CEDH · CASELAW;CLIN;ENG — 14 octobre 2010

.s3ABFC313 { font-size:10pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s5CB9E8AB { margin-top:12pt; margin-bottom:0pt; text-align:justify; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 134 October 2010 Brusco v. France - 1466/07 Judgment 14.10.2010 [Section V] Article 6 Criminal proceedings Article 6-1 Fair hearing Criminal conviction based on statement made by defendant in police custody after swearing oath normally reserved for witnesses: violation   Article 6-3 Rights of defence Failure to inform person in police custody before questioning of right not to incriminate himself and to remain silent: violation   Facts – After being attacked by two hooded individuals in 1998, a man lodged a complaint against the applicant, and one of the presumed aggressors also testified against him. The applicant was arrested and taken into police custody. Before the police questioned him, they made him take the oath witnesses were required to take. He confessed to having hired two men to “scare” the victim, but denied having asked them to use physical violence. He was placed under investigation and remanded in custody. In 2002 he was sentenced to imprisonment, and that judgment was subsequently upheld on appeal. The Court of Cassation dismissed his further appeals. Law – Article 6 §§ 1 and   3: The applicant had been in police custody when he was made to swear an oath. At the time it was possible to place an individual in police custody even without substantial, consistent evidence or reasonable suspicion that he or she had committed an offence. In this case, however, the victim had lodged a complaint against the applicant and one of the presumed aggressors had identified him as the mastermind behind the operation. So the authorities had had reason to suspect that he had been involved in the offence, and the argument that he had been questioned as a mere witness was unconvincing. Furthermore, the applicant’s arrest and placement in police custody could have had, and indeed did have, serious repercussions on his situation, as he had subsequently been placed under investigation and remanded in custody. So, at the time when the applicant had been required to take an oath while in police custody, criminal charges had already been brought against him and he should accordingly have had the right to remain silent and not to incriminate himself. The statements he had made under oath had been used against him by the courts to establish the facts and to convict him. The obligation to take an oath before giving evidence had amounted to a form of pressure on him, particularly in view of the threat of criminal proceedings were he to be found to have committed perjury. The Court noted that the law had changed in 2004 and that the obligation to swear an oath and answer questions was no longer applicable to people placed in police custody under a warrant issued by an investigating judge. Furthermore, the applicant does not appear to have been informed at the start of the interview that he had the right to remain silent, not to answer any questions or to answer only those questions he wished to answer. And as he had been allowed the assistance of a lawyer only after twenty hours in police custody, his lawyer had been unable to inform him of his rights or to assist him when he was questioned, as required under Article   6. The result had been an infringement of his right to remain silent and not to incriminate himself. Conclusion : violation (unanimously). Article 41: EUR 5,000 in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes