Europäischer Gerichtshof für Menschenrechte
Cour européenne des droits de l'homme
Corte europea dei diritti dell'uomo
European Court of Human Rights


AS TO THE ADMISSIBILITY OF

Application No. 17571/90

by Michele BORRELLI

against Switzerland

The European Commission of Human Rights sitting in private on
2 September 1993, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

A. WEITZEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

Mrs. G.H. THUNE

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

N. BRATZA

Mr. M. de SALVIA, Deputy Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 5 November 1990
by Michele Borrelli against Switzerland and registered on 18 December
1990 under file No. 17571/90;

Having regard to:

- the report provided for in Rule 47 of the Rules of Procedure of
the Commission;

- the observations submitted by the respondent Government on
21 January 1993 and the observations in reply submitted by the
applicant on 18 March 1993;

- the submissions of the parties at the hearing of 2 September
1993;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as submitted by the parties, may be

summarised as follows:

The applicant, a Swiss citizen born in 1957, is a trustee

administrator (Treuhänder) residing in Zurich. Before the Commission
he is represented by Mr. L.A. Minelli, a lawyer practising at Forch in
Switzerland.

PARTICULAR CIRCUMSTANCES OF THE CASE

I.

The applicant was carrying out a military repetition course

(Wiederholungskurs) during which he undertook guard duties at Landquart
in Switzerland from 17 to 18 October 1989. While on guard duty he was
placed on 18 October after 14h00 on alert duty (Pikettdienst); as such
he was only permitted to leave the guard building on service orders of
the head of guard.

On 18 October 1989 at 16h05 the applicant was seen walking,

without gun or helmet, by officer S. to the Landquart village centre.
When questioned, the applicant informed S. that he was on his way to
the hairdresser. S. reported the incident to the applicant's company
whereupon proceedings were instituted against the applicant.
On 19 October 1989 Captain L., the company commander, questioned
the applicant. The latter submitted that he had undertaken 22 hours
of guard duty and was then having a pause. He referred to the guard
order (Wachtbefehl) which permitted soldiers on guard to take care of
personal hygiene (Körperpflege). He stated that in his view this
included the right to go to the hairdresser. The applicant pointed out
that he had not undertaken guard duty since 1981, and that he thought
that he had complied with his duties. If he was to be punished, he
would request an admonition (Verweis). He had acted in good faith.
On 20 October 1990 Captain L. questioned Lance Corporal E. who
had acted as head of guard on 18 October 1990. E. could not understand
how anybody could go to the hairdresser during guard, since soldiers
on alert duty had to be ready within two minutes if needed. The
minutes of this questioning were then shown to the applicant.
By disciplinary criminal order (Disziplinarstrafverfügung) of
20 October 1989, signed by Major M., the battalion commander, the
applicant was punished (Strafe) with five days strict arrest (scharfer
Arrest). The order stated that the guard building could not be left
for reasons of personal hygiene. While the applicant's culpability was
slight (leichtes Verschulden), offences on guard duty weighed
particularly severe according to Section 275 para. 1 of the Service
Regulations (Dienstreglement; see below Relevant domestic law and
practice). The order stated as motives for the offence the applicant's
"carelessness" ("Nachlässigkeit"), "laziness" ("Bequemlichkeit") and
his reprehensible attitude. His conduct was described as "correct"
("anständig") and "good in his subject matter" ("fachlich gut").
II.

The disciplinary criminal order was served on the applicant on
20 October 1989 at 21h45. On the same day at 24h00 the applicant
submitted an appeal against the order.

In his appeal the applicant submitted inter alia that he could
not understand the grounds of "carelessness" and "laziness"; these
grounds did not transpire from the file, and he had not been questioned
in this respect. These grounds also contradicted the description of
the applicant's conduct. In fact, by going to the hairdresser he had
complied with Section 573 of the Service Regulations.

