Koster v. Netherlands



AS TO THE ADMISSIBILITY OF

Application No. 12843/87

by Jacobus Petrus KOSTER

against the Netherlands

The European Commission of Human Rights sitting in private on

6 September 1989, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 31 March 1987

by Jacobus Petrus KOSTER against the Netherlands and registered on

3 April 1987 under file No. 12843/87;

Having regard to:

- the report provided for in Rule 40 of the Rules of Procedure

of the Commission;

- the Commission's decision of 8 September 1988 to bring

the application to the notice of the respondent Government

and invite them to submit written observations on its

admissibility and merits;

- the observations submitted by the respondent Government on

16 November 1988 and the observations in reply submitted

by the applicant on 12 January 1989;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case as presented by the parties may be

summarised as follows.

The applicant is a Dutch citizen, born in 1966. At the time

of introduction of this application he was detained in the Remand

Prison (Huis van Bewaring) of Middelburg, the Netherlands. He resides

at present in Leiden, the Netherlands. The applicant is a student, but

at the time of introduction of this application he was performing

compulsory military service. He is represented before the Commission

by Mr. E. HUMMELS, a lawyer practising in Utrecht, the Netherlands.

On Wednesday 11 March 1987 the applicant, while performing

compulsory military service, refused a direct order from a superior to

take receipt of a weapon and a uniform. He persisted in his refusal,

despite being warned that refusing an order is a punishable offence.

At 3:45 p.m. that same day the applicant was provisionally

arrested (voorlopig arrest) and detained on remand. At 4:30 p.m.

this provisional detention was confirmed by the commanding officer

(Commandant). At 7:00 p.m. the applicant was questioned by the

military police (Koninklijke Marechaussee). On Friday 13 March 1987,

he was brought before a prosecuting officer (officier-commissaris) and

legal counsel was appointed to represent him.

Five days later, on Monday 16 March 1987, he was brought

before the Regional Court-Martial (Arrondissementskrijgsraad) of

Arnhem. The court-martial extended his detention on remand by thirty

days, for the lawful purpose of maintaining discipline among other

military personnel.

Before the court-martial, the applicant's counsel complained

that the applicant had been in detention for five days before being

brought before an organ authorised by law to exercise judicial power,

in violation of the requirement of "promptness" provided for in

Article 5 para. 3 of the Convention. Counsel also submitted that the

court-martial was not an independent and impartial tribunal, and

therefore was not authorised to decide on the applicant's detention.

The court-martial stated that Article 5 para. 3 of the

Convention did not specify any particular length of time, and that the

court-martial had been convened at the earliest possible moment in the

circumstances. These circumstances were that, at that time, the

members of the court-martial were engaged in a major, two-yearly

military exercise, and that there was an intervening weekend.

The court-martial went on to state that the European

Commission of Human Rights had determined in the cases of Sluijs,

Zuiderveld and Klappe (Comm. Report 13.10.82, Eur. Court. H.R., Series

A no. 78) that a court-martial was authorised to judge on detention on

remand.

COMPLAINTS

The applicant complains that after his arrest he was not

"promptly" brought before a judicial authority. He invokes Article 5

para. 3 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 31 March 1987 and registered

on 3 April 1987.

On 8 September 1988 the Commission examined the admissibility

of the application and decided, in accordance with Rule 42 para. 2 (b)

of the Rules of Procedure, to give notice of the application to the

respondent Government and to invite them to submit before 18 November

1988 their observations on the admissibility and merits of the

application.

The observations of the respondent Government were submitted

on 16 November 1988. An English translation was forwarded on 28

November 1988.

The applicant was invited to submit observations in reply

before 28 January 1989. The applicant's observations were submitted

on 12 January 1989.

THE LAW

The applicant has complained that after his arrest he was

detained for five days before being brought before the court-martial.

Before that time his detention had only been authorised by his

commanding officer and a prosecuting officer. He has invoked Article

5 para. 3 (Art. 5-3) of the Convention.

The respondent Government have submitted that the rules

governing military justice do not specify a maximum period of

detention before a suspect is brought before a judicial authority.

However, in pursuance of previous decisions by the European Court of

Human Rights, a ministerial directive of 19 December 1983 indicates

that provisional detention should be confirmed or prolonged by a

court-martial within 4 days of its inception. In the present case

there were exceptional circumstances which prevented this period from

being observed, namely that there was a major military exercise in

progress and the 4th day of detention was a Sunday. The Government

also point out that the court-martial was unusually convened on a

Monday for this case.

The applicant has replied that similar judicial bodies

can convene on weekends if necessary. Furthermore, arrangements could

have been made in advance that members of the court-martial be

available despite the military exercise, the dates of which were known

well in advance.

The Commission considers that the application raises important

questions of law and fact pertaining to the observance of Article 5

para. 3 (Art. 5-3) of the Convention, which can only be determined in an

examination of the merits. No grounds for inadmissibility having been

established, the application must be declared admissible.

For these reasons, the Commission

DECLARES THE APPLICATION ADMISSIBLE

without prejudging the merits of the case.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)