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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> KOSTER v. THE NETHERLANDS - 12843/87 [1991] ECHR 53 (28 November 1991)
URL: http://www.bailii.org/eu/cases/ECHR/1991/53.html
Cite as: (1992) 14 EHRR 396, 14 EHRR 396, [1991] ECHR 53
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In the case of Koster v. the Netherlands*,
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:
Mr J. Cremona, President,
Mr Thór Vilhjálmsson,
Mrs D. Bindschedler-Robert,
Mr F. Gölcüklü,
Mr L.-E. Pettiti,
Mr J. De Meyer,
Mr S.K. Martens,
Mrs E. Palm,
Mr A.N. Loizou,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 28 September and
22 October 1991,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 56/1990/247/318. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since
its creation and on the list of the corresponding originating
applications to the Commission.
** As amended by Article 11 of Protocol No. 8 (P8-11), which came
into force on 1 January 1990.
*** The amendments to the Rules of Court which came into force on
1 April 1989 are applicable to this case.
_______________
PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on
12 November 1990, within the three-month period laid down by
Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the
Convention. It originated in an application (no. 12843/87)
against the Kingdom of the Netherlands lodged with the Commission
under Article 25 (art. 25) by a Netherlands national,
Mr Jacobus Petrus Koster, on 31 March 1987.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby the Netherlands
recognised the compulsory jurisdiction of the Court (Article 46)
(art. 46). The object of the request 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 para. 3
(art. 5-3).
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicant stated
that he wished to take part in the proceedings and designated the
lawyer who would represent him (Rule 30).
3. The Chamber to be constituted included ex officio
Mr S.K. Martens, the elected judge of Netherlands nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the
President of the Court (Rule 21 para. 3 (b)). On
22 November 1990, in the presence of the Registrar, the President
drew by lot the names of the other seven members, namely
Mr Thór Vilhjálmsson, Mrs D. Bindschedler-Robert, Mr F. Gölcüklü,
Mr L.-E. Pettiti, Mr J. De Meyer, Mrs E. Palm and Mr A.N. Loizou
(Article 43 in fine of the Convention and Rule 21 para. 4)
(art. 43).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5) and, through the Registrar, consulted the Agent
of the Netherlands Government ("the Government"), the Delegate
of the Commission and the applicant's representative on the need
for a written procedure (Rule 37 para. 1).
On 5 and 10 April 1991 Mr Koster's lawyer and then the Government
informed the Registrar that they would not be submitting
memorials. On 4 July the Registrar received the applicant's
claims under Article 50 (art. 50) of the Convention.
5. On 22 August the Commission communicated to the Registrar
various documents which he had requested from it on the
instructions of the Court.
6. Having consulted, through the Registrar, those who would be
appearing before the Court, the President had directed on
11 February 1991 that the oral proceedings should open on
23 September (Rule 38).
7. The hearing took place in public in the Human Rights
Building, Strasbourg, on the appointed day; Mr Ryssdal, who was
unable to attend, was replaced as President by Mr J. Cremona, the
Vice President of the Court (Rule 21 para. 5, second
sub-paragraph). The Court had held a preparatory meeting
beforehand.
There appeared before the Court:
(a) for the Government
Mr K. de Vey Mestdagh, Deputy Legal
Adviser, Ministry of Foreign Affairs, Agent,
Mrs M.W.J. Bechger, Senior Legal Officer,
Ministry of Justice,
Mr J.J. Buirma, Head of the Military Criminal
Law and Criminal Procedure Department,
Ministry of Defence, Advisers;
(b) for the Commission
Mr H.G. Schermers, Delegate;
(c) for the applicant
Mr E. Hummels, advokaat en prokureur, Counsel.
The Court heard addresses by Mr de Vey Mestdagh for the
Government, by Mr Schermers for the Commission and by Mr Hummels
for the applicant.
AS TO THE FACTS
I. The particular circumstances of the case
8. Mr Jacobus Koster, a Netherlands national, currently resides
at Gainesville, Florida (United States of America).
9. On 11 March 1987, while completing his compulsory military
service, despite being warned he repeatedly refused to obey an
order that he should take receipt of a weapon and a uniform.
Accordingly he was arrested on the same day at 3.45 p.m. and then
kept in custody, the measure being confirmed by the officer
commanding his unit at 4.30 p.m. He was questioned by the
military police (Koninklijke marechaussee) at 7 p.m.
10. On Friday 13 March the applicant, assisted by a lawyer
appointed to act for him, appeared before the investigating
officer (officier-commissaris) assigned to the case.
11. Before the Military Court, which sat in private on
Monday 16 March, Mr Koster's lawyer pleaded that the length of
his detention had exceeded the four-day limit which, he argued,
derived from Article 5 para. 3 (art. 5-3) of the Convention. He
added that the Military Court did not have the necessary
independence and impartiality to rule on questions of this
nature.
