FINKENSIEPER v. THE NETHERLANDS

EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 19525/92

Hans Otto Theodoor Finkensieper

against

the Netherlands

REPORT OF THE COMMISSION

(adopted on 17 May 1995)

TABLE OF CONTENTS

Page

I.INTRODUCTION

(paras. 1-16)1

A.The application

(paras. 2-4)1

B.The proceedings

(paras. 5-11)1

C.The present Report

(paras. 12-16)              2

II.ESTABLISHMENT OF THE FACTS

(paras. 17-47)              3

A.The particular circumstances of the case

(paras. 17-34)              3

B.Relevant domestic law

(paras. 35-47)              6

III.OPINION OF THE COMMISSION

(paras. 48-72)              9

A.Complaint declared admissible

(para. 48)9

B.Point at issue

(para. 49)9

C.As regards Article 6 of the Convention

(paras. 50-71)              9

CONCLUSION

(para. 72)12

DISSENTING OPINION OF Mr. H. DANELIUS JOINED BY

MM. L. LOUCAIDES AND J. MUCHA13

APPENDIX:DECISION OF THE COMMISSION AS TO THE

       ADMISSIBILITY OF THE APPLICATION              14

I.INTRODUCTION

1.The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A.The application

2.The applicant is a Dutch citizen, born in 1934 and resident in Nijmegen, the Netherlands. He was represented before the Commission by Mr. G. Spong, a lawyer practising in The Hague.

3.The application is directed against the Netherlands. The respondent Government were represented by their Agent, Mr. K. de Vey Mestdagh, of the Dutch Ministry of Foreign Affairs.

4.The case concerns the alleged unfairness of criminal proceedings against the applicant. He complains, in particular, that his requests to have witnesses examined before the Court of Appeal were rejected. The applicant invokes Article 6 paras. 1 and 3 (d) of the Convention.

B.The proceedings

5.The application was introduced on 23 December 1991 and registered on 18 February 1992.

6. On 14 January 1994, the applicant was requested, pursuant to Rule 47 para. 2 (a) of the Rules of Procedure, to submit a number of documents.

7.On 2 March 1994, the Commission (Second Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.

8.The Government's observations were submitted on 20 May 1994, after one extension of the time-limit fixed for this purpose. The applicant replied on 8 June 1994.

9.On 30 November 1994, the Commission declared the application admissible.

10.The text of the Commission's decision on admissibility was sent to the parties on 14 December 1994 and they were invited to submit such further information or observations on the merits as they wished. The parties did not avail themselves of this possibility.

11.After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement. In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C.The present Report

12.The present Report has been drawn up by the Commission (Second Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:

Mr.H. DANELIUS, President

Mrs.G.H. THUNE

MM.G. JÖRUNDSSON

S. TRECHSEL

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. ŠVÁBY  

13.The text of this Report was adopted on 17 May 1995 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

14.The purpose of the Report, pursuant to Article 31 of the Convention, is:

(i)to establish the facts, and

(ii)to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

15.The Commission's decision on the admissibility of the application is attached hereto as an Appendix.

16.The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II.ESTABLISHMENT OF THE FACTS

A.The particular circumstances of the case

17.The applicant is a psychiatrist. From 1970 to 1 February 1989 he was employed by the H. Foundations in Z., the Netherlands. From 1973 until the end of 1985 he was director and senior medical officer of the "D.L." house of the H. Foundations. This house was a psychiatric ward where minors with mental problems were treated.

18.In 1988, C., an ex-patient of the "D.L." house, wrote a letter to K., a group leader at the "D.L." house, in which she accused the applicant of having sexually abused her. K. took the matter up with his superiors at the H. Foundations and informed the public prosecutor (officier van justitie) of the contents of the letter and in December 1988 the police started an investigation. Allegedly, before 1988 anonymous complaints had been made, accusing the applicant of having abused patients under his care and of having committed indecencies during a long period of time. In January and February 1989, a large number of persons were questioned by the police, including former patients and former staff members of the "D.L." house.

19.On 27 February 1989, the applicant was arrested and subsequently detained on remand. He was released in June 1989.

20.Between 24 April 1989 and 17 May 1989 and between 9 October 1989 and 25 April 1990, the investigating judge (rechter-commissaris) examined, in the course of a preliminary judicial investigation (gerechtelijk vooronderzoek), 33 witnesses and experts. The applicant's lawyer was present at these examinations and could question the witnesses and experts.

21.In May 1989, the investigating judge heard, inter alia, J., T. and D., three former patients of the "D.L." house, who alleged that they had been abused by the applicant. The applicant's lawyer was present at these hearings and was given the opportunity to question the three witnesses, who confirmed their previous statements to the police.

