CASE OF SERVES v. FRANCE
No violation of Art. 6-1;No violation of Art. 6-1+6-3-b;Not necessary to examine Art. 10
C. Russo;John Freeland;R. Pekkanen
7. Mr Paul Serves is a regular officer in the French army and at the material time held the rank of captain. He was in command of the first company (“the company”) of the 2nd Foreign Parachute Regiment (“2nd Para”) and was based in the Central African Republic. 8. On 5 April 1988 the company set off on a “provincial tour” in the Awajaba region in the north of the Central African Republic. On 11 April the applicant called together the heads of platoon and told them that poachers had been reported to him in the presidential reserve and Bamingui-Bangoran National Park and that they were to carry out an “unofficial” investigation mission. He designated two areas; one platoon of the company, under the applicant’s command, was to investigate in one of them and a second platoon, under the command of Lieutenant C., was to investigate in the other. A third platoon was to relieve the second after forty-eight hours. The applicant said that any poachers encountered should be intercepted and, if they fled, should if necessary be fired on after a warning had been given. The operation began on the morning of 13 April. On 14 April 1988 a patrol from the second platoon, commanded by Staff Sergeant B., came upon two natives who fled on seeing them. Staff Sergeant B. fired two shots, wounding one of the fugitives in the leg. On hearing of the incident from the Staff Sergeant, Lieutenant C. went to the scene with the platoon’s medical orderly, Corporal J. The injured man was treated and taken to the bivouac, where Lieutenant C. ordered Corporal D. to dig a grave. An hour after that had been done, and after being questioned, the captive, on Lieutenant C.’s orders, was dispatched by means of five shots fired by Corporal D. and then buried. 9. The applicant was told of the incident on 15 or 16 April 1988 and ordered his men to remain silent. They returned to their camp at Bouar on 21 April. In his report on the “provincial tour” the applicant made no mention of any incident. 10. When questioned on 22 April 1988 by Lieutenant-Colonel Champy, the commanding officer of the French operational assistance units (“the EFAO”) in Bouar, who had heard rumours of an incident during the tour, the applicant and Lieutenant C. said that they had found a native’s body, had buried it and had not reported the matter out of discretion. They drew up reports relating this version of the events. The Central African authorities were informed on 23 April and no further inquiries were made. 11. On 13 May 1988, however, Colonel Larrière, the commanding officer of the EFAO in the Central African Republic, was told that evidence given to the Central African police implicated his soldiers. He therefore decided to recommence the inquiry and on 15 May personally interviewed the applicant, Lieutenant C., Staff Sergeant B. and Corporal J. The applicant and Lieutenant C. confirmed the content of their original reports. As their statements differed in some respects, however, Colonel Larrière interviewed Lieutenant C. again. The lieutenant then admitted that Staff Sergeant B. had opened fire on the poacher, who had been injured in the leg and had received medical treatment at the scene of the incident. He also said that the captive had died from his injuries shortly after being taken to the bivouac and that he himself had ordered that he should be buried at once. 12. On his return to Bangui with the applicant and Lieutenant C., Colonel Larrière had the matter reported to the Army Chief of Staff. On 17 May 1988 the Chief of Staff told the colonel that he had been in touch with the prosecutor at the Paris Military Court, that an application should be made to the EFAO military police – a gendarmerie detachment assigned during operations to a large unit or base to carry out general policing and criminal-investigation duties – and that the company was to be relieved as soon as possible. 13. In a commanding-officer report of 20 May Colonel Larrière said that he believed Lieutenant C.’s latest statement on the circumstances of the poacher’s death. He also set out the facts described above (see paragraphs 8–12), concluded that the applicant was “wholly” responsible and asked for disciplinary penalties to be imposed on him (replacement as head of his unit and a reprimand by the Minister of Defence) and on Lieutenant C. (forty days’ arrest). 14. The soldiers involved in the case were sent back to France on 21 May 1988. There, the applicant, Lieutenant C., Staff Sergeant B., Corporal J. and the other two heads of platoon in the unit were questioned by General Guignon, the commanding officer of the 11th Parachute Division and the 44th Territorial Army Division. In his commanding-officer report of 25 May 1988 to the Army Chief of Staff he mentioned a rumour that the poacher had been “finished off” by Corporal D. and concluded that Lieutenant C. and the applicant bore the responsibility, which was “weighty” in the latter’s case. General Guignon questioned the applicant, Staff Sergeant B., Corporal J. and Lieutenant C. again. Lieutenant C. admitted that Corporal D. had, on his orders, shot the injured man in order to “put an end to the suffering of a dying man”. This was later confirmed by the corporal. A commanding-officer report of 1 June gives an account of this and concludes: “the responsibility lies mainly … with the two officers in question”. 