Information Note on the Court’s case-law 18
May 2000
Serves v. France (dec.) - 38642/97
Decision 4.5.2000 [Section III]
Article 6
Criminal proceedings
Article 6-1
Fair hearing
Self-incrimination - reports drafted in disciplinary proceedings used in subsequent criminal proceedings concerning the same facts: inadmissible
Soldiers under the applicant’s command on patrol in the Central African Republic opened fire on a poacher and wounded him. They then dispatched him and buried his body. When the applicant was informed he ordered his men not to say anything and he himself did not report them to his superiors. The commanding officer found out about the incident nevertheless and there then followed an internal investigation and a number of reports about what had happened, based largely on interviews with the men involved. A report written by a senior officer concluded that the wounded poacher had been finished off and that the applicant’s responsibility was “weighty”. A later commanding-officer report confirmed this reading of the facts, which was devastating for the applicant. He was first charged with murder but eventually indicted by the First Indictment Division of the Court of Appeal only for aiding and abetting murder. The Military Court sentenced him to four years’ imprisonment. The applicant then appealed on points of law alleging an infringement of his defence rights in that the commanding-officer reports incriminating him had been added to the case file. The Court of Cassation dismissed the appeal, holding in particular: “The fact that the report on the commanding officer’s inquiry, carried out in the context of separate administrative proceedings, was added to the case file to be the subject of free discussion between the parties cannot invalidate the judicial proceedings”. The applicant was stripped of his rank and dismissed from the service.
Inadmissible under Article 6 § 1: With regard to the fact that the commanding-officer reports had been added to the case file, the Convention did not regulate the admissibility of evidence as such. However, in a criminal case, the use by the prosecution of evidence obtained by duress or pressure against the will of the accused infringed the latter’s right not to incriminate himself. In the present case the reports had resulted from a commanding-officer inquiry conducted by a senior army officer into the same facts as formed the subject of the criminal proceedings. It was likely that the applicant had been obliged to reply to the questions put to him during the commanding-officer inquiry, since he had been interviewed by superior officers and any refusal to answer would have made him liable to serious disciplinary penalties. However, in order to find a violation of Article 6, it was important to look more closely at the use that had been made of the reports during the trial. It did not appear from the judgment of the Criminal Division of the Court of Appeal that the indictment had been largely based on the statements made by the applicant during the commanding-officer inquiry, but mainly on a large number of witness statements taken down during the investigation. Nor did it appear that these reports had been used by the prosecution before the Military Court. Furthermore, they did not constitute the only evidence submitted to the Military Court’s assessment, since evidence had been taken from numerous witnesses, in particular. Moreover, the general who had compiled the reports in issue had been called to give evidence and the applicant had not alleged that he had been unable to cross-examine him: manifestly ill-founded.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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