CEDH · CASELAW;CLIN;ENG — 28 mai 2015

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Slovenia - 41107/10 Judgment 28.5.2015 [Section V] Article 8 Positive obligations Article 8-1 Respect for private life Failure to protect complainant’s personal integrity in criminal proceedings concerning sexual abuse: violation Facts – In 2001, at the age of   14, the applicant was allegedly victim of repeated sexual assaults by a family friend, X. Following a criminal complaint by the applicant’s mother, investigations started in 2003 and criminal proceedings were brought against X in 2007. In 2009, after having held 12   hearings in total, the domestic courts acquitted X of all charges on the ground that some of the applicant’s allegations concerning X’s physical conditions had been disproved by an expert, thus making it impossible, in the domestic courts’ view, to prove X’s guilt beyond reasonable doubt. The State Prosecutor’s appeal against that judgment was rejected in 2010, as was the applicant’s request to the Supreme State Prosecutor for the protection of legality a few months later. Law – Article 8: The Court had to examine whether the respondent State had afforded sufficient protection of the applicant’s right to respect for her private life, and especially for her personal integrity, with respect to the manner in which she had been questioned during the criminal proceedings against her alleged sexual abuser. In so doing, it had to strike a fair balance between the rights of the applicant as a victim called upon to testify in criminal proceedings, protected by Article   8, and those of the defence, namely the right of the accused to call and cross-examine witnesses set out in Article   6 §   3   (d). Unlike the position in other similar cases previously examined by the Court, which had all been brought by the accused persons, in the present case the Court had to examine this issue from the perspective of the alleged victim. In the instant case, the interests of securing a fair trial required X to be provided an opportunity to cross-examine the applicant, especially as the applicant’s testimony at the trial provided the only direct evidence in the case and the other evidence presented was conflicting. However, given that criminal proceedings concerning sexual offences were perceived as a very unpleasant and prolonged experience by the victims, and that a direct confrontation between those charged with sexual abuse and their alleged victims involved a risk of further traumatisation for the victims, personal cross-examination by the defendant had to be subject to the most careful assessment by the national courts. Indeed, several international instruments, including European Union law, provided that certain rights should be granted to victims of, inter alia , sexual abuse, including the duty of the State to protect them from intimidation and repeat victimisation when providing testimony of the abuse. In this respect, the Court noted that the applicant’s questioning had stretched over four trial hearings held over seven months, a lengthy period which in itself raised concerns, especially given the absence of any apparent reason for the long intervals between the hearings. Moreover, at two of those hearings X had personally cross-examined the applicant, continuously contesting the veracity of her answers and addressing her with questions of a personal nature. In the Court’s view, those questions were aimed at attacking the applicant’s credibility as well as at degrading her character. However, despite the duty incumbent on the judicial authorities to oversee the form and content of X’s questions and comments and, if necessary, to intervene, the presiding judge’s intervention had been insufficient to mitigate what had clearly been a distressing experience for the applicant. As to the applicant’s claim that X’s counsel should have been disqualified from the proceedings as he had been consulted by her on the sexual assaults shortly after the alleged events took place, the Court found that the applicable domestic law, or the manner in which it had been applied in the present case, had not taken sufficient account of the applicant’s interests. This was so because the negative psychological effect of being cross-examined by X’s counsel had considerably exceeded the apprehension the applicant would have experienced if she had been questioned by another lawyer. Moreover, any information he might have received from her in his capacity as a lawyer should have been treated as confidential and should not have been used to benefit a person with adverse interests in the same matter. The Court also noted the inappropriateness of the questions put to the applicant by the gynaecologist appointed by the district court to establish whether she had engaged in sexual intercourse at the material time. In this regard, the authorities were required to ensure that all participants in the proceedings called upon to assist them in the investigation or the decision-making process treated victims and other witnesses with dignity and did not cause them unnecessary inconvenience. However, the appointed gynaecologist not only lacked proper training in conducting interviews with victims of sexual abuse, but had also addressed the applicant with accusatory questions and remarks exceeding the scope of his task and of his medical expertise. As a consequence, the applicant had been put in a defensive position unnecessarily adding to the stress of the criminal proceedings. Even though the domestic authorities had taken a number of measures to prevent further traumatisation of the applicant, such measures had ultimately proved insufficient to afford her the protection necessary to strike an appropriate balance between her rights and interests protected by Article   8 and X’s defence rights protected by Article   6 of the Convention. Conclusion : violation (six votes to one). The Court also found unanimously a violation of Article   3 on account of the failure of the authorities of the respondent State to ensure a prompt investigation and prosecution of the applicant’s complaint of sexual abuse. Article 41: EUR 9,500 in respect of non-pecuniary damage. (See also S.N. v. Sweden , 34209/96, 2   July 2002, Information Note   44 ; Aigner v.   Austria , 28328/03 , 10   May 2012; and the Factsheet on Violence against women )   © 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