15. On 18 May 1988 Colonel Larrière had informed the commandant of the Bangui military police of the facts of the case. The commandant had opened a preliminary inquiry and on 18 and 20 May 1988 sent messages to the prosecutor at the Paris Military Court, reading as follows: “First: investigation being carried out by commanding officer of Bangui military police detachment (CAR) assisted by Bangui and Bouar military police personnel [;] pending proceedings do not require soldiers in question to be detained here in view of line taken by Head of State of Central African Republic. Second: all personnel involved will have made statements before returning to France. Third: personnel concerned will depart for Bastia with their unit on Saturday 21 May 1988 ...” and “Further to telephone call today 20 May 1988, names of soldiers implicated in the case are (1) Serves, Paul, Captain. (2) [C.], Lieutenant. (3) [B.], Staff Sergeant. (4) [J.], Corporal. Unable at present to give you detailed account of facts. Information currently being sought. Please ask CEMA [Army Chief of Staff] to make arrangements with EFAO Bangui for soldiers in question to be conveyed to Paris. Request message confirming instructions you gave by telephone and possibly also fresh orders – even at once orally.” 16. On 21 May 1988 the commandant of the military police interviewed Colonel Larrière, who had given him a copy of his report of 20 May. An official report of 21 May, to which the colonel’s report and the record of his interview were annexed, brought the investigation to an end. 17. On an application of 20 May 1988 by the prosecutor at the Paris Military Court an investigation was begun. On 24 May 1988 the applicant was charged with manslaughter, and on 23 June 1988 a murder charge was substituted. He was detained pending trial from 24 May to 21 July 1988. Lieutenant C. and Corporal D. were also charged with murder, and three other legionnaires, from the company’s second platoon, were charged with aiding and abetting murder; Corporal J. was charged with manslaughter and Staff Sergeant B. with wounding with intent or wilful violence or assault, entailing or not unfitness for work for not more than eight days. 18. On 9 October 1989, on an application by the prosecutor, the First Indictment Division of the Paris Court of Appeal, exercising jurisdiction as the body supervising judicial investigations by the Military Court, gave the following judgment: “... The body supervising the judicial investigation ... Notes that the investigation was commenced on an application of 20 May 1988 made without the opinion of the Minister of Defence or of the authority referred to in Article 4 of the Code of Military Criminal Procedure having first been obtained as required by Article 97 of that Code. Holds that this irregularity, seeing that the offenders were not caught in the act, had the effect of infringing the rights of those against whom proceedings have been brought, and that at the same time they were also not afforded a fair hearing as some of the evidence from the preliminary inquiry had not been placed in the file. Consequently declares void the application of 20 May 1988 for a judicial investigation and the steps subsequently taken in the proceedings. Declares that the preliminary inquiry and the messages of [18] and 20 May 1988 remain effective. ...” 19. In response to a request from the prosecutor on 21 October 1989, the Minister of Defence issued an opinion on 10 November 1989 in which he stated that the facts appeared to constitute a serious crime (crime) and that criminal proceedings should be brought. 20. On an application of 13 March 1990 by the prosecutor (which referred to the official report of 12 May 1988, the messages of 18 and 20 May 1988, General Guignon’s commanding-officer reports of 25 May and 1 June 1988 and the Minister of Defence’s opinion), a judicial investigation, for murder, was begun in respect of Lieutenant C. and Corporal D. only. They were charged on 19 April 1990. 21. In connection with that investigation, the applicant was summoned to appear as a witness before the military investigating judge three times (at hearings on 12, 19 and 26 September 1990). On each occasion he attended but refused to take the oath and give evidence. 22. At those hearings the investigating judge ordered Mr Serves to pay fines of 500 French francs (FRF), FRF 2,000 and FRF 4,000 respectively for refusing to take the oath and give evidence. 23. The applicant appealed against those orders to the First Indictment Division of the Paris Court of Appeal. His main argument in his pleadings was that as, in its judgment of 9 October 1989, the Division had expressly declared that the preliminary inquiry and the messages of 18 and 20 May 1988 on which his 1988 charge had been based remained effective, there was incriminating evidence against him such as enabled him to be charged, so that he could not be examined as a witness without his defence rights being infringed and a breach of Article 6 of the Convention and Article 105 of the Code of Criminal Procedure being committed. He further maintained that he had offered the same explanation for his refusal to the investigating judge at the first interview; this is not, however, mentioned in the records of his interviews. 