Corte europea dei diritti dell’uomo
(Sezione III), 20 dicembre 2001
(application
n. 33900/96)
CASE OF P.S. v. GERMANY
This judgment will become final in the circumstances set
out in Article 44 § 2
In the case of P.S. v. Germany,
The European Court of Human Rights (Third
Section), sitting as a Chamber composed of:
Mr I. Cabral Barreto, President,
Mr G. Ress,
Mr L. Caflisch,
Mr R. Türmen,
Mr B. Zupančič,
Mrs H.S. Greve,
Mr K. Traja, judges,
and Mr V. Berger, Section Registrar,
Having deliberated in private on 29 November 2001,
Delivers the following judgment, which was adopted
on that date:
PROCEDURE
1. The case originated in an
application (no. 33900/96) against the Federal Republic of Germany lodged
with the European Commission of Human Rights (“the Commission”) under former
Article 25 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a German national, P.S. (“the applicant”), on
9 July 1996.
2. The German Government (“the
Government”) were represented by their Agent, Mr Stoltenberg, Ministerialdirigent.
The President of the Chamber acceded to the applicant’s request not to have his
name disclosed (Rule 47 § 3 of the Rules of Court). Moreover, the
applicant was, exceptionally, granted leave to represent himself (Rule 36).
3. Relying on Article 6 § 3(d) of the
Convention, the applicant alleged that he had been convicted on the basis of
statements made by a witness whom he had never been given an opportunity to
examine or to have examined.
4. The application was transmitted to
the Court on 1 November 1998, when Protocol No. 11 to the Convention came into
force (Article 5 § 2 of Protocol No. 11).
5. The application was allocated to the
Fourth Section of the Court (Rule 52 § 1). Within that Section, the
Chamber that would consider the case (Article 27 § 1 of the Convention) was
constituted as provided in Rule 26 § 1.
6. By a decision of 6 June 2000, the
Chamber declared the application admissible.
7. On 1 November 2001 the Court changed
the composition of its Sections (Rule 25 § 1). The case was assigned to the
newly composed Third Section (Rule 52 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
8. In the late evening of 29 April
1993, the father of S., born in 1985, laid a criminal information against the
applicant, alleging that the applicant, her private music teacher, had sexually
abused S. during an individual music lesson that afternoon. S. and her mother
were questioned at the local police office on the afternoon of 30 April 1993.
S. was heard by a police officer and confirmed her father’s statements. S.’s
mother stated that S. had been very disturbed after her music lesson and that
she had later confided in her mother.
9. On 10 January 1994 the Künzelsau
District Court, sitting with a single judge, convicted the applicant of having
committed the offence of sexual abuse of a child in concurrence with the
offence of sexual abuse of a charge. He was sentenced to seven months’
imprisonment on probation.
In establishing the relevant facts, the court
relied on the statements made by the mother concerning her daughter’s account
of the relevant events, her behaviour after the music lesson on 29 April 1993
and her character in general, and also on the evidence given by the police
officer who had questioned S. shortly after the offence in April 1993.
The court dismissed the applicant’s request for a
psychological expert opinion regarding the credibility of S.’s statements on
the ground of the court’s own professional experience, acquired as a judge in
family matters, in evaluating statements made by children.
Moreover, the court observed that it had not been
reasonable to hear S. herself, as, according to her mother, she had meanwhile
repressed her recollection of the event in question and would seriously suffer
if reminded thereof. If S. were to be examined, this would not contribute to a
further clarification of the facts, but seriously impair her personal
development.
10. The applicant appealed to the
Heilbronn Regional Court, requesting his acquittal. In the appeal proceedings,
he was assisted by counsel.
11. On 17 March 1995 the
Heilbronn Regional Court dismissed the applicant’s appeal against his
conviction of sexual abuse of a child, but set aside the conviction of sexual
abuse of a charge. The sentence to seven months’ imprisonment on probation was
upheld.
The Regional Court noted that the applicant had
denied having sexually abused S. It found that his guilt could be established
on the basis of the evidence before it, i.e. the statements made by S.’s mother
and the police officer as well as a psychological expert opinion on the
question of S.’s credibility, ordered in the context of the appeal proceedings.
In her report of November 1994, the expert, who had questioned S. in October
1994, confirmed that S.’s statements were credible.
