present case, the penalty occasioning deprivation of liberty which it imposes is finally deemed to be the outcome of a criminal charge and hence to fall within Article 6 (art. 6). It is permissible, in appropriate cases, for the court mentioned in Article 5 para. 1 (a) (art. 5-1-a) not to fulfil all the conditions stipulated by Article 6 (art. 6) for a criminal court. The converse seems both logically and legally difficult. If a penalty occasioning deprivation of liberty was inflicted by a court that had to meet the conditions of Article 6 (art. 6), there is no point in asking the further question whether that court complied with the notion of a court within the meaning of Article 5 para. 1 (a) (art. 5-1-a).

(b) The same reasons have led me to believe that I must dissent from the opinion of the majority of the Court on items 14, 15 and 16 of the operative provisions of the judgment. I will thus do no more than refer to the remarks set out under 1 (a) above.

The fact remains that I think that the examination of the cases of committal to a disciplinary unit in the light of the notion of "criminal charge" in Article 6 (art. 6) calls for some observations of a more general nature. I take the liberty of putting them forward as I wish to demonstrate that on these points my disagreement with the majority is more pronounced.

When imposing the penalty of committal to a disciplinary unit (case of Mr. Dona and Mr. Schul ) or when reviewing such a penalty imposed by a non-judicial authority (case of Mr. de Wit), the Military Court was acting under Netherlands law as a disciplinary tribunal. If and to the extent that the Military Court was not dealing with conduct that could be sanctioned by penalties occasioning deprivation of liberty, its procedure could not in principle be considered contrary to the Convention. However, our Court thought, and rightly moreover, that the above-mentioned cases not only involved punishments occasioning deprivation of liberty, but also were covered by the notion of "criminal charge" within the meaning of Article 6 (art. 6) of the Convention. It thus had to investigate whether the Military Court afforded the guarantees that this provision requires of a criminal court. The majority considered that in the present case those guarantees were present, except the requirement of Article 6 para. 1 (art. 6-1) that the hearings be in public. Now the picture of the criminal court presented by the opinion of the majority seems to me hardly reconcilable with the minimal requirements of Article 6 (art. 6) for the ideal criminal court. Indeed I find it very hard to admit that a criminal court, irrespective of its level or jurisdiction, can, without contravening the provisions of Article 6 (art. 6), operate with a defence lawyer subject to important restrictions on the freedom of action traditionally allowed in the criminal procedure of the democratic countries in Europe and with rules of taking evidence little favourable to the accused. Of course, one cannot attribute these deficiencies to the Military Court which, it must be remembered, was acting under Netherlands law in the present cases as a disciplinary tribunal and did not therefore normally have to enquire whether it was complying with Article 6 (art. 6) of the Convention. It is our judgment which, by drawing the borderline beyond which the disciplinary becomes the criminal, requires retrospectively, by virtue of the Convention, that a disciplinary tribunal should have afforded the guarantees of a criminal court. Now I fear that the majority opinion, to the extent that it restricts these guarantees, may take the interpretation of Article 6 (art. 6), and especially the notion of a criminal court, on a path which, may I say, would not be free of risks. I would also like to point out in the same context that the classification under the Convention of a question as criminal, whether or not this corresponds to the conceptions of the relevant national law, must bring into play the guarantees of Article 7 (art. 7) of the Convention as well.

(c) In finding a violation of Article 5 para. 1 (art. 5-1) for the reasons given in 1 (a) above, I should logically conclude that there was a violation of Article 5 para. 4 (art. 5-4) in the case of Mr. Dona and Mr. Schul (item no. 7 of the operative provisions of the judgment). If the Supreme Military Court , which, according to the judgment, performs cumulatively the functions both of the court mentioned in Article 5 para. 1 (a) (art. 5-1-a) and of the court mentioned in Article 5 para. 4 (art. 5-4), did not comply with the former paragraph ' s notion of a court, likewise it would also not comply in principle with the latter paragraph ' s notion of a court. I have, however, agreed with the majority on this point, taking into account that under Netherlands law there is a civil court with general jurisdiction before which the legality of any deprivation of liberty may be challenged by summary application (Article 289 of the Civil Procedure Code and Sections 2 and 53 of the Judicature Act).

2. My vote on item 6 of the operative provisions of the judgment was to the effect that there was no violation, in the cases there mentioned, of Articles 5 para. 1 and 14 (art. 14+5-1 taken together. If the question had been put, I would for the same reasons (judgment, paras. 72 et seq.) have voted the same way as regards the complaints before the Court which were not considered to concern deprivations of liberty. The Court, however, thought it was able not to retain these cases for the reasons set out in paragraph 71 of the judgment. I cannot share this view. According to the Court ' s case-law (case relating to certain aspects of the laws on the use of languages in education in Belgium, judgment of 23 July 1968, Series A no. 6, pp. 33-34, para. 9; National Union of Belgian Police Case, judgment of 27 October 1975, Series A no. 19, p. 19, para. 44), a "measure which is in conformity with the requirements of the Article enshrining the right or freedom in question may however infringe Article 14 (art. 14) for the reason that it is of a discriminatory nature". Article 14 (art. 14) obliges States to secure "without discrimination" the enjoyment of th e rights and freedoms set forth in the Convention. The Convention thus prohibits any discrimination appearing in the context of the enjoyment of a right which it guarantees, whether such discrimination takes the positive form of measures enhancing the enjoyment of that right, or the negative form of limitations, legitimate or otherwise, on that right. I can hardly conceive how one could, a fortiori, make a distinction under Article 14 (art. 14), as interpreted by the Court, between measures involving an unlawful limitation on the right in question and measures tolerated by the Convention. Discriminatory treatment by measures in either of these two categories may lead to a discrimination in the enjoyment of rights that must be subject to supervision under Article 14 (art. 14) of the Convention. The Court should therefore have examined from the point of view of their conformity with Article 14 (art. 14) as well, those of the penalties brought to its attention which it finally considered not to involve deprivation of liberty.

[1] Note by the Registry: Page-numbering of the stencilled version

[2] Note by the Registry: Page-numbering of the stencilled version.