24. On 29 October 1990 the Indictment Division of the Paris Court of Appeal upheld the orders in issue. It gave the following grounds in its judgment: “The application for a judicial investigation and the subsequent steps in the investigation were declared void in the judgment of 9 October 1989 of the body supervising the judicial investigation, and it follows from Article 173 of the Code of Criminal Procedure that no information against parties to the proceedings may be derived from documents declared void, ‘which have been removed from the investigation file and filed in the registry’, at peril of committing criminal malfeasance in public office in the case of judges and on pain of disciplinary proceedings being taken in the case of defence counsel. Consequently, even if the witness Paul Serves is of the view that his counsel’s reference to documents declared void does not adversely affect him, the body supervising the investigation cannot take the same view without contravening Article 173 cited above, thereby rendering its members liable to prosecution as provided in that Article. The supervisory body consequently declines to look at the documents and steps in the investigation that have been declared void. Since Paul Serves was not referred to by name in the application [of 13 March 1990], the investigating judge was entitled to examine him as a witness, provided that Article 105 of the Code of Criminal Procedure was complied with. Although Captain Serves’s immediate superior, General Guignon, judged that Captain Serves had committed faults that made him liable and were likely to attract a disciplinary penalty, it was for the investigating judge to assess whether the evidence obtained during the preliminary investigation and the inquiry by commanding officers, which are the only documents from the investigation concerning Captain Serves, amounted to substantial, consistent evidence of his guilt. By Article 105 of the Code of Criminal Procedure, the investigating judge had to take his decision without deriving information from the documents that had been declared void. The records of the applicant’s interviews show that he refused to take the oath without offering any explanation for this unusual conduct. The investigating judge was thus not put in a position to reassess whether Article 105 of the Code of Criminal Procedure was applicable in the light of hearing the witness’s explanation for this procedural difficulty. As matters stand, the body supervising the judicial investigation cannot, without going beyond the scope of the application that has been made to it, consider whether or not Paul Serves should be heard as a witness. The supervisory body finds that the investigating judge complied with Article 108 of the Military Criminal Code and Article 109 of the Code of Criminal Procedure. ...” 25. The applicant lodged an appeal on points of law on 31 October 1990. He maintained, inter alia, that there had been a breach of Article 6 of the Convention and of Article 105 of the Code of Criminal Procedure. 26. The Court of Cassation (Criminal Division) dismissed the appeal in a judgment of 23 October 1991, on the following grounds: “... In order to justify upholding [the] orders [of 12, 19 and 26 September 1990], the Indictment Division, after stating that it could not, without contravening Article 173 of the Code of Criminal Procedure, derive information from documents that had earlier been declared void or, without going beyond the scope of the application made to it, consider whether or not Serves should be heard as a witness, noted that he had refused to take the oath without giving any reason and that the investigating judge had thus not been put in a position to assess whether Article 105 of the Code cited above was applicable. In view of these wholly adequate reasons, the Indictment Division provided a legal basis for its judgment ...” 27. On 10 November 1992 the Treasury bailiff collected the fines plus costs and interest, amounting in all to FRF 6,761. 28. On 6 May 1992 the applicant was again charged with murder. 29. On 28 February 1994 the First Indictment Division of the Paris Court of Appeal indicted Corporal D. for murder, and Lieutenant C. and the applicant for aiding and abetting murder. On 11 May 1994 the Paris Military Court convicted and sentenced Corporal D. to one year’s imprisonment, suspended, Lieutenant C. to three years’ imprisonment, with one year suspended, and the applicant to four years’ imprisonment, with one year suspended. An appeal on points of law by the applicant and Lieutenant C. against the judgments of 28 February 1994 and 11 May 1994 is still pending. 30. Article 108 of the Military Criminal Code provides: “The investigating judge shall summon, or have brought before him, at no cost, by a police officer, any person whose evidence he deems useful. Article 109 of the Code of Criminal Procedure shall apply to a witness who fails to appear or who appears but refuses to take the oath and give evidence ...” 31. Article 109 of the Code of Criminal Procedure provides: “Anyone summoned to be examined as a witness shall be required to appear, to take the oath and to give evidence … If a witness fails to appear, the investigating judge may, on an application by the public prosecutor, have the witness brought before him by the police and order him to pay a fine of FRF 3,000 to FRF 6,000 ... The same penalty may, on an application by the public prosecutor, be imposed on a witness who appears but refuses to take the oath and give evidence. ...” 32. Article 105 of the Code of Criminal Procedure, however, which applies to military criminal proceedings by virtue of Article 103 of the Military Criminal Code, provides: “An investigating judge in charge of an investigation and judges and senior detectives acting at a judge’s request may not, with the aim of frustrating the rights of the defence, examine as witnesses persons against whom there is substantial, consistent evidence of guilt.”