Brandão Ferreira v. Portugal (dec.)

Information Note on the Court’s case-law 22

September 2000

Brandão Ferreira v. Portugal (dec.) - 41921/98

Decision 28.9.2000 [Section IV]

Article 6

Criminal proceedings

Article 6-1

Criminal charge

Military disciplinary proceedings: Article 6 inapplicable

Disciplinary proceedings were brought against the applicant, a wing commander in the air force, for being absent without leave and using an army vehicle for four days while on duty at the Portuguese Embassy in Guinea Bissau, where he had been posted as a military attaché. The disciplinary proceedings were ordered by the Chief of Staff of the Armed Forces who appointed an investigating officer to conduct the investigation. During the investigation the applicant requested that the investigating officer hear evidence from three witnesses. That request was turned down. The Chief of Staff accepted the submissions of the investigating officer and found that the applicant had infringed military disciplinary regulations and ordered five-days’ detention. The Chief of Staff accepted in part an objection raised by the applicant of a breach of the principle of adversarial process and ordered the investigating officer to take evidence from the witnesses called by the applicant. The investigating officer heard the three witnesses without either the applicant or his representative being present and concluded that their depositions could not alter his previous findings. The chief of staff confirmed the sentence of five-days’ detention which the applicant had served in the meantime. The Supreme Military Court dismissed the applicant’s appeal holding, in particular, that the principle of adversarial process, which was inapplicable to the investigative stage, had not been infringed.

Inadmissible under Article 6 § 1 and § 3 – As regards the legal nature of the measure in issue under domestic law, the offence alleged against the applicant was a disciplinary offence under Portuguese legislation. As to the nature of the penalty imposed on him, it appeared to come within the category of disciplinary penalties, whose aim is in general to ensure compliance by members of particular groups, in this instance the military, with their own rules of conduct. Lastly, as regards the nature and severity of the measure, although the applicant had had to serve five-days’ detention when the maximum penalty that could have been imposed was ten days, he had not been deprived of his liberty, since the wording of the military disciplinary regulations indicated that the applicant would not have been imprisoned for the period concerned but would have continued to perform his military duties almost as normal. The penalty imposed on the applicant was thus similar to the “light arrest” in issue in the Engel case in respect of which the Court held that Article 6 was inapplicable. In conclusion, the measure imposed on the applicant was not, by its nature or severity, sufficiently grave as to warrant its being qualified a “criminal” penalty for the purposes of Article 6 § 1. Consequently, the criminal branch of that provision did not apply. Furthermore, the applicant had not alleged that a civil right was in issue in the instant case: incompatible ratione materiae.

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This summary by the Registry does not bind the Court.

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