| Analysis |
First, the Commission makes clear that although there might have been domestic remedies available to the applicants, these would not have been effective: ‘Whereas the Commission has noted the applicants’ submissions that an order of habeas corpus can only be obtained in cases of close confinement and that it could not be granted in respect of any restriction of freedom based on statutory power; whereas, on the basis of the information at present available, the Commission finds that both these elements appear to exclude in the applicants’ situation any chance of success of an application for an order for habeas corpus;’ and ‘Whereas the Commission further considers that mere internal representations to higher authorities within the military hierarchy cannot be considered as an effective remedy within the meaning of Article 26 (Art. 26);’
Second, as an interesting side note, the Commission underlines, which has become standard jurisprudence later on, that such remedies need not per sé entail access to an independent court. ‘Whereas this provision, although not necessarily presupposing a judicial review, nevertheless refers only to a reconsideration by some outside organ which is not part of the decision-making authority itself;’
Third, with respect to the right to family life, the Commission stresses that this term ‘cannot reasonably be given such a wide interpretation as to allow an individual – even a minor – to free him from the obligations under a long-term service engagement freely entered into but involving a separation from his family except for periods of leave; Whereas such is indeed the normal condition of anyone in the armed forces and even in many civilian occupations; whereas it is true that in the present cases this separation from the family is, or was, taking place at a time when the applicants are, or were, still minors; ‘
Fourth, the Commission makes clear that the service was with the consent of both the minor and the parents and consequently cannot be deemed a violation of the Convention. ‘Whereas the refusal of discharge from a service involving separation of a minor from his family to which both the minor and his parents had consented for a certain period of time, cannot be said in the Commission’s opinion to involve an issue of the right to respect for family life;’
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