COURT (PLENARY)







                            CASE OF ENGEL AND OTHERS v. THE NETHERLANDS


                   (Application no. 5100/71; 5101/71; 5102/71; 5354/72; 5370/72)







                                             JUDGMENT




                                            STRASBOURG


                                            8 June 1976



In the case of Engel and others,

The European Court of Human Rights, taking its decision in plenary session in application of Rule
48 of the Rules of Court and composed of the following judges:

          MM. H. MOSLER, President,

                   A. VERDROSS,

                   M. ZEKIA,

                   J. CREMONA,

                   G. WIARDA,

                   P. O'DONOGHUE,

          Mrs. H. PEDERSEN,

          MM. T. VILHJÁLMSSON,

                   S. PETREN,

                   A. BOZER,

                   W. GANSHOF VAN DER MEERSCH,

          Mrs. D. BINDSCHEDLER-ROBERT,

          M.     D. EVRIGENIS

and also Mr. M.-A. EISSEN, Registrar, and Mr. H. PETZOLD, Deputy Registrar,

Having deliberated in private on 30 and 31 October 1975, from 20 to 22 January and from 26 to 30
April 1976,

Delivers the following judgment, which was adopted on the last-mentioned date:

PROCEDURE

1. The case of Engel and others was referred to the Court by the European Commission of Human
Rights (hereinafter referred to as "the Commission") and by the Government of the Kingdom of the
Netherlands (hereinafter referred to as "the Government"). The case originated in five applications
against the Kingdom of the Netherlands which were lodged with the Commission in 1971 by Cornelis
J.M. Engel, Peter van der Wiel, Gerrit Jan de Wit, Johannes C. Dona and Willem A.C. Schul, all
Netherlands nationals.

2. Both the Commission's request, to which was attached the report provided for in Article 31 (art.
31) of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter
referred to as "the Convention"), and the application of the Government were lodged with the
registry of the Court within the period of three months laid down in Articles 32 para. 1 and 47
(art. 32-1, art. 47) - the former on 8 October 1974, the latter on 17 December. They 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). Their purpose is to
obtain a decision from the Court as to whether or not the facts of the case disclose a breach by
the respondent State of its obligations under Articles 5, 6, 10, 11, 14, 17 and 18 (art. 5, art. 6,
art. 10, art. 11, art. 14, art. 17, art. 18) of the Convention.

3. On 15 October 1974, the President of the Court drew by lot, in the presence of the Registrar,
the names of five of the seven judges called upon to sit as members of the Chamber; Mr. G.J.
Wiarda, the elected judge of Netherlands nationality, and Mr. H. Mosler, Vice-President of the
Court, were ex officio members under Article 43 (art. 43) of the Convention and Rule 21 para. 3 (b)
of the Rules of Court respectively. The five judges thus designated were Mr. A. Verdross, Mr. M.
Zekia, Mr. P. O'Donoghue, Mr. T. Vilhjálmsson and Mr. R. Ryssdal (Article 43 in fine of the
Convention and Rule 21 para. 4) (art. 43).

Mr. Mosler assumed the office of President of the Chamber in accordance with Rule 21 para. 5.

4. The President of the Chamber ascertained, through the Registrar, the views of the Agent of the
Government and the delegates of the Commission regarding the procedure to be followed. By an Order
of 31 October 1974, he decided that the Government should file a memorial within a time-limit
expiring on 14 February 1975 and that the delegates should be entitled to file a memorial in reply
within two months of receipt of the Government's memorial. On 22 January 1975, he extended the
time-limit granted to the Government until 1 April.

The Government's memorial was received at the registry on 1 April, that of the delegates on 30 May
1975.

5. After consulting, through the Registrar, the Agent of the Government and the delegates of the
Commission, the President decided by an Order of 30 June 1975 that the oral hearings should open on
28 October.

6. At a meeting held in private on 1 October 1975 in Strasbourg, the Chamber decided under Rule 48
to relinquish jurisdiction forthwith in favour of the plenary Court, "considering that the case
raise(d) serious questions affecting the interpretation of the Convention ...". At the same time,
it took note of the intention of the Commission's delegates to be assisted during the oral
procedure by Mr. van der Schans, who had represented the applicants before the Commission; it also
authorised Mr. van der Schans to speak in Dutch (Rules 29 para. 1 in fine and 27 para. 3).

7. On 27 October 1975, the Court held a preparatory meeting to consider the oral stage of the
procedure. At this meeting it compiled two lists of requests and questions which were communicated
to the persons who were to appear before it. The documents thus requested were lodged by the
Commission on the same day and by the Government on 21 November 1975.

8. The oral hearings were held in public at the Human Rights Building, Strasbourg, on 28 and 29
October 1975.

There appeared before the Court:

- for the Government:

       Mr. C.W. VAN SANTEN, Deputy Legal Adviser

                            at the Ministry of Foreign Affairs,
Agent;

       Mr. C.W. VAN BOETZELAER VAN ASPEREN, Permanent

                            Representative of the Netherlands to the Council of      Europe,


Substitute Agent;

       Mr. E. DROOGLEEVER FORTUIJN, Solicitor

                            for the Government,

       Mr. R.J. AKKERMAN, Official

                            at the Ministry of Defence,

       Mr. W. BREUKELAAR, Official

                            at the Ministry of Justice,

       Mr. J.J.E. SCHUTTE, Official

                            at the Ministry of Justice,

       Mr. A.D. BELINFANTE, Professor

                            at the University of Amsterdam,
Advisers;

- for the Commission:

       Mr. J.E.S. FAWCETT,                                                 Principal Delegate,

       Mr. F. ERMACORA,                                                                   Delegate,

       Mr. E. VAN DER SCHANS, who had represented the applicants

                            before the Commission, assisting the delegates under Rule
29 para. 1, second sentence.

The Court heard addresses by Mr. Fawcett, Mr. Ermacora and Mr. van der Schans for the Commission
and by Mr. van Santen, Mr. Droogleever Fortuijn and Mr. Belinfante for the Government, as well as
their replies to questions put by the Court.

9. On 30 October, the Commission produced various documents which its representatives had mentioned
during the oral hearings.

10. On the instructions of the Court, the Registrar requested the Commission, on 3 and 13 November
1975, to supply it with details on a particular point of the case; these were furnished on 4 and 14
November.

AS TO THE FACTS

11. The facts of the case may be summarised as follows:

12. All applicants were, when submitting their applications to the Commission, conscript soldiers
serving in different non-commissioned ranks in the Netherlands armed forces. On separate occasions,
various penalties had been passed on them by their respective commanding officers for offences
against military discipline. The applicants had appealed to the complaints officer (beklagmeerdere)
and finally to the Supreme Military Court (Hoog Militair Gerechtshof) which in substance confirmed
the decisions challenged but, in two cases, reduced the punishment imposed.

THE SYSTEM OF MILITARY DISCIPLINARY LAW IN THE NETHERLANDS

13. The disciplinary law concerning the Netherlands Army, applicable at the time of the measures
complained of in this case, was set out in the Military Discipline Act of 27 April 1903 (Wet op de
Krijgstucht - hereinafter referred to as "the 1903 Act"), the Regulations on Military Discipline of
31 July 1922 (Reglement betreffende de Krijgstucht), the Military Penal Code of 27 April 1903
(Wetboek van Militair Strafrecht) and the Army and Air Force Code of Procedure in its version of 9
January 1964 (Rechtspleging bij de Land-en Luchtmacht).

This system of law has evolved during the course of the years. In particular, certain provisions of
the 1903 Act, applied in the present case, have been repealed or amended by an Act of 12 September
1974, which came into force on 1 November 1974.

14. Alongside disciplinary law, there exists in the Netherlands a military criminal law.
Proceedings under the latter are held at first instance before a court martial (Krijgsraad) and
subsequently, if appropriate, before the Supreme Military Court on appeal.

The account that follows relates solely to military disciplinary law which, like military criminal
law, applies equally to conscript servicemen, such as the applicants, and to volunteers.

Military disciplinary offences

15. Offences against military discipline are defined in Article 2 of the 1903 Act as being:

"1. all acts not included in any criminal legislation which are contrary to any official order or
regulation or inconsistent with military discipline and order;

2. such criminal acts as fall within the jurisdiction of the military judge, insofar as they are
inconsistent with military discipline and order but at the same time of such trivial nature that
the matter can be dealt with in proceedings other than criminal proceedings."

The Regulations on Military Discipline of 31 July 1922 set out the basic principles of military
discipline (Section 15 para. 2). Under Section 16 para. 1, the question whether or not the conduct
of a member of the armed forces is consistent with military discipline and order must be answered
by reference to the general considerations set out in the first part of those Regulations.

Sections 17 to 26 list - by way of example, as stated in Section 16 para. 2 - offences against
military discipline, such as membership of extremist organisations, non-observance of secrecy,
possession and distribution of objectionable writings, showing discontentment, failure to perform
military duties, absence without leave, incorrect or disorderly behaviour, disrespect for property,
failure to give assistance, neglect of hygiene and cleanliness, failure to perform watch and patrol
duties, etc.

Several of these acts and omissions constitute at the same time criminal offences punishable under
the Military Penal Code, for example, absence without leave for one day or more (Article 96),
disobedience to a military order (Article 114) and distribution of objectionable writings (Article
147).

Under Article 8 of the Army and Air Force Code of Procedure the competent officer imposes a
disciplinary penalty if he considers that the person concerned is guilty of an offence that can be
dealt with outside criminal proceedings.

Military disciplinary penalties and measures

16. At the relevant time, the provisions on the various penalties that could be imposed on persons
having committed disciplinary offences were contained in Articles 3 to 5 of the 1903 Act.

