APPLICATION/REQUÉTE N" 127 17/87 Olivie r DUPUIS v/BELGI UM Oli vier DUPUIS c/BELGIQUE DECISION of 8 Scp tember 1988 on the admissibility of ihe appl icat ion DÉCISION du 8 septemb re 1988 sur la recevabilité de la requête Article 6 , paragraph 1 oi[he Convention : /ndepe ndenre anAimpartin [in~ of coivrs manfal and the Militurv Court (Belgium) . Thefac! (hat the militanm emhers n% Jiese enurts are uppairued for sessions of one rnon th is of li(t(e eunseyuen re Hoirrrer , it is eccemlul thnt iri die pe~fi~rmnnee of their duties they .dmu/d nnt 6e subjet't to ar na uthorirv. Article 25 of the Cnnvenfion : Someone who rornpluins ubnW n silualiun which he himvel(hrlped m hring about cannot claim to he the virtim ofn i'io(mion. Article 26 nf the Convention : The mere fact thut ail remedie.c have bren lodged does not n(iLcelj cnnstitute compliance with the exhaustion of donte.qir remedies. /t is also reyidred thm ihe substance of any rompfaint should have bern ruised before the appeal wnhorities. Article 6, paragraphe 1, de la Comention : lndépendanre et impartialité des conseils de guerre et de la Cour militaire (Belgique). Peu importe que les membres militaires de ces .juridictions soient nommés pour des sessioits d'un moi.e : l'essentiel est que, dans l 'çeercice de leurs fonctions, ils ne soient soumis à uu<-une atetorité. Article 25 de la Convention : Ne peut s e prétendre victime <l'une rio(ation de lc Corivenliun ce6 ii yui se• plaint d 'un e situation qu 'i[ a lui-rném e co n(ri6ue' 6<réer. Article 26 de la Convenlion : Cépuisemem des voies de recours n 'est pas réo[isA par le seul exe t ciu• des rrruurs runis exige que les griefs oieiu été sau/r rée ni .v ubsfa nre devaru lautarité de recuws. 1 91i ('/'RANSLrI T/ON) 7HE FACTS The facts of the case, as subniitted by the applicani, may be summarised as fol lows . The appl icam, a clerk born on 25 Feb ruary 1958, lives in Brusscls . In thc proceedings before the Canmission hc is rep resented by Mr. Yves De Gratic, a lawycr practising in Bmsscls . Under Article 4 of the co-ordinated laws on military service of 30 April 1969, the applicant at the age of 19 was registered on the lists (or the 1977 contingent of conscripts cu lleJ up tor m illlary service . H e obtained seven defermen[s and, as the eighth deferme nt was refused, he was a ttached to the 1 984 contingent . He was therelixe invited Iu attend, on 29 March 1984, a medical examination to ascertain hi s 1vi fimess for service, oi the recruitment and selection centre . He arrived on the arranged date a[ the recruitme nt and selection centre and, in accordance with Article 57 of the co-ordinated laws on military service, he was from that moment subjeet to military law in his capacity as a member of the armed forces . Under Anicle 87 para . I of the co-ordinated laws on military service, he was exempted from active serv ice hy a dec i sion o f 13 June 1984 taken by Ihe Commissio n nf Ihe Belgian Ministry of Defence . Arti cle 87 slipulatas tha t If the Minister for Defence foresees ihat the number o( cunscripis called up in the same year, and acknowledged (u be fii for service, wi ll exceed requirements, he may grant exemption from active tiervice, to the amount of the surplus and in the following order o f priorily : . . . .' . When the applicant was officially informed of this exemption, he replied on 1 0 July 1 984 thai he wished to waive this cxem plion . However, he requested a lurlher postponemen[ until t'ebmary-March 1985 i n order to tinish his studies . Th is request was granted and he was invited to join a training centre i n Bruges, on 4 Februury 1985 at 2 pm . The appl ican l JiJ noi mrn u p in Bruges on 4 Feb ruary 1985 . He was thc rc(urc regarded as a deserLCr on 20 Feb ruary 1985 by v inue ul Article 107 para . 1 uf Ihe co-ordinated laws on in ilimry service . Unde r Article 107 para. 2, infringements of the first paragraph of tha t article are tried by military courts and liable to the penalties laid down in the M ilitary Penal Code . I n a lelegram to thc M inister for Justice, lhe Mi nis[er for the In[crior, the Minister for De lence, the public prosecutor and the "au di[eur militaire" (judge udvoeate), the applicant explained, eight months after rc lusi ng to join the training centre in Bruçes, that on 9 October 1985 at 12 . 