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You are here: BAILII >> Databases >> European Court of Human Rights >> DUINHOF AND DUIJF v. THE NETHERLANDS - 9626/81;9736/82 [1984] ECHR 6 (22 May 1984) URL: http://www.bailii.org/eu/cases/ECHR/1984/6.html Cite as: [1984] ECHR 6, (1991) 13 EHRR 478

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In the case of Duinhof and Duijf,

The European Court of Human Rights, sitting, in accordance with

Article 43 (art. 43) of the Convention for the Protection of Human

Rights and Fundamental Freedoms ("the Convention") and the relevant

provisions of the Rules of Court (*), as a Chamber composed of the

following judges:

_______________

(*) Note by the registry: The revised Rules of Court, which entered

into force on 1 January 1983, are applicable to the present case.

_______________

Mr. R. Ryssdal, President,

Mr. G. Wiarda,

Mr. J. Cremona,

Mrs. D. Bindschedler-Robert,

Mr. F. Gölcüklü,

Mr. L.-E. Pettiti,

Mr. B. Walsh,

and also Mr. M.-A. Eissen, Registrar, and Mr. H. Petzold, Deputy

Registrar,

Having deliberated in private on 24 November 1983 and on 4 May 1984,

Delivers the following judgment, which was adopted on the

last-mentioned date:

PROCEDURE

1. The case was referred to the Court by the European Commission

of Human Rights ("the Commission") on 13 October 1983 and on the

following day by the Government of the Kingdom of the Netherlands

("the Government"), within the period of three months laid down by

Articles 32 § 1 and 47 (art. 32-1, art. 47) of the Convention. The

case originated in two applications (nos. 9626/81 and 9736/82) against

that State lodged with the Commission in December 1981 and

February 1982 by Mr. Bernard Joost Duinhof and Mr. Robert Duijf, Dutch

nationals, under Article 25 (art. 25).

2. The Commission's request and the Government's application

referred to Articles 44 and 48 (art. 44, art. 48) and to the

declaration whereby the Kingdom of the Netherlands recognised the

compulsory jurisdiction of the Court (Article 46) (art. 46). The

purpose of both the request and the application was to obtain a

decision as to whether the facts of the case disclosed a breach by the

respondent State of its obligations under Article 5 § 3 (art. 5-3).

3. In response to the inquiry made in accordance with

Rule 33 § 3 (d) of the Rules of Court, the applicants stated that they

wished to participate in the proceedings pending before the Court and

designated the lawyer who would represent them (Rule 30).

4. The Vice-President of the Court, acting as President of the

Court, directed on 14 October 1983 that, in the interests of the

proper administration of justice, the instant case should be referred

to the single Chamber constituted on 24 March 1983 for the

consideration of the case of de Jong, Baljet and van den Brink and the

case of van der Sluijs, Zuiderveld and Klappe (Rule 21 § 6). This

Chamber included, as ex officio members, Mr. G. Wiarda, the elected

judge of Dutch nationality (Article 43 of the Convention) (art. 43),

and Mr. R. Ryssdal, the Vice-President of the Court (Rule 21 § 3 (b)),

the five other members chosen by lot being Mrs. D. Bindschedler-Robert,

Mr. F. Gölcüklü, Mr. L.-E. Pettiti, Mr. B. Walsh and Mr. R. Bernhardt

(Article 43 in fine of the Convention and Rule 21 § 4) (art. 43).

Mr. J. Cremona, substitute judge, subsequently replaced Mr. Bernhardt

who was prevented from taking further part in the consideration of the

case (Rules 22 § 1 and 24 § 1).

5. Mr. Ryssdal, who had assumed the office of President of the

Chamber (Rule 21 § 5), ascertained, through the Registrar, the views

of the Agent of the Government, the Delegate of the Commission and the

lawyer for the applicants as to the procedure to be followed. Having

particular regard to their concurring statements, he decided on

14 November that there was no need for written pleadings to be filed

(Rule 37 § 1). On the same occasion, he directed that the oral

proceedings should open on 22 November (Rule 38).

6. On 17 November, he granted the lawyer for the applicants leave

to use the Dutch language in the procedure (Rule 27 § 3).

7. The hearings were held in public on 22 November at the Human

Rights Building, Strasbourg. The previous day, the Chamber had held a

preparatory meeting.

There appeared before the Court:

- for the Government

Mrs. F.Y. van der Wal, Assistant Legal Adviser to the Ministry of

Foreign Affairs, Agent,

Mr. E.A. Droogleever Fortuijn, Landsadvocaat, Counsel,

Mr. W. Breukelaar, Official at the Ministry of Justice,

Mr. J.A. Wiarda, Official at the Ministry of Defence, Advisers;

- for the Commission

Mr. J. Frowein, Delegate;

- for the applicants

Mr. E. Hummels, advocaat, Counsel.