The Regional Court considered that the absence of
S.’s testimony in court constituted a serious shortcoming in the taking of
evidence. In this respect, it noted that the parents had refused to bring their
daughter to court on account of the risk that her state of health would
deteriorate as she suffered from neurodermatitis. According to the Regional
Court, the parents’ refusal was understandable. In this respect, the Regional
Court had regard to a medical certificate confirming the parents’ statements
and the findings of the psychological expert that S.’s
state of health would most likely deteriorate again if she were to be heard
anew on the event in question. Taking into account that S.’s statements had
been reported by her mother and by the police officer and that an expert
opinion on her credibility had been prepared, the Regional Court, considering
the rather trivial nature of the charge and the sentence at stake, reached the
conclusion that S. was to be regarded as a witness out of reach.
12. On 2 August 1995 the
Stuttgart Court of Appeal dismissed the applicant’s appeal on points of law.
13. On 18 January 1996 the
Federal Constitutional Court refused to entertain the applicant’s
constitutional complaint, leaving open the question whether the complaint had
been lodged in time.
II. RELEVANT DOMESTIC LAW
14. The conduct of trial proceedings is
governed by sections 226 to 275 of the Code of Criminal Procedure (Strafprozessordnung).
15. As regards the taking of
evidence, section 244(2) provides that the court shall, proprio motu,
extend the taking of evidence to all facts and evidence important for the decision
in order to determine the truth.
A request for the taking of evidence may be
refused under the statutory conditions of section 244(3) to (6). Pursuant to
section 244(3), second sentence, an application may, inter alia,
be refused if the evidence is unavailable.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF
THE CONVENTION
16. The applicant complained that he
could not put questions to the child S., the main prosecution witness. He
invoked Article 6 § 3 (d) of the Convention according to which
“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;
...”
17. The applicant considered that questioning S. in court would have been important for
establishing the truth.
18. The respondent Government
maintained that in the overall circumstances the requirements of a fair hearing
were met. In particular, the courts used statements, made by the mother and by
the police officer conducting the criminal investigation, on the events of 29
April 1993, and also the mother’s statements as a witness to the child’s
agitated state. The decision not to interrogate the child in court was based on
the fear of damage to her health as a result of emotional stress, as indicated
in a medical certificate. Moreover, the Regional Court had regard to an
expert’s opinion on her psychological examination of the child. The applicant
had sufficient opportunity to comment on these statements and did not, in the
appeal proceedings, request that the child be interrogated in court. According
to the Government, the child did not have to be examined by a psychological
expert at the earliest possible stage of the proceedings.
19. The Court recalls that the
admissibility of evidence is primarily a matter for regulation by national law
and that as a general rule it is for the national courts to assess the evidence
before them. The Court’s task under the Convention is not to give a ruling on
whether statements of witnesses were properly admitted as evidence, but rather
to ascertain whether the proceedings as a whole, including the way in which
evidence was taken, were fair (see the Doorson v. the Netherlands judgment of
26 March 1996, Reports 1996-II, p. 470, § 67; and the Van Mechelen and
Others v. the Netherlands judgment of 23 April 1997, Reports 1997-III,
p. 711, § 50).
20. This being the basic issue, and
also because the guarantees in paragraph 3 of Article 6 are specific aspects of
the right to a fair trial set forth in paragraph 1 (see, amongst many other
authorities, the Van Mechelen and Others judgment cited above, p. 711, § 49),
the Court will consider the applicant’s complaints from the angle of paragraphs
3 (d) and 1 taken together.
21. All the evidence must normally be
produced at a public hearing, in the presence of the accused, with a view to
adversarial argument. There are exceptions to this principle, but they must not
infringe the rights of the defence. As a general rule, the accused must be
given an adequate and proper opportunity to challenge and question a witness
against him, either when he makes his statement or at a later stage (see the
Van Mechelen and Others judgment cited above, p. 711, § 51; and the Lüdi v.
Switzerland judgment of 15 June 1992, Series A no. 238, p. 21, § 49).
22. In appropriate cases, principles of
fair trial require that the interests of the defence are balanced against those
of witnesses or victims called upon to testify, in particular where life,
liberty or security of person are at stake, or interests coming generally
within the ambit of Article 8 of the Convention (see the Doorson judgment cited
above, p. 470, § 70).
23. However, only such measures
restricting the rights of the defence which are strictly necessary are
permissible under Article 6. Moreover, in order to ensure that the accused
receives a fair trial, any difficulties caused to the defence by a limitation
on its rights must be sufficiently counterbalanced by the procedures followed
by the judicial authorities (ibid., p. 471, § 72).
