CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 22 octobre 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                           Application No. 26304/95                       by Leif LINDQVIST                       against Sweden           The European Commission of Human Rights (Second Chamber) sitting in private on 22 October 1997, the following members being present:                Mrs    G.H. THUNE, President            MM     J.-C. GEUS                  G. JÖRUNDSSON                  A. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA                  A. ARABADJIEV              Ms     M.-T. SCHOEPFER, Secretary to the Chamber           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 30 August 1994 by Leif Lindqvist against Sweden and registered on 25 January 1995 under file No. 26304/95;         Having regard to the reports provided for in Rule 47 of the Rules of Procedure of the Commission;         Having regard to the observations submitted by the respondent Government on 19 November 1996 and the observations in reply submitted by the applicant on 12 February 1997;         Having deliberated;         Decides as follows:   THE FACTS         The applicant, a Swedish citizen, was born in 1954 and resides in Huddinge.   Before the Commission he is represented by Mr Krister Jansson, a lawyer practising in Stockholm.         The facts of the case, as submitted by the parties, may be summarised as follows.         In June 1993 the applicant's eleven year old daughter, A, at the time placed with foster parents, told her foster father that the applicant had abused her sexually.   The foster father contacted the social authorities which, in their turn, reported to the police.         The police interviewed A on four occasions, on 23 and 30 June, 19 August and 1 September 1993.   A stated that she had been sexually abused by the applicant several times between 1988 and 1993.   The interviews were recorded on video tape.   Neither the applicant nor his defence counsel was present during the interviews.         On 7 October 1993 the public prosecutor notified the applicant, in accordance with Chapter 23, Section 18 of the Code of Judicial Procedure (Rättegångsbalken), of the suspicions against him.   The applicant and his counsel received a copy of the report of the preliminary investigation (förundersökningsprotokoll) and were given an opportunity to submit observations and request additional interviews and other investigative measures.   No such request was made, however.         On 21 October 1993 the applicant was indicted for aggravated sexual abuse of a minor (grovt sexuellt utnyttjande av underårig).         The District Court (tingsrätten) of Huddinge heard the case on 1, 2, 3 and 8 November and 15 December 1993.   The applicant denied the charges.   The video-taped police interviews of A were shown during the hearings.   Video-taped interviews of A's step-brother were also shown. The court further heard evidence from A's foster-father, her nursery school teacher, A's mother - the applicant's wife - and, at the applicant's request, his sister and a friend of the family.   Two experts appointed by the court also gave evidence during the hearings. The first expert, a physician who had examined A on 1 July 1993, concluded that certain physical changes to A's genitals and anus strongly indicated that she had been sexually abused.   The second expert, a psychologist who had met A on three occasions, stated that A appeared to be telling the truth.   At no point during the proceedings in the District Court did the applicant or his counsel request that A be heard.         By judgment of 22 December 1993, the District Court convicted the applicant and sentenced him to two and a half years' imprisonment.         The applicant appealed to the Svea Court of Appeal (Svea hovrätt).   At the applicant's request, the court appointed a new counsel for him.   On 31 January 1994 the new counsel, challenging the reliability of A's statements, requested that the public prosecutor re- examine A.   The request was denied by the public prosecutor on 2 February 1994.   He noted that A had already been asked the questions the counsel wanted to put to her and considered that A, who was mentally retarded and had been greatly tormented by the previous interviews, should not be subjected to further questioning.   By decision of 4 February 1994, the Court of Appeal reached the same conclusion.       The Court of Appeal held hearings in the case on 9, 10 and 15 February 1994.   The appellate court heard evidence from several of the witnesses already examined by the District Court.   It also heard the physician who had examined A.   The statements made by the psychologist, as recorded in the District Court judgment, were read out in court.   Again, A's evidence was put before the court through the showing of the video-taped police interviews.   The applicant's counsel reiterated the request for a re-examination of A, maintaining that she should be asked about, inter alia, how often the alleged acts had occurred and what had actually happened on these occasions.   