On 23 October 1989 Colonel F., the regiment commander, dismissed
the appeal. The decision recalled the guard order and considered that
the applicant's culpability weighed particularly severe. It noted that
a slight case within the meaning of Section 303 b) of the Service
Regulations was at issue, and it considered that the gravity of the
culpability (Schwere des Verschuldens) called for a severe punishment.
The applicant's personal circumstances did not directly affect the
proceedings. His conduct during service was a mitigating factor. On
the whole five days strict arrest did not appear arbitrary.

III.

Colonel F's decision was served on the applicant on 23 October
1989 at 19h30. On 25 October 1989 the applicant filed a disciplinary
court appeal (Disziplinargerichtsbeschwerde).

In his appeal the applicant disputed that he had put his own
interests first and that he had acted culpably, since a tidy hair cut
lay in the army's interest. Insofar as the contested decision referred
to his culpability, his motives, the personal circumstances, and his
conduct in service there were not documents enabling such an
assessment. The applicant had not been questioned in this respect.
The trial (Hauptverhandlung) took place before the Military Court
of Appeal 2B on 6 February 1990. The applicant and his lawyer were
present. The applicant explained inter alia that he had told the head
of guard, Lance Corporal E., that he was going to the hairdresser and
had received his permission. The applicant further complained that he
had not been able to consult the case-file. Captain L. had come to him
while he was standing under the shower. After the applicant had been
ordered to dry himself, he was told in another room about the offence.
He had not been able to take any notes. The applicant also explained
that on 16 October 1989 at midnight a course was given on guard duty,
though all soldiers nodded off (eingenickt), including the applicant.
When commencing guard duty on 17 October 1989 nothing had been said
about alert duty.

The Military Court of Appeal then questioned Captain L. It

transpires from the minutes that certain questions of the applicant
were not admitted, or rephrased, by the presiding judge. L. recalled
that he had questioned Lance Corporal E. after the applicant, and that
the latter was able to consult all documents. When interrogated, the
applicant had said nothing about E. agreeing to his going to the
hairdresser. L. recalled that he had not informed the applicant of his
right to remain silent. The applicant had had the possibility to
comment on E.'s statement, though L. no longer remembered whether this
was stated in the minutes of the interrogation. He, L., had not put
the applicant under pressure when filing his disciplinary court appeal.
The Military Court of Appeal then granted the applicant's request
and adjourned the trial in order to question further witnesses.
On 15 March 1990 the applicant complained to the Court that on
6 February 1990 it had not sat publicly. Thus, when a journalist had
left the room, the President had instructed the court usher no longer
to let the public in and the journalist was unable to return. This
contradicted Article 6 of the Convention as well as Section 48 of the
Military Code of Criminal Procedure (Militärstrafprozessrecht).
IV.

The trial was resumed before the Military Court of Appeal on 6
June 1990. Following the hearing the Court pronounced on 6 June 1990
its decision (Entscheid) in which it dismissed the appeal and ordered
execution of the disciplinary punishment of five days severe arrest.
In its decision the Court first dealt with the applicant's

objections. Insofar as he complained that the trial had not been
conducted publicly, the Court found that the presiding judge had the
right to stop the constant coming and going during a trial. It could
not be said in view thereof, or of other decisions concerning the
taking of evidence, that the presiding judge was biased.

The Court considered that the case concerned disciplinary

proceedings and did not amount to the determination of a criminal
charge within the meaning of Article 6 of the Convention. Thus, the
punishment of arrest did not bring about "serious disadvantages" for
the applicant: he continued to receive pay, and after the second day
of arrest he had a daily walk of one hour. He could contact his
lawyer, and receive mail, albeit on a reduced level.

The Court found that in any event the complaints under Article 6
of the Convention were unfounded. Article 6 did not imply a duty to
inform the accused of his right to consult a lawyer, or to remain
silent. In fact, the applicant's conduct during the appeal proceedings
disclosed that he was able to employ his rights.