The Court heard addresses by Mr. Droogleever Fortuijn for the

Government, by Mr. Frowein for the Commission and by Mr. Hummels for

the applicants, as well as their replies to its questions.

8. On 24 November, the Commission supplied the Registrar with two

documents whose production the Court had requested.

On 12 and 20 December respectively, the Registrar received from the

applicants and from the Agent of the Government their replies to

certain of the questions and to the requests for documents put by the

Court at the hearings.

9. On 21 December, the President of the Chamber granted each

applicant legal aid with effect from 22 November, after having

received the written comments of the Agent of the Government and the

Delegate of the Commission in this connection (Rule 4 of the Addendum

to the Rules of Court).

AS TO THE FACTS

10. Mr. Duinhof and Mr. Duijf, who were born in 1962 and 1958

respectively, reside in the Netherlands. In 1981 and 1982, after

being forcibly drafted as conscript soldiers in the Netherlands Armed

Forces, they each refused, on account of their beliefs as

conscientious objectors, to obey specific orders deriving from their

obligation to perform military service. They were placed in detention

by the competent military officers for suspected offences against the

Military Penal Code (Wetboek van Militair Strafrecht). They were kept

in custody and referred for trial before a military court.

I. RELEVANT DOMESTIC LAW

A. Conscientious objection

11. Exemption may be obtained from compulsory military service on

the ground of conscientious objection, both before and after active

military service has begun. The procedure for requesting such

exemption from the Minister of Defence is laid down in the

Conscientious Objection to Military Service Act (Wet Gewetensbezwaren

Militaire Dienst) and a Ministerial Decree of 31 July 1970.

In the present case, neither applicant ever submitted a request to the

Minister of Defence to be granted the status of conscientious objector

(see paragraphs 21-28 below).

B. Military criminal procedure

12. Criminal procedure for the military land and air forces,

including in particular the matter of arrest and detention on remand,

is governed by the Army and Air Force Code of Procedure (Rechtspleging

bij de Land-en Luchtmacht - "the Military Code"), as last amended on

24 November 1978. Offences under military criminal law, which applies

equally to conscript servicemen such as the applicants and to

volunteers, are tried at first instance before a Military Court

(Krijgsraad). There may be an appeal to the Supreme Military Court

(Hoog Militair Gerechtshof) and ultimately a (cassation) appeal on

points of law to the Supreme Court (Hoge Raad) of the Netherlands.

1. Detention prior to referral for trial

13. Every officer and non-commissioned officer is empowered to

arrest military personnel of lower rank suspected of a serious offence

provided the circumstances require immediate deprivation of liberty

(Article 4 of the Military Code). The resultant detention is not to

exceed twenty-four hours (Article 5).

The commanding officer may order a suspected serviceman to be placed

or kept in custody on remand if (a) there is a serious risk of

absconding or (b) there are important reasons of public safety

requiring immediate deprivation of liberty or (c) this is necessary in

connection with the maintenance of military discipline among other

servicemen (Article 7, second paragraph). Such a detention order may

be made against a serviceman suspected of any offence set out in the

Military Penal Code or any offence in respect of which detention on

remand is permitted under the civilian Code of Criminal Procedure,

with the exception of those offences of which the Military Court takes

no cognisance (Article 7, fourth paragraph). An order may not be

issued if the suspect is unlikely to be penalised by unconditional

imprisonment or by any other measure restricting his freedom, or is

likely to be given a sentence of shorter duration than that of the

detention on remand (ibid.). Detention must be terminated once the

grounds for it cease to exist (Article 7, fifth paragraph). All cases

of detention exceeding four days shall be reported by the commanding

officer to the commanding general (Article 7, sixth paragraph).

Where detention has lasted fourteen days, the suspected serviceman may

petition the competent Military Court to fix a term (liable to

extension) within which the commanding general must either decide

whether the case is to be referred to a Military Court or else

terminate the detention. The Military Court has to rule on the

petition without delay, after hearing the authority empowered to refer

the case, the auditeur-militair (see paragraph 18 below) and the

suspected serviceman, who may have the assistance of an adviser

(Article 13).