The nature of the penalties depended on the rank of the offender. Thus, Article 3-A provided for
reprimand, "light arrest (licht arrest) of at most 14 days" and "strict arrest (streng arrest) of
at most 14 days" as the principal disciplinary punishments for officers. As regards
non-commissioned officers, Article 4-A provided, inter alia, for reprimand, restrictions to camp
during the night, "light arrest of at most 21 days", "aggravated arrest (verzwaard arrest) of at
most 14 days" and "strict arrest of at most 14 days". Ordinary servicemen were, under Article 5-A,
subject, broadly speaking, to the same punishments as non-commissioned officers, with the
additional possibility for privates of "committal to a disciplinary unit" (plaatsing in een
tuchtklasse). All ranks of servicemen could, under paragraph B of each of the above Articles, also
suffer loss of wages as "supplementary punishment".

17. Under the 1903 Act the manner of execution of disciplinary punishments also varied according to
rank.

18. Execution of light arrest was governed by Article 8:

"Light arrest shall be carried out:

A. By officers:

1. on land: in their dwellings, tent or barracks or, when bivouacking, in the place designated by
the commanding officer;

2. ...

B. By non-commissioned officers and ordinary servicemen:

1. on land: in their barracks, base or dwellings or, when in quarters, camping or bivouacking, in
the place designated by the commanding officer;

2. ...

...

Servicemen undergoing light arrest are not excluded from performing their duties."

The effect of this provision was that any serviceman under light arrest, irrespective of rank, had
usually to remain in his dwelling during off-duty hours if he lived outside the barracks; otherwise
he was confined to barracks.

Officers and non-commissioned officers normally lived outside, whereas ordinary servicemen were as
a rule obliged to live within, the barracks. In practice, ordinary servicemen had for some time
enjoyed a degree of freedom of movement in the evenings between five o'clock and midnight and at
weekends. They often made use of this to stay with their families but this did not mean that they
were no longer required to live in barracks.

By reason of the above, an ordinary serviceman, unlike an officer or non-commissioned officer, was
in general not able to serve light arrest at home, and he thereby lost the privilege of returning
to his family home during off-duty hours. Conscripts permitted to live outside the barracks were in
the same situation: under Article 123 of the Rules for Internal Service in the Royal Army
(Reglement op de Inwendige Dienst der Koninklijke Landmacht), the permission was suspended, inter
alia, in the case of disciplinary arrest; however, this provision, deemed contrary to the 1903 Act,
disappeared in 1974.

A serviceman under light arrest at the barracks was allowed visits, correspondence and the use of
the telephone; he could move freely about the barracks outside duty hours, being able for instance
to visit the camp cinema, canteen and other recreation facilities.

19. The execution of aggravated arrest, which applied only to non-commissioned officers and
ordinary servicemen, was governed by Article 9 of the 1903 Act. Those concerned continued to
perform their duties but for the rest of the time had to remain, in the company of other servicemen
undergoing a similar punishment, in a specially designated but unlocked place. The offender might
receive visits if he had the company commander's written permission. Unlike a person under light
arrest, he could not move freely about the barracks so as to visit the cinema, canteen or
recreation facilities. As far as possible, ordinary servicemen had to be separated from their
fellows (afzondering) during the night.

20. The execution of strict arrest was governed by Article 10 of the 1903 Act. The period of
arrest, covering both duty and off-duty hours, was served by officers in a similar manner to light
arrest, that is they usually remained at home, whereas non-commissioned officers and ordinary
servicemen were locked in a cell. All ranks were excluded from the performance of their normal
duties.

21. Execution of what at the time was the most severe form of disciplinary penalty, committal to a
disciplinary unit (plaatsing in een tuchtklasse), which applied only to privates, was governed by
Articles 18 and 19 of the 1903 Act. This punishment consisted of submitting the offender to a
stricter discipline than normal by sending him to an establishment which was specially designated
for that purpose (Article 18). According to Article 19, service in a disciplinary unit was imposed
for a period, determined when the penalty was pronounced, of from three to six months. In this
respect alone did it differ from committal to a punishment unit (plaatsing in een strafklasse), a
supplementary punishment which, under Article 27 of the Military Penal Code, could be imposed on a
serviceman, in the context of criminal proceedings, for a period of from three months to two years.

Committal to a disciplinary unit, when it was ordered towards the end of military service,
generally delayed the individual's return to civil life. Its execution was governed by a Decree of
14 June 1971 (Besluit straf-en tuchtklassen voor de krijgsmacht) which concerned both committals to
a punishment unit and, in principle (Article 57), committal to a disciplinary unit. Those
undergoing such punishment were removed from their own unit and placed in a special, separate
group; their movements were restricted, they carried out their military service under constant
supervision and emphasis was placed on their education (Articles 17, 18 and 20).

The units were divided into three sections. Offenders as a rule passed thirty days in each of the
first two, but these periods could be prolonged or shortened according to their conduct (Articles
26 and 27). As far as possible, they spent their nights separated from each other (afgezonderd -
Article 28). In the first section, they were allowed to receive visits twice a month and to study
during off-duty hours (Article 29). In the second, they also enjoyed a degree of freedom of
movement on Saturdays and Sundays and at least twice a week could visit the canteen and/or
recreation facilities in the evening after duty (Article 30). In the third, the regime was
appreciably less strict (Article 31).

22. Under Article 20 of the 1903 Act, a serviceman on whom the punishment of committal to a
disciplinary unit had been imposed might, on that ground, be placed under arrest after sentence had
been passed and held in custody until he arrived at the establishment where the punishment was to
be served. It seems that any of the three forms of arrest outlined above could be employed under
the terms of this text.

No provision existed in military disciplinary law to limit or fix in advance or otherwise control
the duration of this interim custody, or to provide for the possibility of deducting the period of
such custody from the time to be spent in the disciplinary unit.

23. Disciplinary penalties imposed on a serviceman could be taken into account when, for example,
the question of his promotion arose. On the other hand they were not entered on his criminal record
and, according to the information obtained by the Court at the hearing on 28 October 1975, had no
effects in law on civil life.

24. As the result of the Act of 12 September 1974, both the range of disciplinary punishments
available and the manner in which they are to be enforced have been made the same for all ranks of
servicemen. Strict arrest and committal to a disciplinary unit are abolished. Even before its entry
into force (1 November 1974), these punishments had ceased to be imposed in practice, following a
ministerial instruction.

While reprimand, light arrest and aggravated arrest remain, the maximum period during which any
arrest may be imposed is now fourteen days, and aggravated arrest is henceforth also applicable to
officers (Articles 3, 8 and 9 of the 1974 Act). Aggravated arrest today constitutes the severest
form of disciplinary punishment. Three further penalties have been introduced by the 1974 Act:
extra duties of between one and two hours a day, compulsory presence overnight in the barracks or
quarters, and a fine.

Military disciplinary procedure

25. Articles 39 to 43 of the 1903 Act state who may impose disciplinary punishments. This is
normally the commanding officer of the individual's unit. He investigates the case and hears the
serviceman accused (Article 46 of the 1903 Act) and questions witnesses and experts if that proves
necessary.

For each offence committed the officer chooses which of the various punishments available under the
law should be applied. "When determining the nature and severity of disciplinary punishments", he
shall be "both just and severe", shall have "regard to the circumstances in which the offence was
committed as well as to the character and customary behaviour of the accused" and shall base his
decision "on his own opinion and belief" (Article 37 of the 1903 Act).

26. Article 44 of the 1903 Act provides that any superior who has sufficient indication to suppose
that a subordinate has committed a severe offence against military discipline is entitled, if
necessary, to give notice of his provisional arrest (voorlopig arrest); the subordinate is obliged
to comply immediately with that notification. Provisional arrest is usually served in the same way
as light arrest, but, if required either in the interest of the investigation or in order to
prevent disorder, it is served in a similar way to aggravated or, as was the case prior to the 1974
Act, strict arrest. The serviceman concerned is as a rule excluded from performing his duty outside
the place where he is confined. Article 45 stipulates that provisional arrest shall not last longer
than 24 hours and Article 49 states that the hierarchical superior of the officer imposing
provisional arrest may set it aside after hearing the latter. The period of such provisional arrest
may be deducted in whole or in part from the punishment imposed.

27. Under Article 61 of the 1903 Act the serviceman on whom a disciplinary penalty has been imposed
may challenge before the complaints officer his punishment or the grounds thereof unless it has
been imposed by a military court. The complaints officer is the hierarchical superior of the
officer giving the initial decision rather than a specialist, but he is usually assisted by a
colleague who is a lawyer, especially in cases (before the 1974 Act) of committal to a disciplinary
unit.

The complaint must be submitted within four days; if the complainant is under arrest he may on
request consult other persons named by him (maximum of three), unless the commanding officer
considers their presence to be inadvisable (Article 62).

The complaints officer must examine the case as soon as possible; he questions witnesses and
experts to the extent he thinks necessary and hears the complainant and the punishing officer. He
then gives a decision which must be accompanied by reasons and communicated to the complainant and
the punishing officer (Article 65).

28. Appeal against the decision imposing a disciplinary punishment has no suspensive effect
although the Minister of Defence may defer the execution of such punishment on account of special
circumstances. Article 64 of the 1903 Act provided an exception in the case of committal to a
disciplinary unit; the serviceman's appeal did not, however, entail the suspension or termination
of any interim custody imposed under Article 20.

29. If the punishment has not been quashed by the complaints officer, the complainant may appeal
within four days to the Supreme Military Court (Article 67 of the 1903 Act).

30. The composition of this Court and its functioning are regulated by the "Provisional
Instructions" on the Supreme Military Court (Provisionele Instructie voor het Hoog Militair
Gerechtshof) promulgated on 20 July 1814 but since amended several times. Under Article 1 the Court
shall be established at The Hague and shall be composed of six members: two civilian jurists - one
of whom is the Court's President - and four military officers. A State Advocate for the Armed
Forces (advocaat-fiscaal voor de Krijgsmacht) and a Registrar are attached to the Court.