1 5 pni he would be in front uf the European Communiiy buildings and that in this way he iniended to place himself at the disposal of the luw. In a manifesto of the "Partito Radicale" of 7 October 1985, il was expluined thal the npplican[ was act ing to give a European Padiameni resolution on conscientious objection force of law, to afli rm than the defence of o ur society by the use of arms is nothing more than deception and illusion and to ensure the survival and developmant o( at least five mill ion human beings facing s[arva lion. The applicant was then brought before a cou« martial charged with the lidlowing : °as a cunscript assigned to mil ilary service, fuiling to join his unil or iervice, i n peacetime, wi[h i n fil(ten days of the date prescr ibtd" . The Brussels permanem court martial se nlenceJ ihe applicant, in a j udgmem nn 4 Novcmbcr 1985 . Iu 24 months' mi litary imprisonment . On appeal by the public prosecutor on 8 November 1985 and by the applicant on 14 November 1985, the Brussels Military Court con tirmed Ihe decisions of the court mart ial in its decision of 26 January 1 986. 204 The applicant a ppzalcd to the Court of Cassation com pl aining of a violation o f Artic le 6 para. I of the Conve ntion . In a judgment of 1 6 April 1 986, the Co urt of Cassation quas hed th e decision of the Military Co urt of 26 Janu ary 1 986 on th e ground that Ih e Preside nt of the Military Court w h ich hxd de livered this decision had also presided a t a hearin g of the Mifitary Court of 26 Nuvember 1 985 w hich had dec ided o n Ihe a pp eals lo dged by I he applicant and t he publ ic prosec uinr against a judgmenl of 28 Oanber 1 985 of the permanent court marlial of Brusse ls which had declared the applica ni's request for re lease lodged on 25 Octobe r 1985 ad mi ssible and illdound ed . The case was remitted to the Military Court di(feremly composed . The Military Court held a hearing on 15 May 1986 during which it refu sed the appiicant's- reyuest lo adjourn the case for another three weeks in order Io complete his defence, (ollowing the replacement of one of his l awyers. The case was nevertheless continued from 15 May to 20 May . On 23 May 1986 the applica nt asked for the proceedings to be reopened so that 12 new witnesezs could be heard ; on 26 May 1 986 he once agai n asked for the proceed ings to be reopened to enable him to lodge, in thei r entirety, documents from which the public prosecutor had read extracts at the hearing on 15 M ay. These two requests were rcjected by the Military Court. On 27 M,ry 1986 t he Permanent Military Court of Brussels confirmed the j udgment of the co urt muniul o f 4 November 19 85. The Mi litary Court neve rtheless decide d t o suspe nd a nforcement of the judgment for two years, a lth ough the suspension applied o n ly to that pun of the priso n se ntence which exceeded t he duration of one year, on the condition t hat the applica nt work ed in B elgium, fu ll-time and i n accordance w ith social legislation, in a charity organisation worAing lo combat famine in und er-p rivilege d coun tries, for a dur ation of Iwo ycacs a nd und er t he wperv ision of a proba tion board . The Military Court dec lared . more panicularly, lhal Ihr appli ca nt's complain t that the cuurt mattial and the M iliia ry Court were not independeni and i mpanial as required by Artic le 6 para. I of Ihe Conven iion , was unfounded . considering that there could be no reasonable dou bt surround ing thc guaran tees o f impartia liry a nd independence offered by the mi litary cou rts . The Military Coun considered that these guarantees had not only existed i n concrete form in the par(icu lar case, but also ex ist from an abs tract and theoretical poi nt of view . The applicant appeaicd to the Court of Cassation against the judgment of 27 M ay 1986. He claimed that on account of their composition, thcir organisation and thei r own rules of procedure, the military courts do not objectively present the independence and impartiality required to try an offence resul ting from a person's refusal to accept the status of servicema n or conscientious objector for moral or political reasons, and