14. If, after receiving the advice of the auditeur-militair and,

"if possible" ("zo mogelijk"), after the suspected serviceman has been

heard, the commanding general or a senior officer (hoofd officier)

designated by him to act on his behalf considers that the case should

be tried by the Military Court, the serviceman shall be referred for

trial before that Court (Article 11). On the other hand, the

commanding general or the designated officer may in appropriate

circumstances leave the case to be dealt with as a disciplinary matter

(Article 12). Regulation No. 27/7 of the Ministry of Defence

explained the effect of these provisions in the following terms

(translation from Dutch):

"In military penal procedure, as distinct from civilian procedure, the

decision to prosecute in a case is not taken separately by the

prosecuting authority, the auditeur-militair, but by a military

authority. That authority is the commanding general or the senior

officer he has appointed to act on his behalf, i.e. the referring

officer ... Thus, the auditeur-militair is merely an advisory body at

this stage, although the obtaining of his advice and the giving of

that advice by him are mandatory."

Any decision to refer for trial must be in writing and state whether

the suspected serviceman is to be released or kept in custody; the

grounds for detention set out in the second and fourth paragraphs of

Article 7 (see paragraph 13 above) apply pari passu (Article 14).

If, against the advice of the auditeur-militair, the commanding

general or designated senior officer chooses not to refer a suspected

serviceman for trial, the auditeur-militair may take the matter to the

Supreme Military Court (Article 15). No appeal is provided for in the

contrary case.

According to the Government, it has now become standard procedure to

apply the above provisions of the Military Code in the following

manner. Where detention on remand has been ordered, the suspected

serviceman is always heard by the auditeur-militair and any referral

to the Military Court takes place shortly thereafter, on average four

to five days after the arrest. In view of the requirements of

Article 14 of the Military Code the auditeur-militair's assessment of

the circumstances and his advice to the commanding general or

designated senior officer cover not only referral for trial but also

the question whether the conditions for detention on remand set out in

Article 7 are fulfilled. Thus, the standard written form used by the

auditeur-militair for the purposes of transmitting his advice to the

referring officer contains, inter alia, a paragraph as to whether the

suspect should "be released or be placed or kept in custody". Practice

has evolved to the point where the advice of the auditeur-militair is

invariably followed and generally regarded as binding.

2. Detention subsequent to referral for trial

15. Detention maintained or ordered in the decision referring the

serviceman for trial may not exceed fourteen days unless extended, by

terms of thirty days, by the Military Court at the request of the

auditeur-militair (Article 31). Every accused detained by virtue of

the referral decision must be heard by the officier-commissaris (see

paragraph 19 below) as speedily as possible and in any event within

four days of referral; in this connection, the accused may be assisted

by an adviser (Article 33, first paragraph). Before extending

detention, the Military Court must give the accused or his adviser the

opportunity to submit argument (Article 33, second paragraph).

As soon as the grounds for the detention cease to exist, release must

be ordered (Article 34, first paragraph). In the period between

referral and commencement of the trial, power to order release is

exercisable by the auditeur-militair, or by the Military Court at the

request of either the officier-commissaris or the detained serviceman

himself (Article 34, second paragraph). The Military Court, in

deciding on such requests, will hear the auditeur-militair and also

the detained serviceman or his adviser where the serviceman is

requesting release for the first time (Article 34, third paragraph).

16. If the accused is in custody at the first hearing, the

Military Court will decide, after being addressed by the

auditeur-militair, whether or not the nature and circumstances of the

case require his continued detention during the trial (Article 151).

The Court may direct the accused's release from detention on remand at

any later stage in the proceedings, either of its own motion or at the

request of the auditeur-militair or the accused himself (Article 156).

17. A serviceman in custody may request release or suspension of

his detention under Article 219 of the Military Code in proceedings

before the Supreme Military Court pending the decision on his appeal.

3. The auditeur-militair, the officier-commissaris and the Military

Court

18. The auditeur-militair has the function of prosecuting

authority before the Military Court (Article 126, first paragraph).

No serving member of the Armed Forces may appear as auditeur-militair

or substitute auditeur-militair (Article 126, third paragraph). The

auditeur-militair and his substitute may be replaced by an acting

auditeur-militair (plaatsvervanger - Article 126, second paragraph)

who may be a military officer, but such replacement was said by the

Government to occur only in exceptional circumstances.

Auditeurs-militair (including substitutes and acting ones) are

appointed, and dismissed, by the Crown on a joint proposal from the

Ministers of Justice and Defence; they must possess a law degree

(Article 126, fourth and sixth paragraphs). Under the terms of

Article 276, second paragraph, of the Military Code, they are obliged

to comply with instructions given to them in their official capacity

by the Minister of Justice. However, according to the Government,

this latter provision serves as no more than the legal authority for

issuing general guidelines on prosecution policy and, at least in

recent years, no Minister of Justice has acted or interfered in a

concrete case on the basis of Article 276.