The civilian members (Article 2 of the "Provisional Instructions") must be Justices of the Supreme
Court (Hoog Raad) or Judges of the Court of Appeal (Gerechtshof) at The Hague and Articles 11, 12,
13 and 15 of the Judicature Act (Wet op de Rechterlijke Organisatie) of 18 April 1827, providing,
inter alia, for tenure of office and grounds for discharge, are applicable to them. They are
appointed by the Crown upon the joint recommendation of the Ministers of Justice and of Defence;
their term of office is equal to that of the Justices of the Supreme Court or the Judges of a Court
of Appeal.

The military members of the Court (Article 2 (a) of the "Provisional Instructions"), who must be
not less than 30 nor more than 70 years of age, are likewise appointed by the Crown upon the joint
recommendation of the Ministers of Justice and of Defence. They may also be dismissed in a similar
manner. In theory, therefore, they are removable without observance of the strict requirements and
legal safeguards laid down regarding the civilian members by the Judicature Act. According to the
Government, the appointment of the military members of the Court is normally the last in their
service career; they are not, in their functions as judges on the Court, under the command of any
higher authority and they are not under a duty to account for their acts to the service
establishment.

On assuming office, all members of the Court must swear an oath that obliges them, inter alia, to
be just, honest and impartial (Article 9 of the "Provisional Instructions"). It is true that the
military judges on the Court remain members of the armed forces and as such bound by their oath as
officers, which requires them, among other things, to obey orders from superiors. This latter oath,
however, also enjoins obedience to the law, including in general the statutory provisions governing
the Supreme Military Court and, in particular, the oath of impartiality taken by the judges.

31. Cases are never dealt with by a single judge but only by the Court as a body. The Court is
required to examine cases as soon as possible and to hear the applicant and, if necessary, the
punishing officer, the complaints officer and any witness or expert whose evidence it may wish to
obtain (Article 56 of the "Provisional Instructions"). The Court reviews the decision of the
complaints officer both in regard to the facts and to the law; in no case has it jurisdiction to
increase the penalty (Article 58).

Whereas in criminal cases the Court's hearings are public (Article 43 of the "Provisional
Instructions" and paragraph 14 above), it sits in camera in disciplinary cases. On the other hand
the judgment is pronounced at a public session; it must be accompanied by reasons and is
communicated to the complaints officer, the punishing officer and the appellant serviceman (Article
59).

32. At the time of the measures complained of in this case, no provision in law was made for the
legal representation of the complainant. Nevertheless, as a report by the acting Registrar of the
Supreme Military Court, dated 23 December 1970, explains, the Court in practice granted legal
assistance in certain cases where it was expected that the person concerned would not be able
himself to cope with the special legal problems raised in his appeal. This applied particularly to
cases where the Convention was invoked. The assistance was, however, limited to such legal matters.

The position altered in 1973: under a ministerial instruction of 7 November 1973 (Regeling
vertrouwensman - KL), a serviceman accused of a disciplinary offence may have the services of a
"trusted person" (vertrouwensman) at all stages of the proceedings and even of a lawyer if the
matter comes before the Supreme Military Court (Articles 1, 17 and 18 of the instruction).

FACTS RELATING TO THE INDIVIDUAL APPLICANTS

Mr. Engel

33. In March 1971, Mr. Engel was serving as a sergeant in the Netherlands Army. He in fact lived at
home during off-duty hours. The applicant was a member of the Conscript Servicemen's Association
(Vereniging van Dienstplichtige Militairen - V.V.D.M.) which was created in 1966 and aims at
safeguarding the interests of conscripts. It was recognised by the Government for taking part in
negotiations in this field and its membership included about two-thirds of all conscripts.

Mr. Engel was a candidate for the vice-presidency of the V.V.D.M. and on 12 March he submitted a
request to his company commander for leave of absence on 17 March in order to attend a general
meeting in Utrecht at which the elections were to be held. He did not, however, mention his
candidature.

Subsequently he became ill and stayed home under the orders of his doctor who gave him sick leave
until 18 March and authorised him to leave the house on 17 March. On 16 March, the company
commander had a talk with the battalion commander and it was agreed that no decision should be
taken regarding the above-mentioned request pending further information from the applicant who had
given no notice of his absence or return. However, on the following day a check was made at the
applicant's home and it was discovered that he was not there. In fact, he had gone to the meeting
of the V.V.D.M. where he had been elected vice-president.

34. On 18 March Mr. Engel returned to his unit and on the same day his company commander punished
him with four days' light arrest for having been absent from his residence on the previous day.

The applicant considered this penalty a serious interference with his personal affairs in that it
prevented him from properly preparing himself for his doctoral examination at the University of
Utrecht which had been fixed for 24 March. According to the applicant, he had made several attempts
on 18 March to speak to an officer on this point but without success. Believing that under the army
regulations non-commissioned officers were allowed to serve their light arrest at home, he left the
barracks in the evening and spent the night at home. However, the next day his company commander
imposed a penalty of three days' aggravated arrest on him for having disregarded his first
punishment.

The applicant, who had just been informed that, with effect from 1 April 1971, he had been demoted
to the rank of private, again left the barracks in the evening and went home. He was arrested on
Saturday 20 March by the military police and provisionally detained in strict arrest for about two
days, by virtue of Article 44 of the 1903 Act (paragraph 26 above). On Monday 22 March his company
commander imposed a penalty of three days' strict arrest for having disregarded his two previous
punishments.

35. The execution of these punishments was suspended by ministerial decision in order to permit the
applicant to take his doctoral examination which he passed on 24 March 1971. Moreover, on 21, 22
and 25 March Mr. Engel complained to the complaints officer about the penalties imposed on him by
the company commander. On 5 April the complaints officer decided, after having heard the parties,
that the first punishment of four days' light arrest should be reduced to a reprimand, the second
punishment of three days' aggravated arrest to three days' light arrest, and the third punishment
of three days' strict arrest to two days' strict arrest. In the last two cases the decision was
based on the fact that the previous punishment(s) had been reduced and that the applicant had
obviously been under considerable stress owing to his forthcoming examination. The complaints
officer further decided that Mr. Engel's punishment of two days' strict arrest should be deemed to
have been served from 20 to 22 March, during his provisional arrest.

36. On 7 April 1971 the applicant appealed to the Supreme Military Court against the decision of
the complaints officer relying, inter alia, on the Convention in general terms. The Court heard the
applicant and obtained the opinion of the State Advocate for the Armed Forces. On 23 June 1971,
that is about three months after the date of the disciplinary measures in dispute, the Court
confirmed the contested decision. It referred to Article 5 para. 1 (b) (art. 5-1-b) of the
Convention and held that the applicant's detention had been lawful and had been imposed in order to
secure the fulfilment of an obligation prescribed by law. The system under the 1903 Act and the
applicable Regulations required in fact that every serviceman should submit to and co-operate in
maintaining military discipline. This obligation could be enforced by imposing disciplinary
punishments in accordance with the procedure prescribed by the above Act. In these circumstances,
the applicant's punishment of two days' strict arrest had been justified in order to secure the
fulfilment of that obligation.

The applicant had not received the assistance of a legally trained person at any stage in the
proceedings against him; perusal of the file in the case does not reveal if he asked for such
assistance.


Mr. van der Wiel

37. Mr. van der Wiel, at the time of his application to the Commission, was serving as a corporal
in the Netherlands Army. On the morning of 30 November 1970 he was about four hours late for duty.
His car had broken down during his weekend leave and he had had it repaired before returning to his
unit instead of taking the first train. On these grounds, the acting company commander, on the same
day, imposed a penalty of four days' light arrest on the applicant. The following day he revised
the above grounds to include a reference that the applicant had not previously requested the
commander's leave of absence.

38. On 2 December, the applicant complained about his punishment to the complaints officer
invoking, inter alia, Articles 5 and 6 (art. 5, art. 6) of the Convention. In this respect he
alleged that he had been deprived of his liberty by a decision which, contrary to the requirements
of Article 5 (art. 5), had not been taken by a judicial authority; that furthermore his case had
not been heard by an independent and impartial tribunal (Article 6 para. 1) (art. 6-1); that he did
not have adequate time and facilities for the preparation of his defence (Article 6 para. 3 (b))
(art. 6-3-b), and that he did not have legal assistance (Article 6 para. 3 (c)) (art. 6-3-c).

39. On 18 December, following the rejection by the complaints officer of his complaint on 16
December, the applicant appealed to the Supreme Military Court. On 17 March 1971, the Court heard
the applicant, who was assisted by a lawyer, Sergeant Reintjes, and obtained the opinion of the
State Advocate for the Armed Forces. The Court then quashed the complaints officer's decision but
confirmed the punishment of four days' light arrest imposed on the applicant on the original
grounds stated on 30 November 1970.

The Court first found that Article 6 (art. 6) of the Convention was not applicable in a case where
neither the determination of a criminal charge nor the determination of civil rights and
obligations was in question. The Court referred to the definition of military disciplinary offences
contained in Article 2 of the 1903 Act (paragraph 15 above) and concluded therefrom that
disciplinary proceedings clearly did not fall within the scope of Article 6 (art. 6). Nor was there
any substance in the applicant's argument that, since a conscripted man had not volunteered to come
within the jurisdiction of the military authorities, any disciplinary measure imposed upon him in
fact had a criminal character.

As regards the complaints based on Article 5 (art. 5), the Court first held that four days' light
arrest did not constitute "deprivation of liberty". In the alternative, the Court further stated
that the disputed punishment was meant to "secure the fulfilment of (an) obligation prescribed by
law", within the meaning of Article 5 para. 1 (b) (art. 5-1-b).

40. At first and second instance in the proceedings Mr. van der Wiel had not received any legal
assistance, and during the proceedings before the Supreme Military Court the legal assistance
granted to him had, in line with the practice described above at paragraph 32, been restricted to
the legal aspects of the case.