In the Court's opinion, it did not breach Article 6

subpara. 3 (b) if the applicant, after having been served the appeal
decision, was told that he would be placed in arrest if he did not
decide, even before the time-limit of three days expired, whether he
would file a disciplinary court appeal. The Court considered that the
"immediate execution of the arrest did not reduce defence rights"
("bewirkt der sofortige Strafantritt keine Reduktion der

Verteidigungsrechte"), since a plain written appeal statement sufficed;
any formal shortcomings could be ameliorated later. The Court found
that "during detention the accused can consider in peace whether he
wants to file an appeal, or withdraw an appeal which he has already
filed" ("während des Arrestvollzuges kann der Angeklagte in Ruhe
überlegen, ob er Beschwerde erheben oder eine erhobene Beschwerde
wiederum zuruckziehen will"). Finally, Article 6 subpara. 3 (b) did
not grant the accused the right to use a typewriter in a separate room
when filing an appeal.

With regard to the applicant's legal representation the Court
recalled Section 333 para. 3 of the Service Regulations according to
which private representation was possible in the disciplinary
proceedings, though the applicant had to appear in person, and the
lawyer was excluded from the first interrogation. It sufficed if the
punished person could be advised by a lawyer during the disciplinary
appeal proceedings and disciplinary court appeal proceedings.
Under Article 6 subpara. 3 (d) of the Convention the Court found
that no right was granted to question witnesses in disciplinary appeal
proceedings. The first hearing of witness E., the head guard, had thus
taken place before the Military Court of Appeal, and the applicant had
had the possibility to question him.

The Court then dealt with the merits of the applicant's appeal.
It noted inter alia that if the applicant now stated that he had
received the permission from E. to go to the hairdresser, in earlier
statements, for instance on 20 October 1989, he had not referred to
this permission. On the other hand, E. contested having been asked for
permission, and his statement was confirmed by other witnesses. E.'s
testimony appeared credible. The Court concluded that "the applicant
was thus to be found guilty of a violation of Section 76 para. 1 (2)
of the Military Criminal Code" ("der Beschwerdeführer ist daher der
Verletzung von Art. 76 Ziff. 1 Abs.2 MStG schuldig zu sprechen").
The Court further considered that the applicant's military

superiors had correctly assumed that the applicant's offence
constituted a slight case within the meaning of Section 76 para. 2 of
the Military Criminal Code, warranting disciplinary punishment. After
considering all circumstances the Court found that a disciplinary
punishment of five days strict arrest appeared adequate.

The applicant served his detention from 10 to 15 September 1990
at the Zurich-Reppischtal military barracks.

RELEVANT DOMESTIC LAW AND PRACTICE

I. Military Criminal Code

Section 76 para. 1 of the Military Criminal Code states:

Translation

"1. Whoever culpably or negligently renders himself unable

to comply with his service duties as guard,

whoever deserts his guard post on his own accord or in any other
way breaches the regulations on guard duty,

will be punished with imprisonment.

2. In slight cases there shall be disciplinary punishment.

..."

German

"1. Wer sich vorsätzlich oder fahrlässig ausserstand setzt,

seine Dienstpflichten als Wache zu erfüllen,

wer eigenmächtig seinen Wachtposten verlässt oder sonst den

Vorschriften über den Wachtdienst zuwiderhandelt,

wird mit Gefängnis bestraft.

2. In leichten Fällen erfolgt disziplinarische Bestrafung.

..."

Section 275 para. 1 of the Service Regulations states:

Translation

"1. Guard duty will ensure the security of the troops,

accommodation, installations, ammunition and material. It sets
high requirements and demands a thorough instruction. Guard

offences weigh particularly severe.

..."

German:

"1. Der Wachtdienst hat die Sicherheit von Truppe, Unterkunft,
Einrichtungen, Munition und Material zu gewährleisten. Er stellt
hohe Anforderungen und verlangt eine gründliche Ausbildung.

Wachtvergehen wiegen besonders schwer.

..."

Section 186 of the Military Criminal Code states that the

duration of strict arrest will last at least three days and at the most
20 days. Detention is served in isolation. According to Section 197
et seq. the Company Commander may order severe arrest lasting up to
three days and the Battalion Commander up to ten days; Sections 199 et
seq. envisage higher officers ordering longer periods up to 20 days.
If a disciplinary appeal is filed against the punishment order, the
punishment may not be aggravated upon appeal (Section 345 of the
Service Regulations).