The counsel did not object to A's evidence being presented to the Court of Appeal by way of video recordings, but claimed that the applicant had an unconditional right under the Convention to have additional questions put to her.   On 10 February the Court of Appeal again rejected the request.   It noted that no request for additional interviews had been made upon receipt of the preliminary investigation report and considered that a re-examination of A would not add anything of importance to the investigation in the case as A had already on numerous occasions replied to the questions indicated by the applicant's counsel.         On 28 February 1994 the Court of Appeal upheld the District Court's judgment.   The appellate court noted that the video-taped police interviews of A constituted the main evidence in the case but that A's statements had to be assessed with caution, as she had not appeared before the courts.   Thus, the statements had to be considered in the light of the other evidence presented to the court and of the circumstances in which they had been given.   The Court of Appeal found that certain details accounted for by A and her demeanour during the interviews indicated that her statements to the police were true.   In this connection, the court also had regard to the conclusions made by the psychologist.   Moreover, A's statements corresponded well to what she had told her foster-father.   The court further found the medical evidence in the case to show that A had been subjected to sexual acts. The court concluded that A's statements were reliable and thus based its conviction on them.         The applicant appealed to the Supreme Court (Högsta domstolen). Invoking the Convention, he claimed that he had not been given a fair trial as he had been refused a re-examination of A.   He requested the Supreme Court to order the public prosecutor to re-examine her.         On 7 April 1994 the Supreme Court refused leave to appeal.     COMPLAINTS         Invoking Article 6 paras. 1 and 3 (d) of the Convention, the applicant claims that he did not have a fair trial.   He submits that, as the public prosecutor and the Court of Appeal refused his request for a re-examination of A, he was not given an opportunity to put questions to her.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 30 August 1994 and registered on 25 January 1995.    On 4 September 1996 the Commission decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure.         The Government's written observations were submitted on 19 November 1996.   The applicant replied on 12 February 1997.     THE LAW         Invoking Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention, the applicant claims that he did not have a fair trial. He submits that, as the public prosecutor and the Court of Appeal refused his request for a re-examination of A, he was not given an opportunity to put questions to her.         Article 6 (Art. 6) reads, in so far as relevant, as follows:         "1.   In the determination of ... any criminal charge       against him, everyone is entitled to a fair ... hearing ...       ...       3.   Everyone charged with a criminal offence has the       following minimum rights:       ...       d.   to examine or have examined witnesses against him and       to obtain the attendance and examination of witnesses on       his behalf under the same conditions as witnesses against       him;       ..."         The Government submit in the first place that it may be questioned whether the applicant has exhausted domestic remedies taking into account that his counsel did not request to be present during the police interviews of A and that no request for further questioning of her was made prior to the appeal against the conviction by the District Court although the applicant had been given an opportunity to make such a request when being served a copy of the report of the preliminary investigation.   In the alternative, the Government question whether the applicant, in the circumstances, must not be regarded as having waived his right to confront A or whether he can at all claim to be a victim of a violation of the Article invoked.         Should the above submissions not be accepted, the Government maintain that the application is manifestly ill-founded.   Reiterating that the applicant failed to request further questioning when given an opportunity to do so, the Government further point to the fact that the applicant's conviction was not based solely on A's statements but also on other evidence which corroborated the statements.   Moreover, the Court of Appeal expressly stated that A's statements had to be assessed with particular care and thus showed special diligence in examining the video tapes in question.   However, the fact that the statements were invoked in the form of video tapes gave the court a much better opportunity to assess their value as evidence than if other techniques of reproducing statements had been employed.   The Government also claim that the interests of the applicant had to be balanced against those of A.   In this context, the inconvenience for A to undergo further questioning several months after the police interviews should be taken into account, especially in view of her mental retardation.   