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Legal Digest of International Fair Trial Rights
In Engel and Others v the Netherlands, the applicants before the European Court of Human
Rights were conscript soldiers in the Dutch armed forces and complained about the fact that
they were subject to military disciplinary procedures instead of criminal procedures applicable to civilians. They complained that these procedures did not provide the guarantees
required of Article 6 of the ECHR and that this also involved discrimination against them,
as members of the armed forces. The European Court considered that there were objective
and reasonable grounds justifying the application to members of the armed forces of disciplinary procedures that were separate to the criminal law procedures applicable to civilians.
The Court stated:
“Whilst military disciplinary procedure is not attended by the same guarantees as
criminal proceedings brought against civilians, it offers on the other hand substantial advantages to those subject to it… The distinctions between these two types of
proceedings in the legislation of the Contracting States are explicable by the differences between the conditions of military and of civil life. They cannot be taken as
entailing a discrimination against members of the armed forces, within the meaning of Articles 6 and 14 (art. 14+6) taken together.” 162
In Scoppola v Italy, the European Court of Human Rights noted that the summary procedure provided for in the Italian Code of Criminal Procedure entails undoubted advantages
for the defendant, including a substantially reduced sentence and a bar for the prosecutor
to appeal on almost all grounds. The European Court, nevertheless, took the view that the
summary procedure also entailed a diminution of the procedural safeguards, particularly
public hearings and the possibility to adduce evidence and have witnesses summoned.163
162 Engel and Others v the Netherlands [1976] ECHR 3, para 92.
163 Scoppola v Italy [2009] ECHR 1297, para 134.
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