Section 213 para. 5 of the Military Criminal Code provides that
the decision of the Military Court of Appeal deciding on disciplinary
sanctions will be final.

According to Section 48 of the Military Code of Criminal

Procedure the proceedings before military courts are public, though the
Court may exclude the public inter alia in the interests of order.
II. Service Regulations

Section 303 of the Service Regulations defines disciplinary

faults (Disziplinarfehler) inter alia as "slight cases of criminal
offences in respect of which the Military Criminal Code envisages the
possibility of disciplinary punishment" ("leichte Fälle von

Straftatbeständen, für die das Militärstrafgesetz die Möglichkeit der
disziplinarischen Bestrafung vorsieht").

According to Section 315 of the Service Regulations the arrest
will be executed immediately after the punishment has been pronounced.
The execution will be interrupted, or adjourned, if a disciplinary
appeal or a disciplinary court appeal is filed. If the arrest cannot
be executed before the applicant is released from military service,
another military troops or the Cantonal Military Authority will be
authorised to execute the arrest.

According to Section 349 the time-limit for filing a disciplinary
court appeal is three days.

In respect of disciplinary proceedings Section 333 of the Service
Regulations, which concerns the defence rights of the accused, states:
Translation

"1. The accused must be heard on record.

2. At the beginning of the interrogation the accused must be
told the offence laid against him, and he must be granted the
possibility before the criminal order is issued to consult the
case-file and to explain his conduct.

3. The accused cannot let himself be represented."

German

1. Der Beschuldigte ist zu Protokoll einzuvernehmen.

2. Dem Beschuldigten sind zu Beginn der Einvernahme der

vorgeworfene Sachverhalt zu nennen und vor Erlass der

Strafverfügung Gelegenheit zu geben, die Akten einzusehen und
sein Verhalten zu begründen.

3. Der Beschuldigte kann sich nicht vertreten lassen."

Section 573 of the Service Regulations states that a soldier's
"hair must be clean and tidy" (" die Haare sind sauber und gepflegt zu
tragen").

COMPLAINTS

1. The applicant who submits that Article 6 is applicable in his
case, raises various complaints under this provision.

a) The applicant complains that the Military Court of Appeal was not
a "tribunal" within the meaning of Article 6 para. 1 of the Convention.
He submits inter alia that the judges are chosen by the Director of the
Office of the Administration of Military Justice (auditeur en chef;
Oberauditor).

b) The applicant further complains under Article 6 para. 1 of the
Convention that upon institution of the proceedings he was not informed
of his rights of defence. There was no mention thereof in the minutes.
c) The applicant complains under Article 6 para. 1 of the Convention
that the proceedings before the Military Court of Appeal were not
conducted publicly.

d) Also under Article 6 para. 1 of the Convention the applicant
contends that the various decisions taken by the presiding judge
demonstrate his bias.

e) Under Article 6 subpara. 3 (b) of the Convention the applicant
complains that he was told that he would be placed in detention if he
did not immediately file his disciplinary court appeal, even before the
time-limit of three days had expired.

f) Also under Article 6 subpara. 3 (b) of the Convention the
applicant complains that he received only with much difficulty a
typewriter and paper to prepare his appeal statement.

g) Under Article 6 subpara. 3 (c) the applicant complains that
during the disciplinary proceedings and disciplinary appeal proceedings
he could not be represented by a lawyer.

h) The applicant complains under Article 6 para. 3 (d) of the
Convention of a breach of the equality of arms in that he could only
question witness E. at the trial, i.e. over seven months after E. was
questioned by the military authorities.

i) The applicant complains under Article 6 para. 3 (d) that at the
trial the presiding judge did not admit, or rephrased, certain
questions put by the applicant to the witnesses.

2. The applicant complains that as the Military Court of Appeal was
not a court, and its proceedings were not fair, he was not detained
following conviction "by a competent court' within the meaning of
Article 5 para. 1 (a) of the Convention. For this reason the applicant
claims damages under Article 5 para. 5 of the Convention.