Mr. de Wit

41. Mr. de Wit, at the time of his application to the Commission, was serving as a private in the
Netherlands Army. On 22 February 1971, he was sentenced to committal to a disciplinary unit for a
period of three months by his company commander on the grounds that, on 11 February 1971, he had
driven a jeep in an irresponsible manner over uneven territory at a speed of about 40 to 50 km. per
hour; that he had not immediately carried out his mission, namely to pick up a lorry at a certain
place, but that he had only done so after having been stopped, asked about his orders and summoned
to execute them at once; that, in view of his repeatedly irregular behaviour and failure to observe
discipline, he had previously been warned about the possibility of being committed to a
disciplinary unit.

On 25 February, the applicant complained about his punishment to the complaints officer alleging,
inter alia, violations of the Convention. On 5 March, the complaints officer heard the applicant
who was assisted by Private Eggenkamp, a lawyer and member of the central committee of the
V.V.D.M., such assistance having been granted by reason of the fact that the applicant had invoked
the Convention. The complaints officer also examined six witnesses, including one, namely Private
de Vos, on the applicant's behalf, and then confirmed the punishment while altering slightly the
grounds stated therefore. He rejected the allegations under the Convention, referring to a judgment
of the Supreme Military Court dated 13 May 1970.

On 11 March, the applicant appealed to the Supreme Military Court against that decision. In
accordance with Article 64 of the 1903 Act, the applicant's successive appeals had the effect of
suspending execution of his punishment (paragraph 28 above). The Court heard the applicant and his
above-mentioned legal adviser and obtained the opinion of the State Advocate for the Armed Forces.
On 28 April 1971, the Court, without mentioning the applicant's previous behaviour, reduced the
punishment to twelve days' aggravated arrest, which sentence was executed thereafter. It considered
that, in the circumstances, the committal to a disciplinary unit for three months was too heavy a
penalty.

42. The applicant alleges that in his case the calling of two other witnesses on his behalf, namely
Privates Knijkers and Dokestijn, was prevented at every juncture. He also complains that the legal
assistance granted to him had been restricted to the legal aspects of his case.


Mr. Dona and Mr. Schul

43. Mr. Dona was serving as a private in the Netherlands Army at the time of his application to the
Commission. As editor of a journal called "Alarm", published in stencilled form by the V.V.D.M. at
the General Spoor barracks at Ermelo, he had collaborated in particular in the preparation of no. 8
of that journal dated September 1971. Acting in pursuance of the "Distribution of Writings Decree",
a ministerial decree of 21 December 1967, the commanding officer of the barracks provisionally
prohibited the distribution of this number, whose contents he considered inconsistent with military
discipline.

On 28 September, two officers met in commission on the instructions of the commanding officer in
order to hold an enquiry into the appearance of the said number. The applicant, among others, was
heard by the commission.

On 8 October 1971, the applicant was sentenced by his competent superior to three months' committal
to a disciplinary unit for having taken part in the publication and distribution of a writing
tending to undermine discipline. The decision was based on Article 2 para. 2 of the 1903 Act, read
in conjunction with the first paragraph of Article 147 of the Military Penal Code which provides:

"Any person who, by means of a signal, sign, dumb show, speech, song, writing or picture,
endeavours to undermine discipline in the armed forces or who, knowing the tenor of the writing or
the picture, disseminates or exhibits it, posts it up or holds stocks of it for dissemination,
shall be liable to a term of imprisonment not exceeding three years."

Entitled "The law of the strongest" (Het recht van de sterkste), the article objected to in no. 8
of "Alarm" alluded to a demonstration that had taken place at Ermelo on 13 August 1971 on the
initiative of the executive committee of the V.V.D.M. According to Mr. van der Schans, the
demonstration was terminated almost at once since the demonstrators had promptly returned to their
quarters following the promise by the commanding officer that, if they did so, no disciplinary
sanctions would ensue. Nevertheless, a few soldiers were allegedly transferred soon afterwards for
having participated in the incident.

The passages in the article which gave rise to the disciplinary punishment of 8 October 1971 read
as follows:

(a) "There happens to be a General Smits who writes to his 'inferiors' 'I will do everything to
keep you from violating the LAW'! But this very General is responsible for the transfers of
Daalhuisen and Duppen. Yet, as you know, measures are never allowed to be in the nature of a
disguised punishment. How devoted to the law the General is - as long as it suits him";

(b) "... in addition to ordinary punishments, the army bosses have at their disposal a complete
series of other measures - of which transfer is only one - to suppress the soldiers. That does not
come to an end by questions in Parliament - that makes them at most more careful. That only comes
to an end when these people, who can only prove their authority by punishment and intimidation,
have to look for a normal job."

44. The decision ordering the applicant's committal to a disciplinary unit referred to the extracts
quoted above. Furthermore, the decision took into account some aggravating circumstances: Mr. Dona
had collaborated in the publication of no. 6 of the journal, which had likewise been prohibited
under the "Distribution of Writings Decree" by reason of its objectionable contents; in addition,
he had taken part in the demonstrations at Ermelo and had, in particular, published in connection
therewith a pamphlet, for which he received on 13 August 1971 a punishment of strict arrest.

45. Mr. Schul, a private in the Netherlands Army at the time of his application to the Commission,
was also an editor of the journal "Alarm". The facts regarding his case are identical to those of
Mr. Dona's except that his punishment initially amounted to four months' committal to a
disciplinary unit owing to the additional aggravating circumstance of his participation in the
publication of an "Information Bulletin" for new recruits the distribution of which had been
prohibited by reason of its negative content.

46. As early as 8 October 1971, the two applicants announced their intention to complain about
their punishment. According to them, they were then asked to refrain from any further publication
while proceedings were pending against them. The Government maintain that they were only requested
not to publish other articles tending to undermine military discipline. The applicants replied
before the Court that they had not the slightest intention to write such articles and that they had
emphasised this on 28 September 1971 before the commission of enquiry. According to the report of
the latter, Mr. Dona had declared that it was not at all his aim to write articles that he expected
to be prohibited, and Mr. Schul is recorded as saying: "When we produce pamphlets of this kind, it
is not our intention that they should be prohibited. The intention is that they should be read. The
risk of their being prohibited is great."

Be that as it may, the applicants refused to give the undertaking requested and they were thereupon
both placed under aggravated arrest in accordance with Article 20 of the 1903 Act.

47. The applicants complained about their punishment to the complaints officer who on 19 October
confirmed it, while in the case of Mr. Dona slightly modifying the grounds. He rejected the
applicants' submissions, including those concerning Articles 5, 6 and 10 (art. 5, art. 6, art. 10)
of the Convention. In connection with Articles 5 and 6 (art. 5, art. 6), he referred to a decision
of the Supreme Military Court delivered on 13 May 1970. The complaints officer also specified that
the applicants should remain in interim custody in accordance with Article 20 of the 1903 Act.

48. The applicants appealed to the Supreme Military Court, Mr. Schul on 21 October and Mr. Dona on
the next day, invoking Articles 5, 6 and 10 (art. 5, art. 6, art. 10) of the Convention.

Pursuant to Article 64 of the 1903 Act, the successive complaints and appeals by the applicants
suspended their committal to a disciplinary unit but not their interim custody (paragraph 28
above).

On 27 October 1971, the Court ordered release of the applicants after they had promised to accept
the Court's judgment on the merits of the case, to comply therewith in the future and, while
proceedings were pending against them, to refrain from any activity in connection with the
compilation and distribution of written material the contents of which could be deemed to be at
variance with military discipline. According to the applicants, this undertaking was given only in
extremis as there was no legal remedy available to terminate their interim custody.

Like Mr. de Wit, the applicants had been assisted before the Court by Private Eggenkamp who was,
however, able only to deal with the legal aspects of their case (paragraphs 41-42 above).

49. On 17 November 1971 the Supreme Military Court confirmed Mr. Dona's committal to a disciplinary
unit for three months, reduced Mr. Schul's committal from four to three months and modified
slightly the grounds for punishment in both cases. The Court rejected as being ill-founded the
applicants' allegations. Making mention in both cases of their previous conduct and convictions,
the Court recalled particularly that they had previously participated in the publication and
distribution of writings that were prohibited on the basis of the decree of 21 December 1967
(paragraphs 44-45 above). When fixing the punishment, the Court deemed these factors to be
indicative of their general behaviour.

The Court then dealt with the applicants' allegations under Articles 5, 6 and 10 (art. 5, art. 6,
art. 10) of the Convention, and also rejected them.

As regards Article 5 (art. 5), the Court held that the obligation to serve in a disciplinary unit
did not constitute "deprivation of liberty". In the alternative, adopting reasoning similar to that
contained in its decision on Mr. Engel's appeal (paragraph 36 above), the Court found that the
disputed punishments had been justified under Article 5 para. 1 (b) (art. 5-1-b).

On the issue of Article 6 para. 1 (art. 6-1), the Court considered that the disciplinary
proceedings relating to the publication of the journal "Alarm" had involved the determination
neither of any "civil right", such as freedom of expression, nor of any "criminal charge"; on the
latter point, the Court based its decision on reasons similar to those given in the decision on Mr.
van der Wiel's appeal (paragraph 39 above).

The applicants also contended that the measures taken against them interfered with their freedom of
expression. In this respect, the Court relied on paragraph 2 of Article 10 (art. 10-2); in its
opinion, the restrictions objected to had been necessary in a democratic society for the prevention
of disorder within the field governed by Article 147 of the Military Penal Code.

Finally, the applicants maintained that their interim custody had been inconsistent with Article 5
para. 1 (c) (art. 5-1-c) of the Convention and claimed compensation on this account under Article 5
para. 5 (art. 5-5). The Court held that it had no competence to examine and decide such a claim.

