Engel and Others Case

Abstract

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