3. The applicant complains that his conviction was not reviewed by
a higher tribunal as required by Article 2 of Protocol No. 7. The
applicant submits that the offences of which he was convicted did not
constitute "offences of a minor character" within the meaning of
Article 2 para. 2 of Protocol No. 7.

4. Under Article 13 of the Convention the applicant complains that
he had no effective remedy to complain about the decision of the
Military Court of Appeal.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 5 November 1990 and registered
on 18 December 1990.

On 19 October 1992 the Commission decided to communicate the
application to the respondent Government and invite them to submit
written observations on the admissibility and merits of the application
under Article 6 para. 1 and 3 (c) and (d) of the Convention and under
Article 2 of Protocol No.7.

The Government's observations were received by letter dated 21
January 1993 and the applicant's observations in reply by letter dated
18 March 1993.

On 11 May 1993 the Commission decided to invite the parties to
an oral hearing on the admissibility and merits of the application.
The hearing took place on 2 September 1993. The Government were
represented by their Agent, Mr. O. Jacot-Guillarmod, Deputy Director
of the Federal Office of Justice, and by Mr. J. Van Wijnkoop, Director
of the Office of the Administration of Military Justice (Auditeur en
chef), Mr. F. Schürmann, Deputy Head of the European Law and
International Affairs Section of the Federal Office of Justice, and Mr
J. Lindenmann of the European Law and International Affairs Section of
the Federal Office of Justice. The applicant, who was also present,
was represented by Mr. L. A. Minelli.

THE LAW

1. The applicant complains of the proceedings instituted against him
resulting in a punishment of five days' strict arrest. He invokes
Article 6 paras. 1 and 3 (Art. 6-1, 6-3) of the Convention.

The issue arises whether the proceedings concerned "the

determination of... any criminal charge against him" within the
meaning of this provision.

The applicant considers that Article 6 (Art. 6) of the Convention
is applicable to the proceedings in which he was involved since in his
view they concerned "the determination of (a) criminal charge" within
the meaning of this provision.

The applicant submits that the maximum possible duration of

strict arrest must be considered. Thus, Section 186 of the Military
Criminal Code envisages a period of strict arrest of up to 20 days.
At the outset of disciplinary proceedings, the specific period will
never be clear. For this reason, the protection of Article 6
(Art. 6) of the Convention must apply from the commencement of such
proceedings. The applicant points out that the shortest possible
duration of imprisonment under the Swiss Criminal Code is three days
(see Section 36 of the Criminal Code); yet even a prison sentence of
this length will fall under Article 6 (Art. 6) of the Convention.
As regards the manner in which strict arrest is executed, the
applicant points out that there is solitary confinement; a prohibition
of work and of reading books of one's own choice; and a prohibition in
principle of receiving visits or correspondence. As a result, strict
arrest is considerably more severe than ordinary imprisonment under the
general law.

The applicant also suggests as a further criterion to be

considered the proportionality between the actual culpability of the
person concerned and the severity of the sanction. In the present
case, slight culpability was severely punished.

In the Government's submissions, the applicability of Article 6
(Art. 6) of the Convention must be assessed according to the criteria
developed in the Convention organs' case-law, in particular the Engel
case (see Eur. Court H.R., Engel and others judgment of 8 June 1976,
Series A, no. 22, p. 35, para. 82). The Government recall that in the
Eggs case, which concerned a disciplinary sanction of 5 days' strict
arrest, Article 6 para. 1 (Art. 6-1) of the Convention was found not
to be applicable (see Comm. Report 4.3.78, D.R. 15 p. 35 at p.65).
The Government contend that in the present case the Military
Court of Appeal, when imposing the sanction on the applicant, relied
on Section 76 para. 1 in connection with para. 2 of the Military
Criminal Code. The latter provision concerns disciplinary punishment.
Thus, Swiss law regarded the offence at issue as a disciplinary one.
The Government moreover point out that disciplinary military law
is addressed to a well defined group of persons and the soldiers are
in a specific situation of subordination. Thus, in the Eggs case the
Commission found that that offence "infringes a legal rule governing
the internal operation of the armed forces; it does not, in the
particular sector of the armed forces, affect the general interests of
society normally protected by criminal law" (Comm. Report 4.3.78, D.R.
15 p. 35 at p.65).

