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THE FACTS

The applicant is a Portuguese national who was born in 1953 and lives in Lisbon. He is represented before the Court by Mr A. Fialho Pinto, a lawyer practising in Lisbon.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

In 1997 the applicant, a wing commander in the airforce, was a military attaché at the Portuguese Embassy in Guinea-Bissau.

On 20 February 1997 the chief liaison officer for military attachés informed the Armed Forces General Staff that the applicant had been absent from duty, without leave and using an official vehicle, for four days.

On 25 February 1997 the Armed Forces Chief of Staff ordered disciplinary proceedings to be brought against the applicant and appointed an officer to conduct the investigation.

On 26 February 1997 the investigating officer sent the applicant a copy of the chief liaison officer’s report with a request for his comments, which the applicant sent him on 7 March 1997.

On 14 March 1997 the investigating officer heard evidence from the chief liaison officer in the applicant’s absence.

On 30 April 1997 the investigating officer lodged submissions accusing the applicant of dereliction of duty contrary to paragraphs 25 and 34 of Article 4 of the Military Disciplinary Regulations (unauthorised use of a military vehicle and absence without leave), aggravated by circumstances set out in subparagraphs (b) and (h) of Article 71 of the Regulations (the breach of regulations had occurred overseas and had been detrimental to the service).

In his reply lodged on 16 May 1997 the applicant gave the names of three witnesses from whom, he said, the investigating officer should take statements.

On an unspecified date the investigating officer declared the investigation to be at an end and sent his report to the Armed Forces Chief of Staff. On 23 May 1997 the Chief of Staff found the applicant guilty of the alleged offences and sentenced him to five days’ detention.

The applicant requested the Chief of Staff to review that decision on the grounds that there had been a breach of the adversarial principle. By an order of 19 June 1997 the Chief of Staff granted the request in part and ordered the investigating officer to take evidence from the witnesses whose names had been provided by the applicant.

The investigating officer heard the three witnesses concerned in the absence of the applicant and his representatives between 13 and 18 June 1997. In his report dated 18 June to the Chief of Staff, he indicated that the statements of the witnesses did not alter his earlier conclusions.

By an order of 18 June 1997 the Chief of Staff upheld the sentence of five days’ detention, which had been served by the applicant in the meantime.

On an unspecified date the applicant appealed against that decision to the Courts Martial Appeal Court ( Supremo Tribunal Militar ). He alleged among other things a violation of his defence rights and of the adversarial principle. In that connection, he complained that he had not been permitted to question the witnesses whose names he had given, either in person or through his representative.

On 30 October 1997 the Courts Martial Appeal Court dismissed the applicant’s appeal. With regard to the adversarial principle, it said, inter alia :

“Certainly, military disciplinary proceedings, which are not criminal proceedings, are governed subsidiarily by the procedural provisions of the Code of Military Justice, and in particular those guaranting the rights of the defence. However, criminal proceedings comprise two distinct stages: the investigation stage, which is governed by the inquisitorial principle, and the trial stages, which is subject to the adversarial principle. During the investigative stage, the accused’s representative is not entitled to question or contradict witnesses. He is restricted to requesting them to give evidence on certain factual matters before the investigating [officer]. For that reason, there has been no breach of the adversarial principle, which is inapplicable to that stage of the proceedings...”

The Courts Martial Appeal Court went on to hold that the mitigating circumstance pleaded by the applicant, namely his co-operation in uncovering the truth, was not to be taken into consideration.

B. Relevant domestic law

Detention or a ban on leave ( detençao ou probiçao de saída ) is a penalty laid down by Article 26 of the Military Disciplinary Regulations (adopted by Legislative-Decree No. 142/77 of 9 April 1997), which provides, inter alia :

“1. Detention or a ban on leave shall consist of the confinement of the person punished to barracks or aboard ship throughout the term of the sentence. The person punished shall not be exempted from military training or the performance of rota ( escala ) duties.

...”

The sentence may not exceed ten days in the case of officers. As to its effects, Article 53 lays down that the person concerned shall lose one day of seniority rights for every four days’ detention.

