JOINT DISSENTING OPINION OF JUDGES PEKKANEN, WILDHABER AND MAKARCZYK

( Translation )

We concur in holding that Article 6 § 1 applied in the instant case, but – unlike the majority – we consider that there has been a breach of it.

The applicant was charged with murder on 23 June 1988 following a killing on 14 April 1988 in the north of the Central African Republic. He was detained pending trial from 24 May to 21 July 1988. That charge was declared void on 9 October 1989 on the ground of a procedural irregularity. The suspicions concerning the applicant nevertheless remained. On 6 May 1992, in the light of the investigations into the same killing, he was again charged with murder. On 11 May 1994 he was convicted and sentenced to four years’ imprisonment, with one year suspended. An appeal on points of law against that judgment is still pending.

Between those two charges the applicant was summoned to appear as a witness on 12, 19 and 26 September 1990 in connection with a judicial investigation in respect of two soldiers implicated in the same events of 14 April 1988. He attended on each occasion but refused to take the oath and give evidence. Had he taken the oath, he would have committed himself to telling the whole truth and nothing but the truth. As he refused to take the oath, he was ordered on three occasions to pay fines totalling FRF 6,500.

It is true that a witness’s obligation to take the oath serves to ensure that any statements made to the judge are truthful. In the circumstances of the case, however, we consider that the applicant must in fact have felt that he would be forced to give evidence once he took the oath. In our view, this was not so much “a degree of coercion” (see paragraph 47 of the judgment) as “definite coercion”. The Court has held on several occasions that the right of any person charged to remain silent and not to incriminate himself lies at the heart of the notion of a fair procedure under Article 6 of the Convention. That right is at stake in the present case. By insisting on the applicant’s obligation to take the oath, without giving him an opportunity to explain the reasons for his refusal, the investigating judge put him in the position prohibited by Article 6 § 1 of the Convention. He must in reality have felt forced to give evidence that could incriminate him. It is of little consequence, in the circumstances of the case before us, whether he was under that obligation as a person charged or as a witness.

The applicant did not give evidence and therefore did not incriminate himself, but he preserved the rights of the defence only at the expense of being ordered to pay fines.

For these reasons we conclude that there has been a breach of Article 6 of the Convention.

[1] . This summary by the registry does not bind the Court.

[2] Notes by the Registrar

. The case is numbered 82/1996/671/893. The first number is the case’s position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case’s position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[3] . Rules of Court A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol. They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.

[4] . Note by the Registrar . For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1997), but a copy of the Commission’s report is obtainable from the registry.