The auditeur-militair is bound by his oath to act honestly and

impartially (Articles 368 and 370). He must attend the hearings of

the Military Court (Article 290) but he does not take part in the

Court's deliberations. He is under a general duty to assist the

Military Court, as well as the commanding general, with reports,

observations and advice in relation to military justice when required

to do so (Article 278). He is not under the supervision of the

Military Court or the Supreme Military Court in the discharge of his

duties, save that the Supreme Military Court has the power to

reprimand him should he fail strictly to observe statutory

time-limits (Article 297).

19. Attached to each Military Court is at least one

officier-commissaris who is in charge of the preliminary investigation

of cases (Article 29). An officier-commissaris is an officer or

former officer of the Armed Forces with the rank of captain or higher

and is appointed for a fixed term of at least one year by the

commanding general (ibid.). While he may at the same time be a member

of the Military Court, this is not usually the case. His task of

preliminary investigation involves gathering the facts and hearing

witnesses and the accused when necessary (Articles 29, 48 and 78). A

hearing by the officier-commissaris has the same force as a hearing by

the Military Court (Article 161). During his enquiries, he is under a

duty to apply himself equally to discovering the accused's innocence

and to obtaining proof or admission of guilt (Article 62). Like the

auditeur-militair, he is bound by his oath to act honestly and

impartially (Articles 368 and 370).

20. The Military Court sits with a president and two military

members (Article 120).

The latter are military officers appointed by the commanding general;

during their term of office, which is for one year at least, they may

not be dismissed; they must be at least twenty-five years of age and

be commissioned officers (Article 120). In practice, the rank most

commonly possessed is that of captain or major. There is no

requirement that the military members be legally qualified. According

to the Government, although they retain the status of military

officers, they are independent in their capacity as judges and no

order can be given to them by anyone. Like the president, the

military members are bound by oath to act honestly and impartially

(Articles 368 and 369).

The president is a civilian who must be the holder of a university law

degree; he is appointed for life by the Crown on the joint

recommendation of the Ministers of Justice and Defence (Article 121).

The deliberations of the Military Court are secret and its members are

not allowed to make public their personal opinions or those of their

colleagues (Article 135).

II. ARREST AND DETENTION OF THE APPLICANTS

A. Mr. Duinhof

21. Mr. Duinhof was arrested on 18 November 1981 on a charge of

having failed to register in due time as a conscript serviceman

(Article 150 of the Military Penal Code). He was transferred to

military barracks where he refused to submit to a medical examination.

He was then further accused of persistent insubordination (Article 114

of the Military Penal Code). On 19 November, the commanding officer

confirmed the detention, the ground relied on being the need to

maintain discipline amongst other servicemen (Article 7 of the

Military Code - see paragraph 13 above).

On 20 November, he was brought before the auditeur-militair.

On 23 November, in accordance with the advice of the

auditeur-militair, the designated senior officer referred the

applicant for trial before the Military Court, while deciding that he

should be kept in custody on the same ground as before (Articles 11,

14 and 7, second paragraph, of the Military Code - see paragraph 14

above).

22. On 24 November, the applicant was heard by the

officier-commissaris (Article 33, first paragraph, of the Military

Code - see paragraph 15 above).

On 26 November, the Military Court examined a request made by the

applicant on 24 November for release from custody (Article 34 of the

Military Code - see paragraph 15 above). At this hearing, the

applicant submitted, inter alia, that the requirements of

Article 5 § 3 (art. 5-3) of the Convention had not been complied with.

The Court held that the lapse of time between the applicant's arrest

and his appearance before the officier-commissaris, a judicial

officer, was "considerable" but nonetheless "acceptable", having

regard both to the fact that this period comprised a week-end and to

the geographical distance between the various intervening authorities.

Accordingly, considering that the grounds for detention were still

prevailing, the Court dismissed his request.

Subsequently, his detention was regularly prolonged by the Military

Court.

23. On 28 January 1982, Mr. Duinhof was convicted of

insubordination and sentenced by the Military Court to eighteen

months' imprisonment, the time spent in custody on remand to be

deducted therefrom.

24. He then appealed to the Supreme Military Court.

On 29 January, pending the examination of his appeal, the applicant

lodged with the Supreme Military Court a request for the detention to

be terminated having particular regard to Article 5 § 3 (art. 5-3) of

the Convention or, alternatively, for the detention to be suspended

(Article 219 of the Military Code - see paragraph 17 above).