50. A few days after the dismissal of their appeals, Mr. Dona and Mr. Schul were sent to the
Disciplinary Barracks (Depot voor Discipline) at Nieuwersluis in order to serve their punishment.
They were not allowed to leave this establishment during the first month; moreover, they were both
locked up in a cell during the night.

51. Apart from the particular facts relating to Mr. Dona and Mr. Schul, there was in the background
a pattern of conflict between the Government and the V.V.D.M. In mid-August 1971, for instance,
there had occurred the demonstration at Ermelo mentioned above at paragraph 43. The applicants also
cite the fact that prior to their punishment, and in particular between 1 January and 20 October
1971, the Minister of Defence had decreed a great number of prohibitions on publications by the
V.V.D.M. Furthermore, other servicemen, as editors of sectional journals of the Association, had
been punished in criminal or in disciplinary proceedings - by aggravated arrest, fines and, in one
case, military detention (Article 6 para. 3 of the Military Penal Code) - for writing or
distributing publications considered as likely to undermine military discipline within the meaning
of Article 147 of the Military Penal Code.

Since a ministerial instruction, dated 19 November 1971, and thus subsequent to the measures
presently complained of, all cases involving a possible infringement of Article 147 of the Military
Penal Code have had to be submitted to the military criminal courts (paragraph 14 above) and not to
the disciplinary authorities. The "Distribution of Writings Decree" of 21 December 1967, mentioned
above at paragraph 43, was repealed on 26 November 1971.

PROCEDURE BEFORE THE COMMISSION

52. The applications were lodged with the Commission on 6 July 1971 by Mr. Engel, on 31 May 1971 by
Mr. van der Wiel and Mr. de Wit, on 19 December 1971 by Mr. Dona and on 29 December 1971 by Mr.
Schul. On 10 February 1972, the Commission decided to join the applications in accordance with the
then Rule 39 of its Rules of Procedure.

In common with each other, the applicants complained that the penalties imposed on them constituted
deprivation of liberty contrary to Article 5 (art. 5) of the Convention, that the proceedings
before the military authorities and the Supreme Military Court were not in conformity with the
requirements of Article 6 (art. 6) and that the manner in which they were treated was
discriminatory and in breach of Article 14 read in conjunction with Articles 5 and 6 (art. 14+5,
art. 14+6).

Mr. Engel also alleged a separate breach of Article 5 (art. 5) in connection with his provisional
arrest and a breach of Article 11 (art. 11) on the particular facts of his case.

For their part, Mr. Dona and Mr. Schul contended that their interim custody had been in disregard
of Article 5 (art. 5) and that the punishment imposed on them for having published and distributed
articles deemed to undermine military discipline had contravened Articles 10, 11, 14, 17 and 18
(art. 10, art. 11, art. 14, art. 17, art. 18).

Furthermore, all five applicants claimed compensation.

The applications were declared admissible by the Commission on 17 July 1972 except that the
complaint submitted by Mr. Engel under Article 11 (art. 11) was rejected as being manifestly
ill-founded (Article 27 para. 2) (art. 27-2).

In answer to certain objections made by the respondent Government during the examination of the
merits, the Commission decided on 29 May 1973 not to reject under Article 29 (art. 29) two heads of
complaint raised by Mr. Engel, Mr. Dona and Mr. Schul on 21 June 1972 in support of their
respective applications.

53. In its report of 19 July 1974 the Commission expressed the opinion:

- that the punishments of light arrest objected to by Mr. Engel and Mr. van der Wiel did not amount
to deprivation of liberty within the meaning of Article 5 (art. 5) of the Convention (eleven votes,
with one abstention);

- that the other disciplinary punishments complained of by Mr. Engel, Mr. de Wit, Mr. Dona and Mr.
Schul had infringed Article 5 para. 1 (art. 5-1) since none of the sub-paragraphs of this provision
justified them (conclusion following from a series of votes with various majorities);

- that there had also been violation of Article 5 para. 4 (art. 5-4) in that the appeals by the
four above-mentioned applicants against these same punishments had not been "decided speedily"
(eleven votes, with one abstention);

- that Mr. Engel's provisional arrest under Article 44 of the 1903 Act had, for its part,
contravened Article 5 para. 1 (art. 5-1) since it had exceeded the period specified under Article
45 of the said Act (eleven votes, with one member being absent);

- that Article 6 (art. 6) was not applicable to any of the disciplinary proceedings concerned (ten
votes against one, with one member being absent);

- that in the cases of Mr. Dona and Mr. Schul no breach either of Article 5 (art. 5) of the
Convention in respect of their interim custody (Article 20 of the 1903 Act) or of Articles 10, 11,
17 or 18 (art. 10, art. 11, art. 17, art. 18) of the Convention had been established (such
conclusions following from several votes with various majorities);

- that no violation of Article 14, whether read in conjunction with Articles 5, 6, 10 or 11 (art.
14+5, art. 14+6, art. 14+10, art. 14+11), had occurred in this case (conclusion following from
several votes with various majorities).

The report contains five separate opinions.

AS TO THE LAW

54. As the Government, Commission and applicants concurred in thinking, the Convention applies in
principle to members of the armed forces and not only to civilians. It specifies in Articles 1 and
14 (art. 1, art. 14) that "everyone within (the) jurisdiction" of the Contracting States is to
enjoy "without discrimination" the rights and freedoms set out in Section I. Article 4 para. 3 (b)
(art. 4-3-b), which exempts military service from the prohibition against forced or compulsory
labour, further confirms that as a general rule the guarantees of the Convention extend to
servicemen. The same is true of Article 11 para. 2 (art. 11-2) in fine, which permits the States to
introduce special restrictions on the exercise of the freedoms of assembly and association by
members of the armed forces.

Nevertheless, when interpreting and applying the rules of the Convention in the present case, the
Court must bear in mind the particular characteristics of military life and its effects on the
situation of individual members of the armed forces.

55. Having established these preliminary points, the Court will examine successively, Article by
Article, each of the complaints raised by all or certain of the five applicants.

I. ON THE ALLEGED VIOLATIONS OF ARTICLE 5 (art. 5)

II. ON THE ALLEGED VIOLATIONS OF ARTICLE 6 (art. 6)

A. On the alleged violation of Article 6 (art. 6) taken alone

78. The five applicants allege violation of Article 6 (art. 6) which provides:

"1. In the determination of his civil rights and obligations or of any criminal charge against him,
everyone is entitled to a fair and public hearing within a reasonable time by an independent and
impartial tribunal established by law. Judgment shall be pronounced publicly but the press and
public may be excluded from all or part of the trial in the interests of morals, public order or
national security in a democratic society, where the interests of juveniles or the protection of
the private life of the parties so require, or to the extent strictly necessary in the opinion of
the court in special circumstances where publicity would prejudice the interests of justice.

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty
according to law.

3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and
cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not
sufficient means to pay for legal assistance, to be given it free when the interests of justice so
require;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination
of witnesses on his behalf under the same conditions as witnesses against him;

(e) to have the free assistance of an interpreter if he cannot understand or speak the language
used in court."

79. For both the Government and the Commission, the proceedings brought against Mr. Engel, Mr. van
der Wiel, Mr. de Wit, Mr. Dona and Mr. Schul involved the determination neither of "civil rights
and obligations" nor of "any criminal charge".

Led thus to examine the applicability of Article 6 (art. 6) in the present case, the Court will
first investigate whether the said proceedings concerned "any criminal charge" within the meaning
of this text; for, although disciplinary according to Netherlands law, they had the aim of
repressing through penalties offences alleged against the applicants, an objective analogous to the
general goal of the criminal law.


1. On the applicability of Article 6 (art. 6)

(a) On the existence of "any criminal charge"

80. All the Contracting States make a distinction of long standing, albeit in different forms and
degrees, between disciplinary proceedings and criminal proceedings. For the individuals affected,
the former usually offer substantial advantages in comparison with the latter, for example as
concerns the sentences passed. Disciplinary sentences, in general less severe, do not appear in the
person's criminal record and entail more limited consequences. It may nevertheless be otherwise;
moreover, criminal proceedings are ordinarily accompanied by fuller guarantees.

It must thus be asked whether or not the solution adopted in this connection at the national level
is decisive from the standpoint of the Convention. Does Article 6 (art. 6) cease to be applicable
just because the competent organs of a Contracting State classify as disciplinary an act or
omission and the proceedings it takes against the author, or does it, on the contrary, apply in
certain cases notwithstanding this classification? This problem, the importance of which the
Government acknowledge, was rightly raised by the Commission; it particularly occurs when an act or
omission is treated by the domestic law of the respondent State as a mixed offence, that is both
criminal and disciplinary, and where there thus exists a possibility of opting between, or even
cumulating, criminal proceedings and disciplinary proceedings.

81. The Court has devoted attention to the respective submissions of the applicants, the Government
and the Commission concerning what they termed the "autonomy" of the concept of a "criminal
charge", but does not entirely subscribe to any of these submissions (report of the Commission,
paragraphs 33-34, paragraphs 114-119 and the separate opinion of Mr. Welter; memorial of the
Government, paragraphs 25-34; memorial of the Commission, paragraphs 9-16, paragraphs 14-17 of
Annex I and paragraphs 12-14 of Annex II; verbatim report of the hearings on 28 and 29 October
1975).

In the Neumeister judgment of 27 June 1968, the Court has already held that the word "charge" must
be understood "within the meaning of the Convention" (Series A no. 8, p. 41, para. 18, as compared
with the second sub-paragraph on p. 28 and the first sub-paragraph on p. 35; see also the Wemhoff
judgment of 27 June 1968, Series A no. 7, pp. 26-27, para. 19, and the Ringeisen judgment of 16
July 1971, Series A no. 13, p. 45, para. 110).

The question of the "autonomy" of the concept of "criminal" does not call for exactly the same
reply.

