Engel and Others

• Date: 23 November 1976
• Court: European Court of Human Rights

European Court of Human Rights

(Mosler, President; Verdross, Zekia, Cremona, Wiarda, O'Donoghue, Mrs Pedersen, Vilhjalmsson, Petrén, Bozer, Ganshof van der Meersch, Mrs Bindschedler-Robert and Evrigenis, Judges)

Engel And Others Case

The individual in international law — Human rights and freedoms — European Convention for the Protection of — System of military disciplinary law and procedure — Applicability of Convention to members of armed forces as well as to civilians — Relevancy of the particular characteristics of military life — Article 5(1) (right to liberty and security of person) — Exhaustiveness of permissible limitations set out in Article 5(1) (a)–(f) — Meaning of ‘liberty’ in context of Convention — Difference in standards between servicemen and civilians — Normal conditions of life within armed forces of Contracting States — Evaluation of various forms of physical restriction complained of — Compatibility of deprivations of liberty as found with Article 5(1) of the Convention

Article 5(1)(b) (restriction permitted to secure the fulfilment of any obligation prescribed by law) — Wide interpretation unacceptable — Article 5(1)(c) (permissible restriction regarding, inter alia, detention on remand) — Restriction exceeding maximum permissible under domestic law — Breach not eliminated by taking period of detention on remand into consideration in regard to sentence

Article 14 (prohibition against discrimination in respect of enjoyment of rights and freedoms set forth in the Convention) — Distinctions between officers and other ranks — Hierarchical structure of armies creative of inequalities — Margin of appreciation — Pursuit of a legitimate aim — Principle of proportionality — Article 14

Article 6(1) (right to fair hearing in, inter alia, determination of a criminal charge) — Relationship between disciplinary proceedings and criminal charges — Court's right to determine whether a disciplinary charge counts as criminal within the meaning of Article 6 — Matters to be considered in making such a decision — Failure to afford a public hearing in regard to certain of the proceedings — Article 6(2) (presumption of innocence) — Interpretation of this provision — Article 6(3) (specific procedural guarantees in regard to determination of criminal charge) — Adequate time and facilities for preparation of defence — Right to defend oneself in person or through legal assistance of one's own choice — Right to have witnesses examined — Article 6 and 14 taken together — Difference between military and civilian proceedings explicable by differences between military and civil life

Article 10 (freedom of expression) — Meaning and application of phrase ‘for the prevention of disorder’— Application to the order that must prevail within the confines of a specific social group — Relationship of phrase ‘for the prevention of disorder’ to the phrase ‘prevention of crime’— Meaning and application of phrase ‘necessary in a democratic society’— Margin of appreciation —‘Duties’ and ‘responsibilities’ within the meaning of Article 10 (2) — Distinction between depriving person of his freedom of expression and punishing the abusive exercise of that freedom — Articles 10 and 14 taken together

Article 11 (freedom of association) — Applicants punished not for their participation in an association or its activities but for their abuse of freedom of expression

Article 50 (question of just satisfaction) — Moral damage — Factors taken into account in the evaluation thereof — Token indemnity — No evidence of direct or indirect damage — Judgment in itself adequate just satisfaction

Summary 1: The facts:—Messrs. Engel, van der Wiel, de Wit, Dona and Schul were non-commissioned conscript soldiers 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 and to the Supreme Military Court. The cases related, in essence, to the compatibility of aspects of the system of military discipline with the Convention. This system made distinctions in various matters between officers and other ranks.

Engel. On 18 March 1971 the Applicant, a sergeant in the Dutch army, was punished with four days' light arrest for having been absent from his residence on the previous day. ‘Light arrest’ meant, in particular, that an individual subjected thereto had to remain in his dwelling during off-duty hours, or was confined to barracks during that time. The Applicant

returned home that evening wrongly believing that, like officers, he was entitled to serve such arrest at home. He was then sentenced to three days' aggravated arrest for having disregarded the previous penalty. A person undergoing ‘aggravated arrest’ continued to perform his normal duties but for the rest of the time had to remain in a specially designated but unlocked place. The Applicant disregarded this penalty and was arrested by the military police and provisionally detained in strict arrest for about two days. On 22 March his company commander imposed a penalty of three days' strict arrest for having disregarded his two previous punishments. A person undergoing ‘strict arrest’ was locked in a cell and excluded from the performance of normal duties. The execution of these punishments was suspended to enable the Applicant to take his doctorate. The Applicant also complained to the complaints officer who, having heard the parties, reduced the first punishment 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. He decided, moreover, that the two days' strict arrest should be deemed to have been served during his provisional arrest. The Applicant appealed to the Supreme Military Court. After hearing the Applicant the Court confirmed the contested decision of the complaints officer. The Applicant had at no time received the assistance of a legally trained person in regard to the proceedings against him.

van der Wiel. The Applicant, a corporal in the Dutch army, was sentenced by his company commander to four days' light arrest for being late for duty. He appealed, first to the complaints officer, and subsequently to the Supreme Military Court, which confirmed the original sentence. At neither first nor second instance had the Applicant received legal assistance. In the Supreme Court the legal assistance afforded him had been confined to the legal aspects of the matter.

de Wit. The Applicant was a private in the Dutch army who was sentenced by his company commander to three months in a disciplinary unit for various offences under military discipline. His appeal to a complaints officer was rejected. The Supreme Military Court, to which he had further appealed, reduced the sentence to twelve days' aggravated arrest. The Court heard the Applicant and his legal adviser, the latter on only the legal aspects of the case. The Applicant stated that the calling of two witnesses on his behalf had been prevented.

Dona and Schul. These Applicants were serving as privates in the Dutch army and were editors of the periodical of the Conscript Servicemen's Association. In September 1971 the distribution of one issue of this periodical was prohibited by the military authorities on the ground that its contents were inconsistent with military discipline. Notwithstanding this prohibition the issue was circulated. On 8 October 1971 the Applicants were sentenced by their competent military superiors to three and four months' committal to a disciplinary unit. On that date the Applicants indicated their intention to complain about their punishment. They were requested to refrain from further publications. The Applicants asserted that the request was made while proceedings were pending. The Government maintained that the request was not of a general character but only in regard to any other articles tending to undermine military discipline. The Applicants refused to give these undertakings and were placed under aggravated arrest. On 19 October the complaints officer rejected their appeals. The Applicants appealed to the Supreme Military Court. The appeals suspended their committal to a disciplinary unit but not their interim custody. On 27 October 1971 the Court ordered their release after they had promised to accept its judgment on the merits of the cases, and on certain other undertakings being given. On 17 November 1971 the Court confirmed Dona's committal for three months and reduced Schul's committal from four to three months. Committal to a disciplinary unit consisted of submitting the offender to a stricter discipline than normal by sending him to an establishment which was specially designated for that purpose. None of the above penalties were entered on the Applicants' criminal records. For the first month of their committal, neither was allowed to leave the establishment and each was locked in a cell during the night.

Proceedings before the Commission

The Applicants complained to the Commission of breaches of Articles 5,2 6,3 10,4 11,5 14,6 177 and 18,8 and all Applicants claimed compensation. The applications were joined. One ground of complaint was rejected as manifestly ill-founded on 17 July 1972, otherwise all the applications were declared admissible. In its report of 19 July 1974 the Commission expressed the opinion:

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

• —(by various majorities), that the other disciplinary punishments complained of by Engel, de Wit, Dona and Schul had infringed Article 5(1) since none of the sub-paragraphs of that provision justified them;

• —(by eleven votes, with one abstention), that there had also...