On 17 March, the Supreme Military Court rejected the first part of his

request. However, on the same day, it acceded with immediate effect

to the second part subject to a number of conditions, inter alia, that

he accepted - which he did - to perform substitute civilian service

over a minimum period of fifteen months and to submit to a medical

examination. Criminal proceedings were likewise suspended by the

Court under the same conditions.

The Supreme Military Court subsequently sentenced Mr. Duinhof

to 101 days' imprisonment, the time spent in custody on remand,

which likewise totalled 101 days, to be deducted therefrom.

B. Mr. Duijf

25. Mr. Duijf was arrested on 15 January 1982 on a charge of

having failed to register in due time as a conscript serviceman

(Article 150 of the Military Penal Code). He was transferred to a

military house of detention where he refused to take receipt of a

military uniform and weapon. He was then further accused of

persistent insubordination (Article 114 of the Military Penal Code).

The commanding officer confirmed the detention, the grounds relied on

being a serious risk of his absconding and the need to maintain

discipline amongst other servicemen (Article 7 of the Military Code -

see paragraph 13 above).

On 18 January, in accordance with the verbal advice of the

auditeur-militair, the designated senior officer referred the

applicant for trial before the Military Court, while deciding that he

should be kept in custody on the same grounds as before (Articles 11,

14 and 7, second paragraph, of the Military Code - see paragraph 14

above).

26. On 19 January, the applicant was heard both by the

officier-commissaris (Article 33, first paragraph, of the Military

Code - see paragraph 15 above) and by the auditeur-militair.

On 27 January, the Military Court examined a request made by the

auditeur-militair on 22 January for the detention to be maintained

(Article 31 of the Military Code - see paragraph 15 above). At this

hearing, the applicant submitted, inter alia, that Article 5 § 3

(art. 5-3) of the Convention had not been complied with. The Court

rejected his various arguments and, considering that the grounds for

keeping him in custody were still prevailing, prolonged the detention

by a thirty-day term.

Subsequently, his detention was regularly prolonged by the Military

Court.

27. On 15 April, the applicant was convicted of insubordination

and sentenced by the Military Court to eighteen months' imprisonment,

the time spent in custody on remand to be deducted therefrom.

28. The applicant then appealed to the Supreme Military Court.

On 16 April and 2 June, the applicant lodged with the Supreme Military

Court requests to have his detention terminated, alleging, inter alia,

breach of Article 5 §§ 3 and 4 (art. 5-3, art. 5-4) of the Convention

(Article 219 of the Military Code - see paragraph 17 above).

The Supreme Military Court rejected these requests on 23 June.

On 7 September, the Supreme Military Court, substituting its own

judgment for that of the trial court, upheld both the conviction and

the sentence imposed.

PROCEEDINGS BEFORE THE COMMISSION

29. The application by Mr. Duinhof (no. 9626/81) was lodged with

the Commission on 8 December 1981 and that of Mr. Duijf (no. 9736/82)

on 16 February 1982. Both applicants claimed that, contrary to

Article 5 § 3 (art. 5-3) of the Convention, they had not been brought

promptly before a judge or other officer authorised by law to

exercise judicial power. In particular, they contended that

neither the auditeur-militair nor the officier-commissaris

could be regarded as such an "officer".

The Commission ordered the joinder of the two applications on

4 May 1982 and declared them admissible on 9 December 1982. In its

report adopted on 13 July 1983 (Article 31) (art. 31), the Commission

unanimously expressed the opinion that there had been a breach of

Article 5 § 3 (art. 5-3).

The full text of the Commission's opinion is reproduced as an annex to

the present judgment.

AS TO THE LAW

I. PRELIMINARY QUESTION

30. The Government, as they confirmed at the hearing before the

Court on 22 November 1983, raised no preliminary objections in the

instant case. They did however submit that the Commission was obliged

to inquire ex officio into exhaustion of domestic remedies and that,

consequently, the question should also be considered by the Court in

relation to Mr. Duinhof and Mr. Duijf.

Quite apart from considerations of estoppel or failure to comply with

Rule 47 of the Rules of Court, the Court rejects this argument (see

the Deweer judgment of 27 February 1980, Series A no. 35, p. 15, § 26

in fine; the Foti and Others judgment of 10 December 1982, Series A

no. 56, pp. 16 and 17, §§ 46 and 48; and the de Jong, Baljet and

van den Brink judgment of today's date, Series A no. 77, p. 18, § 36).

II. THE MERITS

A. Alleged violation of Article 5 § 3 (art. 5-3)

31. The applicants alleged breach of the first part of paragraph 3

of Article 5 (art. 5-3), which reads:

"Everyone arrested or detained in accordance with the provisions of

paragraph 1 (c) of this Article (art. 5-1-c) shall be brought promptly

before a judge or other officer authorised by law to exercise judicial

power ...".

32. The Court had the occasion in its Schiesser judgment of

4 December 1979 to interpret in detail the expression "officer

authorised by law to exercise judicial power" (Series A no. 34,

pp. 12-14, §§ 27-31). It suffices here to recall the salient

principles enunciated in that judgment. In particular, having

regard to the object and purpose of Article 5 § 3 (art. 5-3)

(as to which, see paragraph 36 below), it was held that the

"officer"/"magistrat" referred to - who may be either a judge

sitting in court or an official in the public prosecutor's

department (du siège ou du parquet - ibid., p. 12, § 28) -

"must ... offer guarantees befitting the 'judicial' power

conferred on him by law" (ibid., p. 13, § 30). The Court summed

up its conclusions as follows (ibid., § 31):

"... [T]he 'officer' is not identical with the 'judge' but must

nevertheless have some of the latter's attributes, that is to say he

must satisfy certain conditions each of which constitutes a guarantee

for the person arrested.

The first of such conditions is independence of the executive and of

the parties. ... This does not mean that the 'officer' may not be to

some extent subordinate to other judges or officers provided that they

themselves enjoy similar independence.

In addition, under Article 5 § 3 (art. 5-3), there is both a

procedural and a substantive requirement. The procedural requirement

places the 'officer' under the obligation of hearing himself the

individual brought before him ...; the substantive requirement imposes

on him the obligation of reviewing the circumstances militating for or

against detention, of deciding, by reference to legal criteria,

whether there are reasons to justify detention and of ordering release

if there are no such reasons ..."

As far as the last-mentioned substantive requirement is concerned, the

Court had already held in the earlier case of Ireland v. the United

Kingdom that an advisory committee on internment did not constitute an

authority complying with the provisions of Article 5 § 3 (art. 5-3)

since it did not have power to order release (judgment of

18 January 1978, Series A no. 25, p. 76, § 199).

1. Hearing of Mr. Duinhof by the auditeur-militair prior to referral

for trial

33. Mr. Duinhof contended that the auditeur-militair, the first

authority before whom he appeared following his arrest (see

paragraph 21 above), could not be regarded as a judicial "officer" for

the purposes of Article 5 § 3 (art. 5-3). The Government disputed

this. They further submitted that Mr. Duinhof had been brought

"promptly" before the auditeur-militair, that is after two days.

34. According to the literal terms of the relevant national law,

prior to referral for trial the auditeur-militair had no power to

order Mr. Duinhof's release: Article 11 of the Military Code conferred

on the auditeur-militair only an investigatory and advisory role which

was, moreoever, confined to the sole question of referral for trial

(see paragraph 14, first sub-paragraph, above). In the Government's

submission, however, this apparent limitation in the law has to be

read in the light of the actual practice followed whereby the advice

also extended to the issue of detention and was invariably followed by

the referring officer (see paragraph 14, final sub-paragraph, above).

This "standard procedure" meant, so it was argued, that the

auditeur-militair in fact decided since his advice as to whether to

detain or not was treated as a "binding recommendation" by the officer

who had the formal power of decision. In sum, the Government

maintained that "the substance should prevail over the form".

The Court notes the Government's declaration that this "standard

procedure" has been introduced in order to comply with the Convention

pending a total revision of the Military Code. Nonetheless, the Court,

like the Commission (see paragraph 83 of the report), is unable to

accept the Government's reasoning. Admittedly, in determining

Convention rights one must frequently look beyond the appearances and

the language used and concentrate on the realities of the situation

(see, for example, in relation to Article 5 § 1 (art. 5-1),

the Van Droogenbroeck judgment of 24 June 1982, Series A no. 50,

p. 20, § 38). However, formal, visible requirements stated in the

"law" are especially important for the identification of the judicial

authority empowered to decide on the liberty of the individual in view

of the confidence which that authority must inspire in the public in a

democratic society (see, mutatis mutandis, the Piersack judgment

of 1 October 1982, Series A no. 53, p. 14, § 30 (a)). There was no

official directive or even policy instruction to auditeurs-militair

and referring officers to interpret the Military Code in this way,

only a purely internal practice of no binding force that could at any

moment lawfully be departed from. That is not sufficient to

constitute authority given by "law" to exercise the requisite

"judicial power" contemplated by Article 5 § 3 (art. 5-3) (see the

final part of the passage from the Schiesser judgment cited above at

paragraph 32).