The Convention without any doubt allows the States, in the performance of their function as
guardians of the public interest, to maintain or establish a distinction between criminal law and
disciplinary law, and to draw the dividing line, but only subject to certain conditions. The
Convention leaves the States free to designate as a criminal offence an act or omission not
constituting the normal exercise of one of the rights that it protects. This is made especially
clear by Article 7 (art. 7). Such a choice, which has the effect of rendering applicable Articles 6
and 7 (art. 6, art. 7), in principle escapes supervision by the Court.

The converse choice, for its part, is subject to stricter rules. If the Contracting States were
able at their discretion to classify an offence as disciplinary instead of criminal, or to
prosecute the author of a "mixed" offence on the disciplinary rather than on the criminal plane,
the operation of the fundamental clauses of Articles 6 and 7 (art. 6, art. 7) would be subordinated
to their sovereign will. A latitude extending thus far might lead to results incompatible with the
purpose and object of the Convention. The Court therefore has jurisdiction, under Article 6 (art.
6) and even without reference to Articles 17 and 18 (art. 17, art. 18), to satisfy itself that the
disciplinary does not improperly encroach upon the criminal.

In short, the "autonomy" of the concept of "criminal" operates, as it were, one way only.

82. Hence, the Court must specify, limiting itself to the sphere of military service, how it will
determine whether a given "charge" vested by the State in question - as in the present case - with
a disciplinary character nonetheless counts as "criminal" within the meaning of Article 6 (art. 6).

In this connection, it is first necessary to know whether the provision(s) defining the offence
charged belong, according to the legal system of the respondent State, to criminal law,
disciplinary law or both concurrently. This however provides no more than a starting point. The
indications so afforded have only a formal and relative value and must be examined in the light of
the common denominator of the respective legislation of the various Contracting States.

The very nature of the offence is a factor of greater import. When a serviceman finds himself
accused of an act or omission allegedly contravening a legal rule governing the operation of the
armed forces, the State may in principle employ against him disciplinary law rather than criminal
law. In this respect, the Court expresses its agreement with the Government.

However, supervision by the Court does not stop there. Such supervision would generally prove to be
illusory if it did not also take into consideration the degree of severity of the penalty that the
person concerned risks incurring. In a society subscribing to the rule of law, there belong to the
"criminal" sphere deprivations of liberty liable to be imposed as a punishment, except those which
by their nature, duration or manner of execution cannot be appreciably detrimental. The seriousness
of what is at stake, the traditions of the Contracting States and the importance attached by the
Convention to respect for the physical liberty of the person all require that this should be so
(see, mutatis mutandis, the De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, p.
36, last sub-paragraph, and p. 42 in fine).

83. It is on the basis of these criteria that the Court will ascertain whether some or all of the
applicants were the subject of a "criminal charge" within the meaning of Article 6 para. 1 (art.
6-1).

In the circumstances, the charge capable of being relevant lay in the decision of the commanding
officer as confirmed or reduced by the complaints officer. It was undoubtedly this decision that
settled once and for all what was at stake, since the tribunal called upon to give a ruling, that
is the Supreme Military Court, had no jurisdiction to pronounce a harsher penalty (paragraph 31
above).

84. The offences alleged against Mr. Engel, Mr. van der Wiel, Mr. de Wit, Mr. Dona and Mr. Schul
came within provisions belonging to disciplinary law under Netherlands legislation (the 1903 Act
and Regulations on Military Discipline), although those to be answered for by Mr. Dona and Mr.
Schul (Article 147 of the Military Penal Code), and perhaps even by Mr. Engel and Mr. de Wit
(Articles 96 and 114 of the said Code according to Mr. van der Schans, hearing on 28 October 1975),
also lent themselves to criminal proceedings. Furthermore, all the offences had amounted, in the
view of the military authorities, to contraventions of legal rules governing the operation of the
Netherlands armed forces. From this aspect, the choice of disciplinary action was justified.

85. The maximum penalty that the Supreme Military Court could pronounce consisted in four days'
light arrest for Mr. van der Wiel, two days' strict arrest for Mr. Engel (third punishment) and
three or four months' committal to a disciplinary unit for Mr. de Wit, Mr. Dona and Mr. Schul.

Mr. van der Wiel was therefore liable only to a light punishment not occasioning deprivation of
liberty (paragraph 61 above).

For its part, the penalty involving deprivation of liberty that in theory threatened Mr. Engel was
of too short a duration to belong to the "criminal" law. He ran no risk, moreover, of having to
undergo this penalty at the close of the proceedings instituted by him before the Supreme Military
Court on 7 April 1971, since he had already served it from 20 to 22 March (paragraphs 34-36, 63 and
66 above).

On the other hand, the "charges" against Mr. de Wit, Mr. Dona and Mr. Schul did indeed come within
the "criminal" sphere since their aim was the imposition of serious punishments involving
deprivation of liberty (paragraph 64 above). The Supreme Military Court no doubt sentenced Mr. de
Wit to twelve days' aggravated arrest only, that is to say, to a penalty not occasioning
deprivation of liberty (paragraph 62 above), but the final outcome of the appeal cannot diminish
the importance of what was initially at stake.

The Convention certainly did not compel the competent authorities to prosecute Mr. de Wit, Mr. Dona
and Mr. Schul under the Military Penal Code before a court martial (paragraph 14 above), a solution
which could have proved less advantageous for the applicants. The Convention did however oblige the
authorities to afford them the guarantees of Article 6 (art. 6).

(b) On the existence of a "determination" of "civil rights"

86. Three of the five applicants allege, in the alternative, that the proceedings instituted
against them concerned the "determination" of "civil rights": Mr. Engel characterises as "civil"
his freedom of assembly and association (Article 11) (art. 11), Mr. Dona and Mr. Schul their
freedom of expression (Article 10) (art. 10).

87. Article 6 (art. 6) proves less exacting for the determination of such rights than for the
determination of "criminal charges"; for, while paragraph 1 (art. 6-1) applies to both matters,
paragraphs 2 and 3 (art. 6-2, art. 6-3) protect only persons "charged with a criminal offence".
Since Mr. Dona and Mr. Schul were the subject of "criminal charges" (paragraph 85 in fine above),
Article 6 (art. 6) applied to them in its entirety. The Court considers it superfluous to see
whether paragraph 1 (art. 6-1) was relevant on a second ground, since the question is devoid of any
practical interest.

As for Mr. Engel, who had not been "charged with a criminal offence" (paragraph 85 above, third
sub-paragraph), the proceedings brought against him were occasioned solely by offences against
military discipline, namely having absented himself from his home on 17 March 1971 and subsequently
having disregarded the penalties imposed on him on the following two days. In these circumstances,
there is no need to give any ruling in the present case as to whether the freedom of assembly and
association is "civil".

88. In short, it is the duty of the Court to examine under Article 6 (art. 6) the treatment meted
out to Mr. de Wit, Mr. Dona and Mr. Schul, but not that complained of by Mr. Engel and Mr. van der
Wiel.

2. On compliance with Article 6 (art. 6)

89. The Supreme Military Court, before which appeared Mr. de Wit, Mr. Dona and Mr. Schul,
constitutes an "independent and impartial tribunal established by law" (paragraphs 30 and 68 above)
and there is nothing to indicate that it failed to give them a "fair hearing". For its part, the
"time" that elapsed between the "charge" and the final decision appears "reasonable". It did not
amount to six weeks for Mr. Dona and Mr. Schul (8 October - 17 November 1971) and hardly exceeded
two months for Mr. de Wit (22 February - 28 April 1971). Furthermore, the sentence was "pronounced
publicly".

In contrast, the hearings in the presence of the parties had taken place in camera in accordance
with the established practice of the Supreme Military Court in disciplinary proceedings (paragraph
31 above). In point of fact, the applicants do not seem to have suffered on that account; indeed
the said Court improved the lot of two of their number, namely Mr. Schul and, to an even greater
extent, Mr. de Wit. Nevertheless, in the field it governs Article 6 para. 1 (art. 6-1) requires in
a very general fashion that judicial proceedings be conducted in public. Article 6 (art. 6) of
course makes provision for exceptions which it lists, but the Government did not plead, and it does
not emerge from the file, that the circumstances of the case amounted to one of the occasions when
the Article allows "the press and the public (to be) excluded". Hence, on this particular point,
there has been violation of paragraph 1 of Article 6 (art. 6-1).

90. Mr. Dona and Mr. Schul complain that the Supreme Military Court took account of their
participation in the publication, prior to no. 8 of "Alarm", of two writings whose distribution had
only been provisionally forbidden under the "Distribution of Writings Decree" and for which they
had never been prosecuted (paragraph 49 above). The Supreme Military Court, it is alleged, thereby
disregarded the presumption of innocence proclaimed by paragraph 2 of Article 6 (art. 6-2) (report
of the Commission, paragraph 45, antepenultimate sub-paragraph).

In reality, this clause does not have the scope ascribed to it by the two applicants. As its
wording shows, it deals only with the proof of guilt and not with the kind or level of punishment.
It thus does not prevent the national judge, when deciding upon the penalty to impose on an accused
lawfully convicted of the offence submitted to his adjudication, from having regard to factors
relating to the individual's personality.

Before the Supreme Military Court Mr. Dona and Mr. Schul were "proved guilty according to law" as
concerns the offences there alleged against them (no. 8 of "Alarm"). It was for the sole purpose of
determining their punishment in the light of their character and previous record that the said
Court also took into consideration certain similar, established facts the truth of which they did
not challenge. The Court did not punish them for these facts in themselves (Article 37 of the 1903
Act and the memorial filed by the Government with the Commission on 24 August 1973).

91. Mr. de Wit, Mr. Dona and Mr. Schul do not deny that sub-paragraph (a) of paragraph 3 of Article
6 (art. 6-3-a) has been complied with in their regard and they are evidently not relying upon
sub-paragraph (e) (art. 6-3-e). On the other hand, they claim not to have enjoyed the guarantees
prescribed by sub-paragraphs (b), (c) and (d) (art. 6-3-b, art. 6-3-c, art. 6-3-d).

