BRANDAO FERREIRA v. PORTUGAL
Inadmissible
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. 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. 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.