24. Where a conviction is based solely
or to a decisive degree on depositions that have been made by a person whom the
accused has had no opportunity to examine or have examined, whether during the
investigation or at the trial, the rights of the defence are restricted to an
extent that is incompatible with the guarantees provided by Article 6 (see the
van Mechelen and Others judgment cited above, p. 712, § 55; the Doorson
judgment cited above, p. 472, § 76; and the Windisch v. Austria judgment of 27
September 1990, Series A no. 186, p. 11, § 31).
Accordingly, the Court has held in a previous case
that there was a violation of Article 6 § 1, taken together with
Article 6 § 3 (d), noting that “in convicting the applicant in the
instant case [of a sexual offence on a minor] the domestic courts relied solely
on the statements made in the United States before trial and that the applicant
was at no stage in the proceedings confronted with his accusers” (see the A.M.
v. Italy judgment, no. 37019/97, 14 December 1999, §§ 26, 28).
25. In the present case, the applicant
was convicted of having sexually abused S., an eight-year-old girl.
26. The Court notes that at no stage of
the proceedings has S. been questioned by a judge, nor did the applicant have
any opportunity of observing the demeanour of this witness under direct
questioning, and thus from testing her reliability (see the Kostovski v. the
Netherlands judgment of 20 November 1989, Series A no. 166, p. 20, § 42 in
fine; and the Windisch judgment cited above, p. 11, § 29).
27. At first instance, the District
Court, in its decision of 10 January 1994, relied on the statements
made by S.’s mother, who had given evidence concerning her daughter’s account
of the events and her behaviour on 29 April 1993 as well as her character
in general, and of the police officer who had questioned the girl shortly after
the offence in April 1993.
The District Court decided not to hear S. in order
to protect her personal development as, according to her mother, she had
meanwhile repressed her recollection of the event and would seriously suffer if
reminded thereof.
28. Organising criminal proceedings in
such a way as to protect the interests of juvenile witnesses, in particular in
trial proceedings involving sexual offences, is a relevant consideration, to be
taken into account for the purposes of Article 6. However, the reasons given by
the District Court, in its judgment of 10 January 1994, for refusing to
question S. and dismissing the applicant’s request for an expert opinion are
rather vague and speculative and do not, therefore, appear relevant.
29. The Regional
Court, aware of the shortcomings in the taking of evidence, ordered a
psychological expert opinion on S.’s credibility which was eventually prepared
in October 1994, i.e. one and a half years after the relevant events. The
girl was again not heard in court on account of her parents’ refusal, which was
motivated by the possible risk to her health. In addition to the evidence
available at first instance, the Regional Court had at its disposal an expert
opinion on S.’s credibility. However, considering the delay of about eighteen
months between the event in question and the preparation of this opinion, the
Court finds that in the present circumstances, the procedure followed by the
judicial authorities cannot be considered as having enabled the defence to
challenge the evidence of S., reported in court by third persons, one of them a
close relative.
30. Finally, the information given by
the girl was the only direct evidence of the offence in question and the
domestic courts based their finding of the applicant’s guilt to a decisive
extent on S.’s statements.
In this respect, the present case is similar to
the one of A.M. v. Italy referred to above and differs from previous decisions
where the Court was satisfied that criminal proceedings concerning sexual
offences, taken as a whole, were fair, as the convictions were either entirely
based on evidence other than the statements of the victim (cf.
no. 36686/97, Dec. 12 January 1999), or not solely based on
the statements of the victims (no. 35253/97, Dec. 31 August
1999).
31. In these circumstances, the use of
this evidence involved such limitations on the rights of the defence that the
applicant cannot be said to have received a fair trial.
32. There has thus been a violation of
paragraph 3 (d), taken in conjunction with paragraph 1, of Article 6 of the
Convention.
II. APPLICATION OF ARTICLE 41 OF THE
CONVENTION
33. Under Article 41 of the Convention,
“If the Court finds that there has been a violation of
the Convention or the Protocols thereto, and if the internal law of the High
Contracting Party concerned allows only partial reparation to be made, the
Court shall, if necessary, afford just satisfaction to the injured party.”
34. The applicant did not file any
claims for just satisfaction under Article 41. The Court, for its part, sees no
ground for examining this question of its own motion (see, mutatis mutandis,
the Nasri v. France judgment of 13 July 1995, Series A no. 320-B, p. 26, § 49).
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been a violation of paragraph 3 (d),
taken in conjunction with paragraph 1, of Article 6 of the Convention.
Done in English, and notified
in writing on 20 December 2001, pursuant to Rule 77 §§ 2 and 3 of the Rules of
Court.
Vincent Berger Ireneu
Cabral Barreto
Registrar President