Their allegations, however, prove far too vague to lead the Court to conclude that they did not
"have adequate time and facilities for the preparation of (their) defence" within the meaning of
sub-paragraph (b) (art. 6-3-b).

Then again, each of the three applicants has had the opportunity "to defend himself in person" at
the various stages of the proceedings. They have furthermore received the benefit before the
Supreme Military Court and, in Mr. de Wit's case, before the complaints officer, of "legal
assistance of (their) own choosing", in the form of a fellow conscript who was a lawyer in civil
life. Mr. Eggenkamp's services were, it is true, limited to dealing with the legal issues in
dispute. In the circumstances of the case, this restriction could nonetheless be reconciled with
the interests of justice since the applicants were certainly not incapable of personally providing
explanations on the very simple facts of the charges levelled against them. Consequently, no
interference with the right protected by sub-paragraph (c) (art. 6-3-c) emerges from the file in
this case.

Neither does the information obtained by the Court, in particular on the occasion of the hearings
on 28 and 29 October 1975, disclose any breach of sub-paragraph (d) (art. 6-3-d). Notwithstanding
the contrary opinion of the applicants, this provision does not require the attendance and
examination of every witness on the accused's behalf. Its essential aim, as is indicated by the
words "under the same conditions", is a full "equality of arms" in the matter. With this proviso,
it leaves it to the competent national authorities to decide upon the relevance of proposed
evidence insofar as is compatible with the concept of a fair trial which dominates the whole of
Article 6 (art. 6). Article 65 of the 1903 Act and Article 56 of the "Provisional Instructions" of
20 July 1814 place the prosecution and the defence on an equal footing: witnesses for either party
are summoned only if the complaints officer or the Supreme Military Court deems it necessary. As
concerns the way in which this legislation was applied in the present case, the Court notes that no
hearing of witnesses against the accused occurred before the Supreme Military Court in the case of
Mr. de Wit, Mr. Dona and Mr. Schul and that it does not appear from the file in the case that these
applicants requested the said Court to hear witnesses on their behalf. Doubtless Mr. de Wit objects
that the complaints officer heard only one of the three witnesses on his behalf allegedly proposed
by him, but this fact in itself cannot justify the finding of a breach of Article 6 para. 3 (d)
(art. 6-3-d).

B. On the alleged violation of Articles 6 and 14 (art. 14+6) taken together

92. According to the applicants, the disciplinary proceedings of which they complain did not comply
with Articles 6 and 14 (art. 14+6) taken together since they were not attended by as many
guarantees as criminal proceedings brought against civilians (report of the Commission, paragraph
37).

Whilst military disciplinary procedure is not attended by the same guarantees as criminal
proceedings brought against civilians, it offers on the other hand substantial advantages to those
subject to it (paragraph 80 above). The distinctions between these two types of proceedings in the
legislation of the Contracting States are explicable by the differences between the conditions of
military and of civil life. They cannot be taken as entailing a discrimination against members of
the armed forces, within the meaning of Articles 6 and 14 (art. 14+6) taken together.

C. On the alleged violation of Articles 6 and 18 (art. 18+6) taken together

93. According to Mr. Dona and Mr. Schul, the decision to take disciplinary rather than criminal
proceedings against them had the result, or even the aim, of depriving them of the benefit of
Article 6 (art. 6). The choice made by the competent authorities allegedly had an arbitrary nature
that cannot be reconciled with Article 18 (art. 18) (report of the Commission, paragraph 53).

The Court's conclusions on the applicability and observance of Article 6 (art. 6) in the case of
these two applicants (paragraphs 85 and 89-91 above) make it unnecessary for it to rule on this
complaint.

III. ON THE ALLEGED VIOLATIONS OF ARTICLE 10 (art. 10)

A. On the alleged violation of Article 10 (art. 10) taken alone

94. Mr. Dona and Mr. Schul allege violation of Article 10 (art. 10) which provides:

"1. Everyone has the right to freedom of expression. This right shall include freedom to hold
opinions and to receive and impart information and ideas without interference by public authority
and regardless of frontiers. This Article (art. 10) shall not prevent States from requiring the
licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be
subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are
necessary in a democratic society, in the interests of national security, territorial integrity or
public safety, for the prevention of disorder or crime, for the protection of health or morals, for
the protection of the reputation or rights of others, for preventing the disclosure of information
received in confidence, or for maintaining the authority and impartiality of the judiciary."

The complaint, as declared admissible by the Commission, concerns solely the disciplinary
punishment undergone by the applicants after 17 November 1971 for having collaborated in the
publication and distribution of no. 8 of "Alarm". It does not relate to the prohibition under the
"Distribution of Writings Decree" of this number, of no. 6 of "Alarm" and of the "Information
Bulletin" for new recruits nor to the strict arrest imposed on the applicants on 13 August 1971 for
their participation in distributing a pamphlet during the incidents at Ermelo (paragraphs 43-45
above).

95. The disputed penalty unquestionably represented an "interference" with the exercise of the
freedom of expression of Mr. Dona and Mr. Schul, as guaranteed by paragraph 1 of Article 10 (art.
10-1). Consequently, an examination under paragraph 2 (art. 10-2) is called for.

96. The penalty was without any doubt "prescribed by law", that is by Articles 2 para. 2, 5-A-8^o,
18, 19 and 37 of the 1903 Act, read in conjunction with the Article 147 of the Military Penal Code.
Even in regard to the part played by the accused in the editing and distribution, prior to no. 8 of
"Alarm", of writings prohibited by the military authorities, the punishment was based on the 1903
Act (paragraph 90 above) and not on the "Distribution of Writings Decree". The Court thus does not
have to consider the applicants' submissions on the validity of this decree (report of the
Commission, paragraph 45, fifth sub-paragraph).

97. To show that the interference at issue also met the other conditions of paragraph 2 of Article
10 (art. 10-2), the Government pleaded that the measures taken in this case were "necessary in a
democratic society", "for the prevention of disorder". They relied on Article 10 para. 2 (art.
10-2) only with reference to this requirement.

98. The Court firstly emphasises, like the Government and the Commission that the concept of
"order" as envisaged by this provision, refers not only to public order or "ordre public" within
the meaning of Articles 6 para. 1 and 9 para. 2 (art. 6-1, art. 9-2) of the Convention and Article
2 para. 3 of Protocol no. 4 (P4-2-3): it also covers the order that must prevail within the
confines of a specific social group. This is so, for example, when, as in the case of the armed
forces, disorder in that group can have repercussions on order in society as a whole. It follows
that the disputed penalties met this condition if and to the extent that their purpose was the
prevention of disorder within the Netherlands armed forces.

Mr. Dona and Mr. Schul admittedly maintain that Article 10 para. 2 (art. 10-2) takes account of the
"prevention of disorder" only in combination with the "prevention of crime". The Court does not
share this view. While the French version uses the conjunctive "et", the English employs the
disjunctive "or". Having regard to the context and the general system of Article 10 (art. 10), the
English version provides a surer guide on this point. Under these conditions, the Court deems it
unnecessary to examine whether the applicants' treatment was aimed at the "prevention of crime" in
addition to the "prevention of disorder".

99. It remains to be seen whether the interference with the freedom of expression of Mr. Dona and
Mr. Schul was "necessary in a democratic society", "for the prevention of disorder".

100. Of course, the freedom of expression guaranteed by Article 10 (art. 10) applies to servicemen
just as it does to other persons within the jurisdiction of the Contracting States. However, the
proper functioning of an army is hardly imaginable without legal rules designed to prevent
servicemen from undermining military discipline, for example by writings. Article 147 of the
Netherlands Military Penal Code (paragraph 43 above) is based on this legitimate requirement and
does not in itself run counter to Article 10 (art. 10) of the Convention.

The Court doubtless has jurisdiction to supervise, under the Convention, the manner in which the
domestic law of the Netherlands has been applied in the present case, but it must not in this
respect disregard either the particular characteristics of military life (paragraph 54 in fine
above), the specific "duties" and "responsibilities" incumbent on members of the armed forces, or
the margin of appreciation that Article 10 para. 2 (art. 10-2), like Article 8 para. 2 (art. 8-2),
leaves to the Contracting States (De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no.
12, p. 45, para. 93, and Golder judgment of 21 February 1975, Series A no. 18, p. 22).

101. The Court notes that the applicants contributed, at a time when the atmosphere in the barracks
at Ermelo was somewhat strained, to the publication and distribution of a writing the relevant
extracts from which are reproduced above (paragraphs 43 and 51 above). In these circumstances the
Supreme Military Court may have had well-founded reasons for considering that they had attempted to
undermine military discipline and that it was necessary for the prevention of disorder to impose
the penalty inflicted. There was thus no question of depriving them of their freedom of expression
but only of punishing the abusive exercise of that freedom on their part. Consequently, it does not
appear that its decision infringed Article 10 para. 2 (art. 10-2).

B. On the alleged violation of Articles 10 and 14 (art. 14+10) taken together

102. Mr. Dona and Mr. Schul allege a dual breach of Articles 10 and 14 (art. 14+10) taken together.
They stress that a civilian in the Netherlands in a comparable situation does not risk the
slightest penalty. In addition, they claim to have been punished more severely than a number of
Netherlands servicemen, not belonging to the V.V.D.M., who had also been prosecuted for writing or
distributing material likely to undermine military discipline.

103. On the first question, the Court emphasises that the distinction at issue is explicable by the
differences between the conditions of military and of civil life and, more specifically, by the
"duties" and "responsibilities" peculiar to members of the armed forces in the field of freedom of
expression (paragraphs 54 and 100 above). On the second question, the Court points out that in
principle it is not its function to compare different decisions of national courts, even if given
in apparently similar proceedings; it must, just like the Contracting States, respect the
independence of those courts. Such a decision would actually become discriminatory in character if
it were to depart from others to the point of constituting a denial of justice or a manifest abuse,
but the information supplied to the Court does not permit a finding of this sort.