35. Accordingly, the procedure followed in Mr. Duinhof's case

before the auditeur-militair prior to referral for trial did not

provide the guarantees required by Article 5 § 3 (art. 5-3).

2. Referral of both applicants for trial before the Military Court

36. The applicants were referred for trial before the Military

Court five days and three days respectively after their arrest (see

paragraphs 21 and 25 above). In the applicants' submission, the

Military Court did not possess the necessary independence of a

judicial authority for the purposes of Article 5 § 3 (art. 5-3). The

Court need not decide this point in the present context since, in any

event, the fact that the detained person has access to a judicial

authority is not sufficient to constitute compliance with the opening

part of Article 5 § 3 (art. 5-3). This text is aimed at ensuring

prompt and automatic judicial control of police or administrative

detention ordered in accordance with the provisions of paragraph 1 (c)

(art. 5-1-c). The language of paragraph 3 (art. 5-3) ("shall be

brought promptly before"), read in the light of its object and

purpose, makes evident its inherent "procedural requirement": the

"judge" or judicial "officer" must actually hear the detained person

and take the appropriate decision (see the extract from the Schiesser

judgment quoted above at paragraph 32).

Accordingly, the referral of the applicants for trial did not in

itself assure them the guarantees provided for under Article 5 § 3

(art. 5-3).

3. Hearing of Mr. Duijf by the auditeur-militair subsequent to

referral for trial

37. Mr. Duijf was heard by the auditeur-militair four days after

his arrest and one day after his referral for trial (see paragraph 26

above). Without apparently formally issuing a decision not to

release, the auditeur-militair, three days after Mr. Duijf's

appearance before him, asked the Military Court to extend the

detention beyond the fourteen-day limit provided for under Article 31

of the Military Code (see paragraphs 15 and 26 above).

The Government submitted that the auditeur-militair, when he heard

Mr. Duijf at this stage, was vested with the full powers of a judicial

"officer" and decided in accordance with the requirements of

Article 5 § 3 (art. 5-3).

38. Whilst it is true that the "substantive requirement" stated in

the Schiesser judgment may have been satisfied by the

auditeur-militair's competence to direct release (see the extract from

that judgment quoted at paragraph 32 above), the question remains

whether the auditeur-militair enjoyed the necessary independence,

having regard to the particular purpose for which the "judicial power"

referred to in Article 5 § 3 (art. 5-3) is to be exercised.

It was contested between the Government and the applicants whether the

auditeur-militair could be regarded as independent of the military

authorities in view of the wording of Article 276 of the Military Code

(see paragraph 18 above). In the Court's opinion, however, even

accepting the Government's submissions on this, the auditeur-militair

could not, following the referral of Mr. Duijf for trial, fulfil the

very specific judicial function contemplated by Article 5 § 3

(art. 5-3) since he at the same time performed the function of

prosecuting authority before the Military Court (Article 126, first

paragraph - ibid.). The auditeur-militair was thus a committed party

to the criminal proceedings being conducted against the detained

serviceman on whose possible release he was empowered to decide. In

sum, the auditeur-militair could not be "independent of the parties"

(see the extract from the Schiesser judgment quoted above at

paragraph 32) precisely because he was one of the parties.

Consequently, the procedure followed before the auditeur-militair in

Mr. Duijf's case did not satisfy the requirements of Article 5 § 3

(art. 5-3).

4. Hearing of both applicants by the officier-commissaris

39. In the submission of the applicants, the officier-commissaris,

who was responsible for the preliminary investigation of their cases

and before whom they appeared subsequent to their referral for trial

(Articles 29 and 33 of the Military Code - see paragraphs 15, 19, 22

and 26 above), could not be regarded as an "officer authorised by law

to exercise judicial power".

The Government disputed this. They explained that, when hearing a

detained serviceman, the officier-commissaris, like the

auditeur-militair is under a duty to examine independently and

impartially the lawfulness of the detention. Thereafter, so the

argument continued, the officier-commissaris can in appropriate

instances be instrumental in securing the release of the detainee by

addressing a request to that effect to the Military Court under

Article 34 of the Military Code (see paragraph 15 above). The

Government further maintained that in the circumstances the applicants

had been brought "promptly" before him following their arrest, that is

after six days in the case of Mr. Duinhof and after four days in the

case of Mr. Duijf (see paragraphs 21-22 and 25-26 above).