Moreover, the Government contend that regard must be had, not to
the maximum possible sanction, but to the sanction imposed in the
concrete case. The Military Court of Appeal could not have imposed a
harsher sentence. Furthermore, five days strict arrest in the military
service cannot be compared to five days imprisonment following a
criminal conviction under common law. Military arrest may not be
served in prisons, and the sanction must as a rule be executed during
the military service (Section 315 of the Service Regulations).
The Commission recalls the case-law of the Convention organs
according to which, when determining whether such proceedings fall
under the scope of Article 6 (Art. 6) of the Convention, regard must
be had in particular to three criteria (see Eur. Court H.R., Engel and
others judgment, loc. cit., p. 35, para. 82).

The first question is whether the provisions defining the offence
belong, according to the legal system of the respondent State, to
criminal or to disciplinary law.

It is true that the offence of which the applicant was charged,
namely the breach of guard duty, is listed in the Swiss Military
Criminal Code. However, the provision applied was Section 76 para. 2
of the Military Criminal Code which emphasises the disciplinary
character of slight cases, such as the present one. Moreover, Section
303 of the Service Regulations, themselves concerned with the
discipline within the army, defines disciplinary faults as "slight
cases of criminal offences in respect of which the Military Criminal
Code envisages the possibility of disciplinary punishment". Indeed,
the Swiss authorities, when instituting the appropriate proceedings,
considered that the offence amounted to a contravention of disciplinary
rather than criminal law.

Finally, the Commission notes that Section 180 of the Military
Criminal Code, which was also referred to in the Eggs case, determines
that behaviour contrary to the requirements of military discipline is
to be sanctioned as a disciplinary offence unless it falls to be
regarded as an offence within the meaning of the Special Part of the
Military Criminal Code.

Thus, according to domestic legal system the offence belonged to
disciplinary law.

Next, the nature of the offence must be considered.

The Commission observes that the guard set up on 17 and 18

October 1989 at Landquart in which the applicant participated was not
concerned with the protection of public safety. Rather, the guard
duties were ordered in the context of a military repetition course and
constituted part of the military instruction and training of soldiers.
As such, the duties amounted to a typical aspect of the internal
operation of the military; they did not affect the general interests
of society.

The very nature of the offence was, therefore, disciplinary

rather than criminal.

Finally, the degree of severity of the penalty, which the

applicant risked incurring, must be considered.

In this respect, the Commission notes the similarities of the
present case to the Eggs case, which concerned that applicant's strict
arrest of five days, which he served after military service had ended
at Basel prison. In that case the Commission concluded that there had
been no criminal charge against the applicant within the meaning of
Article 6 para. 1 (Art. 6-1) of the Convention (see Eggs v.

Switzerland, Comm. Report 4.3.78, D.R. 15 p. 35).

Having regard to the Eggs case the Commission considers that no
substantial difference has been made out in the present case, either
as to the actual duration of the penalty which was five days strict
arrest in both cases, or the manner in which the strict arrest was
enforced.

It is true that in the present case the Battalion Commander could
have ordered up to ten days strict arrest. The present case thus
appears to differ from the Eggs case, where the five days arrest
actually imposed on the applicant was the maximum which could be
imposed by the Company Commander (see loc. cit.).

However, the Commission notes that the Military Court of Appeal
had no jurisdiction to impose a harsher penalty than the one originally
imposed by the Battalion Commander (see mutatis mutandis the case of
Engel and others, loc cit., paras. 84 et seq.). It follows that the
maximum penalty which the Military Court of Appeal could in fact have
pronounced did not exceed five days strict arrest.

As a result, the penalty concerned was not sufficiently severe
to bring the offence concerned within the sphere of criminal law. In
the Commission's opinion, this conclusion would remain the same even
if it was assumed that in the present case the maximum possible
sanction amounted to ten days strict arrest.

Thus, in applying the criteria developed in the Convention

organs' case-law to the circumstances of the present case, the
Commission finds that the proceedings instituted against the applicant
were disciplinary in nature. Thus, they did not concern "the
determination of... any criminal charge against him" within the
meaning of Article 6 para. 1 (Art. 6-1) of the Convention.