C. On the alleged violation of Article 10 taken with Articles 17 and 18 (art. 17+10, art. 18+10)

104. Mr. Dona and Mr. Schul further claim that, contrary to Articles 17 and 18 (art. 17, art. 18),
the exercise of their freedom of expression was subject to "limitation to a greater extent than is
provided for" in Article 10 (art. 10) and for a "purpose" not mentioned therein.

This complaint does not support examination since the Court has already concluded that the said
limitation was justified under paragraph 2 of Article 10 (art. 10-2) (paragraphs 96-101 above).

IV. ON THE ALLEGED VIOLATION OF ARTICLE 11 (art. 11)

105. According to Mr. Dona and Mr. Schul, after their cases, many conscripts who were members of
the V.V.D.M. incurred penalties for having written and/or distributed publications tending to
undermine discipline, within the meaning of Article 147 of the Military Penal Code. In their
submission, these were systematic measures calculated to impede the functioning of the V.V.D.M.,
thereby infringing Article 11 (art. 11) of the Convention which provides:

"1. Everyone has the right to freedom of peaceful assembly and to freedom of association with
others, including the right to form and to join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are
prescribed by law and are necessary in a democratic society in the interests of national security
or public safety, for the prevention of disorder or crime, for the protection of health or morals
or for the protection of the rights and freedoms of others. This Article shall not prevent the
imposition of lawful restrictions on the exercise of these rights by members of the armed forces,
of the police or of the administration of the State."

106. The Court may take into consideration only the case of the two applicants and not the
situation of other persons or of an association not having authorised them to lodge an application
with the Commission in their name (De Becker judgment of 27 March 1962, Series A no. 4, p. 26 in
fine, and Golder judgment of 21 February 1975, Series A no. 18, p. 19, para. 39 in fine).

107. Insofar as Mr. Dona and Mr. Schul rely also upon their own freedom of association, the Court
finds that they were not punished by reason either of their membership of the V.V.D.M. or of their
participation in its activities, including preparation and publication of the journal "Alarm".
While the Supreme Military Court punished them, it was only because it considered that they had
made use of their freedom of expression with a view to undermining military discipline.

108. In view of the absence of any interference with the right of the two applicants under
paragraph 1 of Article 11 (art. 11-1), the Court does not have to consider paragraph 2 (art. 11-2),
or Articles 14, 17 and 18 (art. 14, art. 17, art. 18).

V. ON THE APPLICATION OF ARTICLE 50 (art. 50)

109. Under Article 50 (art. 50) of the Convention, if the Court finds "that a decision or measure
taken" by any authority of a Contracting State "is completely or partially in conflict with the
obligations arising from the ... Convention, and if the internal law of the said (State) allows
only partial reparation to be made for the consequences of this decision or measure", the Court
"shall if necessary afford just satisfaction to the injured party".

The Rules of Court specify that when the Court "finds that there is a breach of the Convention, it
shall give in the same judgment a decision on the application of Article 50 (art. 50) of the
Convention if that question, after being raised under Rule 47 bis, is ready for decision; if the
question is not ready for decision, the Court shall reserve it in whole or in part and shall fix
the further procedure" (Rule 50 para. 3, first sentence, read in conjunction with Rule 48 para. 3).

110. At the hearing on 29 October 1975, the Court, pursuant to Rule 47 bis, invited those appearing
before it to present observations on the question of the application of Article 50 (art. 50) in the
present case.

It emerges from the reply of the Commission's principal delegate that the applicants make no claim
for compensation for material damage. However, they expect to be granted just satisfaction should
the Court find failure to comply with the requirements of the Convention in one or more instances,
but they do not for the moment indicate the amount of their claim were such satisfaction to take
the form of financial compensation.

On their side the Government, through their Agent, declared that they left this point completely to
the discretion of the Court.

111. The question of the application of Article 50 (art. 50) of the Convention does not arise in
the case of Mr. van der Wiel, or for those complaints of Mr. Engel, Mr. de Wit, Mr. Dona and Mr.
Schul which the Court has not retained. On the other hand, it does arise for the breach of Article
5 para. 1 (art. 5-1) in the case of Mr. Engel and of Article 6 para. 1 (art. 6-1) in that of Mr. de
Wit, Mr. Dona and Mr. Schul (paragraphs 69 and 89 above). The information supplied by the
Commission's principal delegate shows however that the question is not ready for decision; it is
therefore appropriate to reserve the question and to fix the further procedure in connection
therewith.

FOR THESE REASONS, THE COURT,

1. Holds, unanimously, that Article 5 (art. 5) was not applicable to the light arrest of Mr. Engel
(second punishment) and of Mr. van der Wiel;


2. Holds, by twelve votes to one, that it was also not applicable to the aggravated arrest of Mr.
de Wit, or to the interim aggravated arrest of Mr. Dona and Mr. Schul;


3. Holds, by eleven votes to two, that the committal of Mr. Dona and Mr. Schul to a disciplinary
unit did not violate Article 5 para. 1 (art. 5-1);


4. Holds, by nine votes to four, that the whole period of Mr. Engel's provisional strict arrest
violated Article 5 para. 1 (art. 5-1), since no justification is to be found for it in any
sub-paragraph of this provision;


5. Holds, by ten votes to three, that apart from that it violated Article 5 para. 1 (art. 5-1)
insofar as it exceeded the period of twenty-four hours stipulated by Article 45 of the Netherlands
Military Discipline Act of 27 April 1903;


6. Holds, unanimously, that the committal of Mr. Dona and Mr. Schul to a disciplinary unit and Mr.
Engel's provisional arrest did not violate Articles 5 para. 1 and 14 (art. 14+5-1) taken together;


7. Holds, by twelve votes to one, that there has been no breach of Article 5 para. 4 (art. 5-4) as
regards the committal of Mr. Dona and Mr. Schul to a disciplinary unit;


8. Holds, by eleven votes to two, that Article 6 (art. 6) was not applicable to Mr. Engel on the
ground of the words "criminal charge";


9. Holds, unanimously, that it was also not applicable to this applicant on the ground of the words
"civil rights and obligations";


10. Holds, unanimously, that neither was it applicable to Mr. van der Wiel;


11. Holds, by eleven votes to two, that there was a breach of Article 6 para. 1 (art. 6-1) in the
case of Mr. de Wit, Mr. Dona and Mr. Schul insofar as hearings before the Supreme Military Court
took place in camera;


12. Holds, unanimously, that there was no breach of Article 6 para. 2 (art. 6-2) in the case of Mr.
Dona and Mr. Schul;


13. Holds, unanimously, that there was no breach of Article 6 para. 3 (b) (art. 6-3-b) in the case
of Mr. de Wit, Mr. Dona and Mr. Schul;


14. Holds, by nine votes to four, that there was no breach of Article 6 para. 3 (c) (art. 6-3-c) in
the case of these three applicants;


15. Holds, by nine votes to four, that there was no breach of Article 6 para. 3 (d) (art. 6-3-d) in
the case of Mr. de Wit;


16. Holds, by twelve votes to one, that there was no breach of Article 6 para. 3 (d) (art. 6-3-d)
in the case of Mr. Dona and Mr. Schul;


17. Holds, unanimously, that there was no breach of Articles 6 and 14 (art. 14+6) taken together in
the case of Mr. de Wit, Mr. Dona and Mr. Schul;


18. Holds, unanimously, that there is no need to rule on the complaint based by Mr. Dona and Mr.
Schul on the alleged violation of Articles 6 and 18 (art. 18+6) taken together;


19. Holds, unanimously, that there was no breach of Article 10 (art. 10) taken alone or together
with Articles 14, 17 or 18 (art. 14+10, art. 17+10, art. 18+10) in the case of Mr. Dona and Mr.
Schul;


20. Holds, unanimously, that there was no breach of Article 11 (art. 11) in the case of Mr. Dona
and Mr. Schul;


21. Holds, unanimously, that the question of the application of Article 50 (art. 50) does not arise
in the case of Mr. van der Wiel, or for those of the complaints of Mr. Engel, Mr. de Wit, Mr. Dona
and Mr. Schul which the Court has not herein retained (items 1 to 3, 6 to 10 and 12 to 20 above);


22. Holds, by twelve votes to one, that the question is not yet ready for decision as regards the
breaches found in the case of Mr. Engel (Article 5 para. 1, items 4 and 5 above) (art. 5-1) and in
the case of Mr. de Wit, Mr. Dona and Mr. Schul (Article 6 para. 1, item 11 above) (art. 6-1);


Accordingly,

(a) reserves the whole of the question of the application of Article 50 (art. 50) as it arises for
these four applicants;

(b) invites the Commission's delegates to present in writing, within one month from the delivery of
this judgment, their observations on the said question;

(c) decides that the Government shall have the right to reply in writing to those observations
within a month from the date on which the Registrar shall have communicated them to the Government;

(d) reserves the further procedure to be followed on this aspect of the case.


Done in French and English, the French text being authentic, at the Human Rights Building,
Strasbourg, this eighth day of June, one thousand nine hundred and seventy-six.


                                                                                     Hermann MOSLER

                                                                                          President


Marc-André EISSEN

Registrar

The separate opinions of the following Judges are annexed to the present judgment in accordance
with Article 51 para. 2 (art. 51-2) of the Convention and Rule 50 para. 2 of the Rules of Court.

Mr. Verdross; Mr. Zekia; Mr. Cremona; Mr. O'Donoghue and Mrs. Pedersen; Mr. Vilhjálmsson; Mrs.
Bindschedler-Robert; Mr. Evrigenis.