40. Without underestimating the value of the safeguard provided by

the officier-commissaris in this respect, the Court cannot uphold the

Government's submissions. As was pointed out by the Commission (at

paragraph 90 of the report) and by the applicants, the

officier-commissaris is not authorised by law to exercise the

requisite "judicial power" referred to in Article 5 § 3 (art. 5-3),

notably the power to decide on the justification for the detention and

to order release if there is none (see the final part of the passage

from the Schiesser judgment cited above at paragraph 32). The

procedure before the officier-commissaris was thus lacking one of the

fundamental guarantees implicit in Article 5 § 3 (art. 5-3).

5. Hearing before the Military Court

41. It remains to be determined whether the subsequent procedure

followed before the Military Court satisfied the various conditions of

this provision.

The Military Court did not hold a hearing on the issue of detention

and give a decision thereon until eight days after Mr. Duinhof's

arrest and twelve days after Mr. Duijf's arrest (see paragraphs 21-22

and 25-26 above). Whilst the question of promptness must admittedly

be assessed in each case according to its special features (see,

mutatis mutandis, the Wemhoff judgment of 27 June 1968, Series A

no. 7, p. 24, § 10), intervals as long as these are far in excess of

the limits laid down by Article 5 § 3 (art. 5-3), even taking due

account of the exigencies of military life and military justice (see

the Engel and Others judgment of 8 June 1976, Series A no. 22, p. 23,

§ 54). The Court agrees with the Commission on this point (see

paragraphs 95 and 97 of the report), which, moreover, was not

contested by the Government.

42. In the light of the foregoing conclusion, the Court does not

consider it necessary to inquire into the applicants' allegation that

the Military Court lacked the requisite independence on account of its

composition, the two military members appointed by the commanding

general outnumbering the one civilian president appointed by the Crown

(see paragraph 20 above).

6. Conclusion

43. To sum up, each applicant was the victim of a violation of

Article 5 § 3 (art. 5-3).

B. Application of Article 50 (art. 50)

44. Article 50 (art. 50) of the Convention reads as follows:

"If the Court finds that a decision or a measure taken by a legal

authority or any other authority of a High Contracting Party is

completely or partially in conflict with the obligations arising from

the ... Convention, and if the internal law of the said Party allows

only partial reparation to be made for the consequences of this

decision or measure, the decision of the Court shall, if necessary,

afford just satisfaction to the injured party."

At the hearing before the Court on 22 November 1983, counsel for the

applicants stated, without giving any details, that his clients'

claims for just satisfaction were similar to those put forward in the

case of van der Sluijs, Zuiderveld and Klappe (see the judgment of

today's date in that case, Series A no. 78, § 50). The allegations

there were that prejudice had been sustained in various forms during

and because of the detention in question, including psychological and

emotional injury, denial of sufficient possibilities for cultural and

educational development, invasion of privacy and loss of employment

opportunities and social reputation. Counsel specified however that,

as in the other case, the question of financial reparation had never

been a priority for his clients and that they simply asked the Court

to award appropriate satisfaction.

The Government argued that any prejudice suffered by either

Mr. Duinhof or Mr. Duijf had been compensated by the deduction of the

custody on remand from the term of imprisonment (see paragraphs 24 and

27-28 above) and that this constituted sufficient satisfaction for any

violation of the Convention.

45. The sole violation of the Convention alleged and found in the

present case is of the first part of Article 5 § 3 (art. 5-3). It

cannot be said on the evidence that the applicants would probably have

been released from custody on remand had they received the benefit of

the guarantees contained in this provision (cf. the Artico judgment of

13 May 1980, Series A no. 37, p. 20, § 42). At the very least, each

applicant did however forfeit the opportunity of a "prompt" judicial

control of his detention. The applicants must have suffered, by

reason of the absence of the relevant guarantees, some non-material

prejudice not wholly compensated by the findings of violation or even

by the deduction of the period spent in custody on remand from the

sentence of imprisonment ultimately imposed (see, mutatis mutandis,

the Van Droogenbroeck judgment of 25 April 1983, Series A no. 63,

p. 7, § 13). Having regard to the modest nature of the claims made,

the Court awards each applicant a lump sum of 300 Dutch Guilders by

way of just satisfaction under Article 50 (art. 50).

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that there has been a violation of Article 5 § 3 (art. 5-3)

in respect of each applicant;

2. Holds that the respondent State is to pay to each applicant the sum

of three hundred (300) Dutch Guilders under Article 50 (art. 50).

Done in English and in French, at the Human Rights Building,

Strasbourg, this twenty-second day of May, one thousand nine hundred

and eighty-four.

Signed: Rolv RYSSDAL

President

Signed: Marc-André EISSEN

Registrar