Article 6 (Art. 6) of the Convention was therefore not applicable
to the proceedings instituted against the applicant.

It follows that this part of the application is incompatible
ratione materiae with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant complains that as the Military Court of Appeal was
not a court, and its proceedings were not fair, he was not detained
following conviction "by a competent court' within the meaning of
Article 5 para. 1 (a) (Art. 5 a) of the Convention. This provision
states:

"1. Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the following
cases and in accordance with a procedure prescribed by law:

a. the lawful detention of a person after conviction by a

competent court..."

The Commission recalls that the notion of a "court" in Article
5 para. 1 (a) (Art. 5 a) of the Convention requires an organ which,
on account of the way in which it is organised, is judicial in
character in that it is independent of the executive and of the parties
to the case and offers adequate procedural guarantees (Eggs v.
Switzerland, Comm. Report, loc. cit., para. 66, p. 61).

The Commission further recalls that in two cases against

Switzerland it found a violation of Article 5 para. 1 (Art. 5-1) of the
Convention in that in the military disciplinary cases before the Swiss
authorities the applicants concerned had not been convicted by "a
competent court" within the meaning of this provision (see Comm. Report
13.10.81, Santschi and others v. Switzerland, D.R. 31 p. 5; Comm.
Report, Eggs. v. Switzerland, loc. cit. para. 72, p. 63).

As a result, in compliance with its obligations under Article 32
(Art. 32) of the Convention, the Swiss Government subsequently informed
the Committee of Ministers that the Military Criminal Code and the Code
on Military Criminal Procedure had been revised to the extent that a
court with full powers could henceforth reverse decisions of military
commanders (see Resolution DH (83), adopted by the Ministers' Deputies
on 24 March 1983, D.R. 31 p. 48 et seq.).

In the present case the Commission notes that upon the

applicant's disciplinary court appeal the Military Court of Appeal
conducted a trial which eventually led to the dismissal of the
applicant's appeal.

The Commission further considers that the requirements of Article
5 para. 1 (a) (Art. 5 a) do not necessarily correspond with the
guarantees enshrined in Article 6 (Art. 6) of the Convention. Having
regard to the applicant's submissions, the Commission finds that the
Military Court of Appeal which convicted the applicant complied with
the requirements of "a competent court" within the meaning of Article
5 para. 1 (a) (Art. 5 a) of the Convention.

This part of the application is therefore manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
3. Under Article 2 of Protocol No. 7 (P7-2) the applicant complains
that his conviction was not reviewed by a higher tribunal as required
by Article 2 of Protocol No. 7 (P7-2). According to this provision,
"everyone convicted of a criminal offence by a tribunal shall have the
right to have his conviction or sentenced reviewed by a higher
tribunal...."

The Government submit that Article 2 of Protocol No. 7

(P7-2) is not applicable in the present case. Thus, the interpretation
of the term "criminal offence" mentioned in this provision must
correspond with that of the term "criminal charge" within the meaning
of Article 6 para. 1 (Art. 6-1) of the Convention which, as has been
submitted, does not apply to the proceedings at issue.

The Commission has just found that the proceedings instituted
against the applicant did not constitute the "determination of... (a)
criminal charge against him" within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention. The Commission considers that for the
same reasons it cannot be said that the applicant was "convicted of a
criminal offence" within the meaning of Article 2 of Protocol No. 7
(P7-2). This provision was therefore also not applicable to the
proceedings instituted against the applicant.

It follows that this part of the application is incompatible
ratione materiae with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
4. Under Article 13 (Art. 13) of the Convention the applicant
complains that he had no effective remedy to complain about the
decision of the Military Court of Appeal. However, having regard to
its conclusion under Article 2 of Protocol No. 7 (P7-2), the Commission
finds no separate issue under Article 13 (Art. 13) of the Convention.
The remainder of the application is therefore manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Deputy Secretary to the Commission President of the Commission
(M. de SALVIA) (C.A. NØRGAARD)