CEDH · CASELAW;CLIN;ENG — 20 janvier 2005

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Italy (dec.) - 30598/02 Decision 20.1.2005 [Section III] Article 6 Article 6-3-d Examination of witnesses Conviction essentially based on the testimony of minors subject to sexual abuse to which the accused were not confronted: inadmissible Article 6-1 Fair hearing Refusal to order an appraisal of victims and to examine the defence expert in a case related to accusations of sexual abuse of minors: inadmissible Tribunal established by law Examination of minors by investigating judge with a psychologist who questioned the witnesses alone at one point: inadmissible The applicants were the parents of two underage children and their mother’s partner. Proceedings were brought against them for sexual abuse of the two minors. The children, who were then aged over six and a half, were questioned during the preliminary investigation. The investigating judge carried out the questioning in the presence of child psychologist, who asked the children certain questions. The applicants, their lawyers and the representative of the prosecution service were in a different room, separated by a two-way mirror, from where they could listen to and see the children. Given the difficulty experienced by one of the children in replying to a question, the judge left the courtroom in order to follow the final part of the sitting from behind the two-way mirror. The applicants were committed for trial. The court convicted them of the offences charged. It based its decision on two elements of the prosecution’s evidence: an audiovisual recording of the questioning of the children during the preliminary investigation, and the evidence of persons, examined during the court proceedings, who had been in contact with the children at the time of the alleged offences and in whom the children had confided. The court refused to hear the expert witness for the defence. The applicants were convicted and sentenced to twelve years’ imprisonment. They appealed, criticising the failure to order a psychological report on the victims, and asking that the children be examined and that another hearing be held to question the victims. The appeal court upheld the guilty verdict and dismissed the defence’s requests: the children, whose statements were, taken as a whole, coherent, had already been monitored over a lengthy period by a psychologist from social services and questioned by a psychologist during the preliminary investigation; the applicants had attended that hearing and their lawyers had had an opportunity, through the investigating judge, to ask the children any questions they considered necessary for the defence. The sentence for the mother was reduced to nine years’ imprisonment. The applicants appealed unsuccessfully on points of law. Inadmissible under Article 6: Witnesses for the prosecution : In so far as the children’s testimony constituted practically the only element of proof on which the courts had based their findings of the applicants’ guilt, the latter should have had sufficient opportunity to exercise their defence rights in respect of this evidence against them. With regard to the particular case of criminal procedures concerning sexual abuse, certain measures could be taken in order to protect victims – who frequently experienced distress on account of the confrontation, against their will, with the accused, especially if they were underage, – provided that those measures could be reconciled with the effective and sufficient exercise of the rights of the defence. In the present case, the applicants and their lawyers had been able to follow the questioning of the victims from a separate room through a two-way mirror. Thus, they had been aware of the questions and replies and had observed the children’s behaviour. The applicants’ lawyers had had an opportunity to ask the children any question considered necessary for the defence’s case, through the intermediary of the judge; they had not done so, which could be understood as an implicit approval of the way in which the questioning had been carried out. The authorities had made an audiovisual recording of this investigative measure, which was available for examination by the trial courts. Those courts had thus had an opportunity to observe the prosecution witnesses’ conduct during questioning, and the defendants had had an opportunity to submit their comments in this respect. In those circumstances, the steps taken by the domestic authorities had sufficed to enable the applicants to challenge the witnesses’ statements and credibility during the criminal proceedings: manifestly ill-founded. Refusal to order a psychological report and to question the defence’s expert at the trial : The courts had decided that such investigative measures were immaterial to the proceedings, and had based that refusal on logical and relevant arguments. The court of appeal had stated that the children had been monitored for a considerable period by a psychologist from social services and that there was nothing to suggest that the children were incapable of describing the events they had experienced. Furthermore, the victims had been questioned with the assistance of an expert in child psychology. Consequently, the defendants’ defence rights had not been restricted to the point of infringing the principles of a fair trial: manifestly ill-founded. Tribunal established by law : The applicants complained that, during the questioning of the victims, questions were posed by the psychologist and not by the investigating judge. The Court of Cassation had emphasised that the questioning had been carried out by the judge. The fact that the judge had made use of his right to direct the performance of investigative measures and had decided to use the intermediary of a psychologist to pose certain questions did not alter that conclusion. Admittedly, the judge had moved away during the questioning of one of the children, but this had been a measure aimed at protecting the composure of the underage child being questioned, and the judge had continued to follow the questioning from behind a two-way mirror. For those reasons, it could not be concluded that the investigating judge had not represented a “tribunal established by law”: manifestly ill-founded.   © 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