However, the Military Court confirmed the earlier detention and
extended it by thirty days, in order, so it stated, to maintain
military discipline. In its opinion, Article 5 para. 3
(art. 5-3) did not lay down specific time-limits. The court had
moreover sat as soon as possible, regard being had to the fact
that its military members had been participating in two-yearly
major manoeuvres at the time; moreover, the fourth day following
the arrest had been a Sunday. In addition, the European
Commission had recognised, in its opinion on the applications in
the cases of van der Sluijs (no. 9362/81), Zuiderveld
(no. 9363/81) and Klappe (no. 9387/81), that the Military Courts
were competent to rule on such questions.
12. On 9 September 1987 the Supreme Military Court sentenced the
applicant to a term of one year's imprisonment, from which was
deducted the time which he had already spent in detention.
II. Relevant national law
13. At the material time, criminal procedure for army and air
force personnel, including in particular the matter of arrest and
detention on remand, was 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. It was
repealed with effect from 1 January 1991.
14. Every officer and non-commissioned officer was empowered to
arrest military personnel of lower rank suspected of a serious
offence, provided the circumstances required immediate
deprivation of liberty (Article 4 of the Military Code). The
resulting detention was not to exceed twenty-four hours, unless
it was extended by the commanding officer in accordance with
Article 7 (Article 5).
15. The commanding officer had to deal with the matter without
delay. He could order that the suspect be placed or kept in
detention on remand, in particular if this proved necessary to
maintain military discipline. He was to report to the commanding
General any cases of detention exceeding four days (Article 7,
first, second and sixth paragraphs).
16. The General ordered that the accused be brought for trial
before the Military Court, if this was necessary (Article 11,
first paragraph). That order was to be formulated in writing and
indicate whether or not it was appropriate to release the
accused, the grounds for keeping him in custody laid down in
Article 7 being applicable by analogy (Article 14, first and
second paragraphs).
17. Detention ordered or continued in the decision referring the
serviceman for trial was not to 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 under the referral decision had to be heard by the
officier-commissaris as speedily as possible and in any event
within four days of referral; for this purpose, he could be
assisted by an adviser (Article 33, first paragraph). Before
extending the detention, the Military Court was to give the
accused and his adviser the opportunity to put forward their
views (Article 33, second paragraph).
18. A directive of 21 March 1983 governed the bringing before
a judicial authority of military personnel in custody. It
provided as follows:
"In accordance with Article 5 para. 3 (art. 5-3) of the European
Convention on Human Rights, where a serviceman is placed in
custody, care is to be taken to ensure that, within four days of
his arrest, his case is brought before the Military Court,
sitting in private, for confirmation or extension of the
detention.
To this end, the following rules should be observed:
1. Every officer or non-commissioned officer who arrests a
member of the military personnel suspected of an offence shall
inform the officer commanding the serviceman's unit as soon as
possible.
2. If, after having questioned the accused, the officer
commanding considers that the detention should be continued or
extended, he shall inform the prosecuting officer (auditeur-
militair/fiscaal) by telephone not later than two days after the
arrest, either in person, or through a person delegated by him
(for example the officer commanding the relevant detachment of
military police).
3. If the accused appears before the auditeur-militair, the
latter shall fix, with the officer commanding or in his name, the
time and place so as to ensure that under normal circumstances,
within four days of the arrest:
(a) the accused can be brought before the auditeur-militair;
(b) the latter can communicate his opinion to the authority with
competence to refer the case to the Military Court;
(c) that authority can make an order so referring the accused
(which shall also include a decision on the matter of the
detention);
(d) the accused can be interviewed by the commanding officer;
(e) the auditeur-militair can raise the question of the
confirmation/extension of the detention of the accused in the
Military Court.
4. The different armed services shall adapt their regulations
accordingly (VS27-1 and VVKM 142)."
19. By a ministerial decree of 19 December 1983 this directive
had been incorporated in the Regulation on the application of
military criminal and disciplinary law (Voorschrift Toepassing
Militair straf- en tuchtrecht KL/Flu).
PROCEEDINGS BEFORE THE COMMISSION
20. In his application of 31 March 1987 to the Commission
(no. 12843/87), Mr Koster complained that he had not been brought
"promptly" before the Military Court, as was required under
Article 5 para. 3 (art. 5-3).
21. The Commission declared the application admissible on
6 September 1989. In its report of 3 September 1990 (Article 31)
(art. 31), it expressed the unanimous opinion that there had been
a violation of the above-mentioned provision. The full text of
the Commission's opinion is reproduced as an annex to this
judgment*.
_______________
* Note by the Registrar: For practical reasons this annex will
appear only with the printed version of the judgment
(volume 221 of Series A of the Publications of the Court), but
a copy of the Commission's report is obtainable from the
registry.
_______________
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 PARA. 3 (art. 5-3)
22. The applicant complained that the failure to bring him
before the Arnhem Military Court until five days after his arrest
was not consistent with the promptness required under
Article 5 para. 3 (art. 5-3), which is worded as follows:
"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 ... ."
23. The Government explained that the lapse of time in question
had occurred because of the weekend, which fell in the
intervening period, and the two-yearly major manoeuvres, in which
the military members of the court had been participating at the
time.