Moreover, as she had been repeatedly asked the kind of questions the applicant wanted to pose, it was less than likely that further questioning would give any new information.    The applicant submits that certain contradictions in his daughter's statements came to light at the District Court trial and that he therefore considered further questioning of her to be necessary.   He exhausted domestic remedies by appealing to the Supreme Court.   He did not waive his rights. Moreover, he is a victim of a violation of Article 6 (Art. 6) as he was denied the minimum right of examining A.   As to the merits of the case, the applicant asserts that his conviction was based, in all essential parts, on A's statements.   These statements were contradictory and, in some respects, contrary to other information in the case.   Moreover, they were given by a mentally retarded girl.   Against this background, the supporting evidence adduced by the prosecutor had to be of particular strength.   According to the applicant, this was not the case.   Furthermore, another interview of A could not be considered to have been particularly onerous for her, bearing in mind that she had already been questioned on four occasions.   Also, the possible harm to her had to be balanced against the risk of the applicant being wrongfully convicted.   The Government's contention that no new information would be forthcoming at a supplementary questioning of A is, in the applicant's view, pure speculation.         As regards the Government's preliminary objections, the Commission notes that the applicant did not request to put questions to A during the pre-trial stage of the criminal proceedings, nor did he make such a request before the District Court.   The Commission recalls, however, that in his appeal to the Court of Appeal, he asked for a re-examination of A.   Reiterating that request during the subsequent hearing, he claimed that he had an unconditional right under the Convention to question A.   The Court of Appeal considered the issue and decided to reject the request.   In his further appeal to the Supreme Court, the applicant again invoked the Convention, maintaining that he had been denied a fair trial as the requested re-examination had been refused.   In these circumstances, the Commission finds that the applicant provided the Swedish courts with the opportunity to prevent or to put right the violation alleged by him.   The objection based on a failure to exhaust domestic remedies under Article 26 (Art. 26) of the Convention is therefore unfounded.   For the same reasons, the Commission finds that the applicant did not waive his right to question A and that he can claim, under Article 25 (Art. 25), to be a victim of a violation of Article 6 (Art. 6).         As to the merits of the complaint, the Commission first notes that the guarantees in para. 3 (d) of Article 6 (Art. 6-3-d) are specific aspects of the right to a fair trial set forth in para. 1 of this Article.   Consequently, the Commission will consider the complaints under the two provisions taken together (cf. Eur. Court HR, Asch v. Austria judgment of 26 April 1991, Series A no. 203, p. 10, para. 25, and Lala and Pelladoah v. the Netherlands judgments of 22 September 1994, Series A no. 297, p. 12, para. 26, and p. 33, para. 33).         The Commission recalls that the admissibility of evidence is primarily governed by the rules of domestic law, and that, as a rule, it is for the national courts to assess the evidence before them.   The task of the Convention organs is to ascertain whether the proceedings in their entirety, including the way in which evidence was taken, were fair (cf. Asch v. Austria judgment, ibid., p. 10, para. 26, and Eur. Court HR, Edwards v. the United Kingdom judgment of 16 December 1992, Series A no. 247-B, pp. 34-35, para. 34).    All evidence must normally be produced in the presence of the accused at a public hearing with a view to adversarial argument.   However, the use in evidence of statements obtained at the stage of the police inquiry and the judicial investigation is not in itself inconsistent with paragraphs 3 (d) and 1 of Article 6 (Art. 6-3-d, 6-1), provided that the rights of the defence have been respected.   As a rule, these rights require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him either when he was making his statements or at a later stage of the proceedings (Eur. Court HR, Saïdi v. France judgment of 20 September 1993, Series A no. 261-C, p. 56, para. 43).         As to the notion of "witness", the Commission recalls that although A did not testify at a court hearing, she should, for the purposes of Article 6 para. 3 (d) (Art. 6-3-d) of the Convention, be regarded as a witness - a term to be given its autonomous interpretation - because her statements, as recorded by the police, were used in evidence by the domestic courts (cf. Asch v. Austria judgment, ibid., p. 10, para. 25).         The Commission further recalls that Article 6 (Art. 6) does not grant the accused an unlimited right to secure the appearance of witnesses in court.   It is normally for the national courts to decide whether it is necessary or advisable to hear a witness (cf. Eur. Court HR, Bricmont v. Belgium judgment of 7 July 1989, Series A no. 158, p. 31, para. 89, and Baegen v. the Netherlands, Comm. Report 20.10.94, para. 74, Eur. Court HR, Series A no. 327-B, p. 44).         