that there was Iherefore a violation of Article 6 para . I of the Convention . In deciding on the appea l, the Court of Cassation noted that the ofticers exerc ising judicial powers as mzmbers of a mi litary court are not only exempt from die 205 hierarchical and supervisory amhoriry of political, administraiive and mi li[ary au[horit ies, but are ako buu nd to remain independent v i s-à-vis the said nu[ huri[ies u nd the parlies to the tr ial o r any Ae fucm authority si nce in the oath taken hefore they take up their duties, in accorda nce with A rticles 54 and 114 0( the law of 15 J une 1 899, chese u ffire rs make a public and solemn und ermki ng lo abide by the obligations o( independence and impartiality . CONIPLAINTS The applicant, who rejuts the policy of national defence a nd refuses to carry out his military service or any other substitute service provided (ur under Belgian law, complains that he was not given a fair hearing by an independent and impartial tribunal established by law, that he did not have adequate time for the preparation ul his defence and thai he was able to have examined only some witnesses and produce only some doc uments. He cluinu first of all that the Military Court and the court martiul, even though they are provided for hy the Constitution and by Belgian law, cannot constitute independent und impartixl tribunals within the meaning o( Article 6 para. I of the Comentian nn account of their composition, their rules of proced ure und the fact that they arc special cuurts, i .e. not ordinary cou rts . He al leges part icularly thu[ despite the fact thae ehe militnry mambers, who form the very great majority of the two judicial boards bzfore whic h the applicant had to a ppear, temporurfly acquire the status of lüdgt, they nevzrthzless remain subject W the executivc autho rify t moreuver, tiince Ihese military members are required Io exen in ju dicial powers only for ;3 very short perind of one mnnth, it can reasonably be y uesliuneJ whether they may genuincly el ude military influence . He also considers Ihal Ihere existed in h is mind a°rea%o nable doubi" as to the sui[ability of career officers tu judge impaniully an nccused perso n who challenges the policy of national defence an J rcluserc hoth the staws uf serviceman and that of conscientious objector. Thc applicant adds [hal he was no[ give n a fair trial bef'ore a tribunal es tablished by law. He al leges that he was separated, agains( his will and in breach of Article 8 of tlie Belgian Constitution, from the jury which should have been assigned to him given the poli(ical nature of his act . Article 98 of the Belgian Constitution provides that "a jury shall be established . . . for political offences" . Given the political motivz for his action , the applicant considers that by viola[ing the constitu tional principle of referral w a j ury, the Belgian Government violated his right [o v(air heaiing by a tribunal cstabl ished by luw. The applicant also points out that preparatory meaaurcs and in purticular the taking ol onths by m i litary membcrs of the M ilitary Court were carr ied out under the presidency of [he judge who had already hxd to decide on thc lawfu lness of h is conlinuing delention on remand and deliver the decision of the Military Court of 206 26 January 1986 which was quashed by a judgment of the Court of Cassation on 16 April 1986 . According ro the applicant , this cirwmstance al so created a reason - able doubt in his mind as to the impart iality of the court . The applicant also claims that the drawing of lot s to choose the officers required to sit on the bench durin g the appeal p roceedings was unfair because this draw took place at the hearing of the permanent Dutch-speaking Chamber of the Milita ry Court , whereas Article 24 of the law of 15 June 1935 stipulates that "before ail appeal courts, the proceedings shall be conducted in the language in which the decision at i ssue is drafted" . The applicant then complains of an in(ringement of his right to a fair trial insofar as there is no evidence that the vote taken by the Military Court was by secret ballot, whereas Article 8 of the decree-law of 14 September 1918 stipulates that the vote musl be by secret ballot both for the main proceedings and for the existence of mitigating or aggravating circumstances, in order to en su re the independence and freedom of conscience of the officers making up the court , irrespective of any differences in rank. The applicant also alleges that he did not have adequate time to prepare hi s defence, in violation of Article 6 para . 3 of the Convention , because th e Military Court refused his request to adjourn the case for three weeks . Lastly the applicant complains that the Military Court refused him, on 15 May 1986 , the right to have examined 12 new witnes ses and, in its decision of 27 May , Ihe right to lodge in their entirety documents from whi ch the public prosecutor had quoted extracts. He regards these refusais as an infringement of the principle of °cqualiry of arms" guaranteed by Article 6 para. 1 of the Convention . THE LAW I . The appl icant asserts that the Military Court and court martial could not constitmc independent and impartial tribunals within the meani ng of Article 6 para. 1 of the Convention on accouni of their composition, their rules of procedure and the fact that they are special courts, i.e. not ordinary courts . He alleges that despite the fact that the military members, w ho form the very great majority of these two judicial boards, tempo rarily acquire the status o fjudge, they nevertheless remain subject to the executive a uthority, and that since these mil itary members are req uired to exercisejudicia l powers only for a very brief period of one mo nth, it can reasonably bc questioned whether they may gen uinely elude mi litary infl uence. He also considers that there existed in his mind a reasonable doubt as to the suitabi liry of career officers to judge impartially an accused person who challenges the policy of national defence and refuses both the status of serv iceman and that of consc ientious objec[or. 207 With regard to the l ack o( impartiality o( the mili tury courts in trying pennns who challenge national defence policy and refuse to accept the sta[us either o( serviceman or of eonscientious objector, the Commission notes tha l the applieant never asked «o have the status nf conscientious o bjzt«ir, whercas under the coo rdino led laws on consc icnt iws objection o ( 20 February 1980, he could have been exempt eilher from armed milimry service or from any type of military service . However, Ihe applicant requested defenuen l of his mil i[ary service on eight occasions, on seven o( which it was granted . Then on 24 March 1984, he attended the examination to ascertain his Citness for service at the recmitment and selection cen tre and from that momen l , in accordance with Article 57 of the cao rdina [ed laws on military serv ice o ( 30 April 1962, became tiubject to military law in his capacily as a meniber of the armed (ones . The Commission also notes thni although he was exempted (rom active service by a decision o( 13 lune 1 984 hy the Commission of the Ministry of De fence, he decided lu waive [his exemption . The Commission cons ide rs that by adopt ing this a ltiWde, the applicant made a choice whic h implied that his case would hc referred lo the military courts . By rei}aini ng from requesting ihe status o( cunncicnlious objec[ur, by cnNorming to var ious Cu rmalilics attached to mil ilary service (reques[ing de lermem, examination to ascertain (itness for service ai the recmitment and se lection centre) and by refusing in addition exemp tion from active service, the applicant created a s imation which meant that, by refusing lo attend the training centre to carry out his mi litary service, he was b rought hefore the m ilitxry tourls on a charge ul deaertion in accurdunce wi lh Art ide 1 07 paras . I and 2 0( the co-urdina ted laws o n milita ry service . Bearing in mind the upp lictmi 's attitude, hc cannot comp luin ol a situation w hiuh he himself contributed to bringing about and cannot therefore claim to be a victim u l a vio lelion of Article 6 due Io the alleged ly objeclively partial nature of Ihe military courts in examining his case . With regard lu the abscnce of i ndependencc and imparti ality of military courts in gener.d . Ihe Commission notes that t he applicant docs nol indVcaie how thc