The Military Disciplinary Regulations also lay down other sentences, notably disciplinary imprisonment and aggravated disciplinary imprisonment. Disciplinary imprisonment means detention in suitable premises. However, the serviceman may be called on to perform any work required of him between morning and evening (Article 27). Aggravated disciplinary imprisonment means detention in a prison.

COMPLAINTS

The applicant complained that he had not been permitted to question the officer whose reports had led to the disciplinary proceedings being issued or the defence witnesses, whereas the investigating officer had been given the opportunity of doing so. He submitted that that state of affairs amounted to a flagrant breach of the adversarial principle, as guaranteed by Article 6 §§ 1 and 3 of the Convention.

The applicant further maintained that the failure of the Courts Martial Appeal Court to take the mitigating circumstance he had put forward into account undermined the presumption of innocence and the principle requiring sentences to be proportionate. He relied in that connection on Article 6 § 2 of the Convention.

THE LAW

The applicant complained that he had been denied a hearing affording him the guarantees required by Article 6 of the Convention, the relevant part of which provides:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

The Government raised a preliminary objection alleging that the application was incompatible ratione materiae with the provisions of the Convention. They submitted that the proceedings in issue were of a disciplinary nature and did not involve the determination of a criminal charge. Referring to the principles established by the Engel and Others v. the Netherlands judgment (8 June 1976, Series A no. 22), the Government observed that the nature and the severity of the applicable penalty and its consequences for the applicant were not such as to bring Article 6 of the Convention into play. They noted that the determination had not resulted in the applicant’s being deprived of his liberty, bearing in mind that he was a member of the armed forces.

The applicant contested those arguments. He submitted that the penalty meant that he had been abnormally confined to quarters and thus deprived of his liberty.

The Court reiterates that its settled case-law requires it to have regard to three criteria in ascertaining whether there is a “criminal charge”: the legal classification of the measure in question in national law, the very nature of the measure, and the nature and degree of severity of the “penalty” (see, as the most recent authority, the Escoubet v. Belgium judgment [GC], no. 26780/95, § 32, ECHR 1999-VII).

With regard to the first of those criteria, the Court notes that the offence of which the applicant was accused was governed by provisions which Portuguese legislation made the province of disciplinary law. Classification in domestic law is not, however, decisive for the purposes of the Convention, regard being had to the autonomous and substantive meaning to be given to the term “criminal charge” (see the Escoubet judgment cited above, § 33).

As regards the exact nature of the measure imposed on the applicant, the Court considers that the most suitable category is that of disciplinary penalties, which are generally designed to ensure that members of particular groups, in this case servicemen, comply with the specific rules governing their conduct (see the Weber v. Switzerland judgment of 22 May 1990, Series A no. 177, p. 18, § 33).

As to the nature and degree of severity of the measure, the Court reiterates that, by their ordinary meaning, offences under the criminal law are those which render their perpetrators liable to sentences intended in particular to have a deterrent effect and which ordinarily entail the deprivation of liberty and the imposition of a fine “except those [offences] which by their nature, duration or manner of execution cannot be appreciably detrimental” (see, with regard to deprivation of liberty, the Engel and Others judgment cited above, pp. 34-35, § 82).

In the instant case, the applicant was given five days’ detention, while the maximum sentence that could be imposed was only ten days. However, in the Court’s view, that penalty did not amount to a deprivation of liberty, since, in accordance with the wording of Article 26 the Military Disciplinary Regulations, the applicant was not locked up during the term of the penalty, but continued to discharge his military duties virtually as usual. The penalty imposed on the applicant was thus similar to the “simple arrest” regime that was considered in the Engel case, in which the Court held that Article 6 of the Convention was inapplicable (see the Engel and Others judgment, cited above, p. 36, § 85).

In conclusion, the nature and severity of the penalty imposed on the applicant was not such as to warrant its being classified as a “criminal” penalty for the purposes of Article 6 § 1 of the Convention. That provision is therefore not applicable in its criminal limb and the applicant has made no allegation that any civil right has been violated in the present case.

The Court therefore upholds the Government’s objection on the ground of incompatibility ratione materiae and dismisses the application in accordance with Article 35 § 3 of the Convention.

For these reasons, the Court unanimously,

Declares the application inadmissible.

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