The Commission notes that it appears from the Court of Appeal's judgment that it based its finding of guilt mainly on the statements made by A.   It must therefore be examined whether the applicant was provided with an adequate opportunity to exercise his defence rights within the meaning of Article 6 (Art. 6) of the Convention in respect of the evidence given by her.         The Commission recalls that A never appeared before the courts. Instead, her evidence was given to the police at four interviews, the video recordings of which were shown during the court hearings. Neither the applicant nor his counsel asked questions, directly or indirectly, to A.   However, when served a copy of the report of the preliminary investigation, they had been given an opportunity to request additional questioning of her.   No such request was made at that time.   Instead, it was not until the applicant, represented by new counsel, appealed to the Court of Appeal that a request for a re-examination of A was made.         The Commission further recalls that, in rejecting the applicant's request, the public prosecutor and the Court of Appeal considered that a re-examination of A would not add anything of importance to the investigation in the case as A had already on numerous occasions replied to the questions indicated by the applicant's counsel.   The public prosecutor further considered that A had been greatly tormented by the previous interviews and should not be subjected to further questioning.         The Commission has regard to the special features of criminal proceedings concerning sexual offences.   Such proceedings are often conceived of as an ordeal by the victim, in particular when the latter is unwillingly confronted with the defendant.   In the assessment of the question whether or not in such proceedings an accused received a fair trial, account must be taken of the right to respect for the victim's private life.   Therefore, the Commission accepts that in criminal proceedings concerning sexual abuse certain measures may be taken for the purpose of protecting the victim, provided that such measures can be reconciled with an adequate and effective exercise of the rights of the defence (Baegen v. the Netherlands, ibid., para. 77, p. 44).         Notwithstanding that it would have been preferable if questions posed not only by the police but also by the defence had been put to A, the Commission finds that the decision of the Court of Appeal not to re-examine A cannot be regarded as arbitrary or unreasonable.   In so finding, the Commission takes into account the sensitive nature of the case and the problems A apparently experienced.   It also notes that the applicant failed to avail himself of the opportunity to request that additional questions be put to A in October 1993, about a month after the last police interview and thus at a time when a further interview was likely to be less disturbing to A than during the appeal proceedings several months later.   He did not make any such request before the District Court either.   Further regard should be had to the Court of Appeal's finding that A, during the police interviews, had already replied to the questions indicated by the applicant's counsel. Furthermore, the applicant had the opportunity to challenge A's statements and her reliability as well as the other evidence against him in the course of the criminal proceedings.         The Commission recalls that evidence obtained from a witness under conditions in which the right of the defence cannot be secured to the extent normally required by the Convention should be treated with extreme care (cf. Eur. Court HR, Doorson v. the Netherlands judgment of 26 March 1996, Reports 1996-II, No. 6, p. 472, para. 76), Noting the express declaration of the Court of Appeal that A's statements had to be assessed with caution as she had not appeared before the courts, the Commission is satisfied that the necessary care was applied in the evaluation of those statements.         In addition, A's statements were not the only evidence on which the applicant's conviction was based.   The courts also had regard to evidence given by other witnesses, including two experts witnesses - a physician and a psychologist - who had examined A.   In its judgment of 28 February 1994, the Court of Appeal considered, after a thorough examination of the available evidence, inter alia that A's statements corresponded well to what she had told her foster-father and that the medical evidence in the case showed that she had been subjected to sexual acts.   These items of evidence were thus found to corroborate her statements.         In these circumstances, the Commission considers that the criminal proceedings against the applicant, considered as a whole, cannot be regarded as unfair.         It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION INADMISSIBLE.            M.-T. SCHOEPFER                        G.H. THUNE             Secretary                            President       to the Second Chamber                of the Second Chamber