military courts failed in their dary in be imparti;il . On the other hand, Ihe app licant mainlains thm the military mcmbers forming the very grea l majority of the two jud icial boards remain subject ro the executive authority, par ticularly on account of the (act that they are required to exercise judicial powers onty for a period of onc month . Ihe Commission recalls Ihal allhuugh Ihe c ivilian member ol ihe court martia l is appoinird lor three months and although the civilian President ol the Military Court cannot be removed, the (our mil itary members o( lhese courtti are appointed for sessions of one month . The reyuiremem for a judge to be independent does not necessarily imply that he should he appointed for life or that he shnuld have security of tenure in law (in other words, that he cannot he given other dwie, wi(hout his conseni) . Il is essentVul, however, thai he shnu ld not be subject Iu any nuthoriry in 208 ihe performance of his duties as a judge (No . 8209/78, Dec . 1 3 .79, D .R . 1 6 p. 166) . The military members of the military courts cannot be renioved for the dura tion of their m anda te. Eve n th ough , as membe rs of the armed forces, they are subject to the autho rity of their hiera rchica l superiors in the ir respec tive u nits, when they s it as judges they are not answerable to anyone abo ut the way in which they administer jus tice. They are not s ubject to a ny auth ority in the exercise of the ir j udicial funetions, and these take priority, except in cases of force majeure, ove r all other military se rvices (Art icle 148 of the Code of Military Cr iminal P rocedure) . Their independe nce is Cunher guaranteed by the fact that the part each membe r plays i n the (aki ng of the decis ion remains secret, beca use the decisio n is taken by the whole benc h and the members are oblige d und er oa th to keep the de liberat ions secret . There is therefore no thing to cast doubt on the fact that the courf mart ial and the Military Court we re, in this case, inde pendent and impanial tribunals within the mcaning of Article 6 para . 1 . It folluws that this part uf the appl ication must be rejected as being manifestly ill-founded w ithi n the meaning of Article 27 para . 2 0( the Co nvention. 2 . The applicant also complains that the procedure followed by the military courts invol ved several viola tions uC Article 6 para . I and a v iolation of Article 6 para. 3(b) of the Convention . As far as these complaints are concerned, the Commission is not required to decide w hether the facts al leged by the applicant disclose a violation of these provisions. Under Article 26 of the Convention, "t he Commissio n may only deal with the matter after a l l domestic remedies have been ex hausted, according to the gencrally recogn ised rules o f international law" . This condition i s not met simply because the applicant submitted his case to different competent tribunals . It is also requi red that the complaint made before the Commiss ion should have been raised, a t least in substance, dur ing the proceedings cuncerned . The Comm ission refers to its established case-law on this matter (see, for example, the decisions on the admissibility of Applications No. 1 103/6 1 , Dec. 12 .3 .62, Yearbook 5 pp. 1 69- 1 87 ; No . 5574/72, Dec . 21 .3 .75, D. R. 3 pp. 10, 15 ; No . 10307/83, Dec. 6.3 .84, D .R . 37 p. 113) . In this case, the applicant did not raise the complaints, either formally or even in substance d uring the proceedings before the Court of Cassation leading to the judgment of 24 July 1 986, of which he complains before the Commission. Moreover, an examination of the case as it has bee n submitted does not reveal any particular circumstance that could have dispensed the applicant, according to generally recogn ised principles of international law in the field, from raising these complaints in the procedure mentioned above. 209 It thcrcforc follows that as far as these complaints arc concerneA, the applicant did nut satisfy thc raquireme nt to exhaust domestic remediev and that Ihese cornpl ain(s must therefore be rejected i n accordancc wit h Article 27 para. 3 of the Convention . For Ihcsc re aso ns, the Commissi on DECLARES THE APPLICATION INADMISSIBLE. 210