At the hearing before the Court, they conceded nevertheless that
there had been a failure to comply with the directive of
21 March 1983 which, taking as its basis Article 5 para. 3
(art. 5-3) of the Convention, laid down that the Military Court
was to sit within four days of an arrest (see paragraph 18
above).
24. The use in the French text of the word "aussitôt", with its
constraining connotation of immediacy, confirms that the degree
of flexibility attaching to the notion of "promptness" is
limited, even if the attendant circumstances can never be ignored
for the purposes of the assessment under paragraph 3. Whereas
promptness is to be assessed in each case according to its
special features (see the de Jong, Baljet and van den Brink
judgment of 22 May 1984, Series A no. 77, p. 25, para. 52), the
significance to be attached to those features can never be taken
to the point of impairing the very essence of the right
guaranteed by Article 5 para. 3 (art. 5-3), that is to the point
of effectively negativing the State's obligation to ensure a
prompt release or a prompt appearance before a judicial authority
(see the Brogan and Others judgment of 29 November 1988,
Series A no. 145-B, pp. 32-33, para. 59).
25. Like the Commission, the Court considers that the manoeuvres
in question did not justify any delay in the proceedings: as they
took place at periodical intervals and were therefore
foreseeable, they in no way prevented the military authorities
from ensuring that the Military Court was able to sit soon enough
to comply with the requirements of the Convention, if necessary
on Saturday or Sunday.
Accordingly, and even taking into account the demands of military
life and justice (see the de Jong, Baljet and van den Brink
judgment, cited above, Series A no. 77, p. 25, para. 52), the
applicant's appearance before the judicial authorities did not
comply with the requirement of promptness laid down in
Article 5 para. 3 (art. 5-3).
26. At the hearing on 23 September 1991 counsel for the
applicant raised a further complaint, namely that the Military
Court could not be regarded as a "judge or other officer
authorised by law to exercise judicial power" within the meaning
of Article 5 para. 3 (art. 5-3), since it lacked independence,
two of its three members being (low-ranking) officers who were
appointed for two years only.
The Delegate of the Commission observed that this complaint had
not been raised before the Commission.
The Court notes that, according to the Commission's decision on
the admissibility of the application, the applicant only
complained of not having been brought "promptly" before the
Military Court. Having regard to the wording of the application,
the Court shares this view and accordingly finds that it lacks
jurisdiction to examine this complaint.
II. APPLICATION OF ARTICLE 50 (art. 50)
27. Under Article 50 (art. 50) of the Convention:
"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."
28. Mr Koster claimed in the first place 2,400 guilders for
damage. He argued that in order to comply with
Article 5 para. 3 (art. 5-3) the military authorities ought to
have released him pending the hearing in the Military Court. His
anti-militarist beliefs had, he maintained, made his detention
all the more distressing.
In the opinion of the Government and the Commission, the
applicant sustained no damage other than the lack of a prompt
judicial review, as the length of his detention on remand was
deducted in its entirety from the main sentence (see
paragraph 12 above).
The Court takes the view that the feeling of frustration which
the violation found may have engendered does not warrant the
award of pecuniary compensation. The finding of a violation of
Article 5 (art. 5) constitutes in itself sufficient just
satisfaction in this respect.
29. The applicant also sought a sum of 11,376 guilders for the
expenses and fees, which he itemised, of the lawyer who
represented him before the Commission and the Court. He further
claimed 250 guilders for out-of-pocket expenses incurred in
relation to the Strasbourg proceedings. The Government did not
submit any observations in this connection.
The amount claimed is consistent with the criteria laid down in
the Court's case-law. It should therefore be awarded in its
entirety, less the sum already paid by the Council of Europe as
legal aid, namely 9,382.50 French francs.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of paragraph 3 of
Article 5 (art. 5-3);
2. Holds that the Netherlands is to pay to the applicant,
within three months, 11,626 (eleven thousand six hundred and
twenty-six) guilders, less 9,382f.50 (nine thousand three hundred
and eighty two French francs and fifty centimes) in respect of
costs and expenses;
3. Dismisses the remainder of the claim for just satisfaction.
Done in English and in French, and delivered at a public hearing
in the Human Rights Building, Strasbourg, on 28 November 1991.
Signed: John CREMONA
President
Signed: Marc-André EISSEN
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of the Rules of Court, the
separate opinion of Mr De Meyer is annexed to this judgment.
Initialled: J.C.
Initialled: M.-A.E.
SEPARATE OPINION OF JUDGE DE MEYER
(Translation)
In my view the additional complaint invoked at the hearing by
counsel for the applicant* raised a question not of jurisdiction,
but of admissibility.
The Court undoubtedly had jurisdiction to examine this
complaint**. It could at the most decide that it was no longer
admissible at this stage of the proceedings.
_______________
* Paragraph 26 of the judgment.
** See the De Wilde, Ooms and Versyp judgment of 18 June 1971,
Series A no. 12, pp. 29-30, paras. 47-52 (in particular
para. 49).
_______________