22.A fourth alleged victim, C. (see para. 18 above), was initially not at all willing to bring a complaint against the applicant, according to the police due to psychological and emotional problems related to the abuse allegedly suffered. She later changed her mind and agreed to make a statement to the police, which she did on 27 February 1989. She was summoned to appear before the investigating judge on 19 December 1989. However, she did not appear. The investigating judge's registrar was informed by telephone that C. did not wish to testify, which the investigating judge recorded in a procès-verbal of 25 April 1990. In the procès-verbal no reasons were stated for C.'s decision.

23.Following the closure of the investigation against him, the applicant was summoned to appear before the Regional Court (Arrondisse-mentsrechtbank) of Arnhem on ten charges. The offences the applicant was charged with had allegedly been committed between June 1975 and the middle of 1985.

24.The Regional Court examined the case on 16 and 17 May 1990. The applicant did not request the Regional Court to hear any witnesses.

25.On 30 May 1990, the applicant, who denied all charges, was convicted by the Regional Court of the following charges:

- multiple abuse, as a doctor in a charitable institution, of J., T., D. and C, while they were admitted as patients to the institution;

-multiple indecent assault on J.; and

-multiple rape of D.

The applicant was acquitted of the remaining four charges. He was sentenced to six years' imprisonment. In addition, his right to practise medicine was suspended for a period of eleven years.

26.Both the applicant and the public prosecutor filed an appeal  against the judgment of 30 May 1990 with the Court of Appeal (Gerechtshof) of Arnhem, which dealt with the case on 30 and 31 October  1990.

27.In the course of the proceedings before the Court of Appeal, the applicant's lawyer repeatedly requested the Court to hear J., T., D. and C. He argued that many other witnesses had been heard since May 1989, when J., T. and D. had been examined by the investigating judge. He wished to confront them with these new statements, and in particular to question C., whom he had never been able to examine. The Court of Appeal rejected these requests, considering, inter alia, the following:

"Bij pleidooi heeft de raadsman zijn eerder gedaan verzoek tot het horen van de slachtoffers ter zitting (als getuigen onder ede) herhaald. Het hof wijst dat verzoek nogmaals af omdat het van oordeel is dat de verdachte door het achterwege blijven van dat verhoor redelijkerwijze niet in zijn verdediging kan worden geschaad. (...).

De aangeefsters [J., T. en D.] zijn naar aanleiding van hun aangiften bij de politie door de rechter-commissaris gehoord, in bijzijn van de raadsman van de verdachte. Deze heeft gelegenheid gehad om deze getuigen de vragen te stellen die hij in het belang van de verdediging achtte.

Omtrent de aangeefster [C.] heeft de politie op blz. 13 van het proces-verbaal nr. 3B/89 gerelateerd, dat het aanvankelijk niet mogelijk was, contact met dit slachtoffer te krijgen, omdat zij door psychische en emotionele problemen niet in staat was aangifte te doen. Naar 's hofs oordeel moet ook het proces-verbaal van de rechter-commissaris d.d. 25 april 1990, dat zich in het dossier bevindt, inhoudende dat aangeefster of haar hulpverleenster heeft meegedeeld dat eerstgenoemde geen gevolg geeft aan de oproep om voor de rechter-commissaris te verschijnen, in dat licht worden bezien. Derhalve is te verwachten, dat aangeefster ondanks de daarop bestaande sancties, bij oproeping niet zal voldoen aan haar verplichting tot verschijning en tot het afleggen van een verklaring."

"In his submissions to the court, counsel has reiterated his request to hear the victims (as witnesses under oath) before the court. The court again rejects this request as it considers that the rights of the defence cannot reasonably be impaired by the absence of such a hearing ....

On the basis of their reports to the police, the informants [J., T. and D.] have been heard by the investigating judge, in the presence of the applicant's lawyer. He has had the opportunity to put the questions, which he considered to be in the interest of the defence, to these witnesses.

As regards informant [C.], the police have stated on page 13 of the procès-verbal nr. 3B/89 that initially it had been impossible to obtain contact with this victim, as due to her psychological and emotional problems she was incapable to report to the police. In the opinion of the court the procès-verbal of the investigating judge of 25 April 1990, which is included in the case file and indicates that the informant or her social worker have stated that the former will not comply with the summons to appear before the investigating judge, should be seen in that light. Consequently, it is to be expected that the informant, if summoned, will not comply with her obligation to appear and to make a statement, despite the sanctions this refusal might entail."

28.The Court of Appeal added that it found the statements of J., T., D. and C. reliable, inter alia in view of the connections between (onderlinge samenhang) their statements and because their statements were supported by other evidence.

29.In its judgment of 14 November 1990, the Court of Appeal quashed the Regional Court's judgment and, after a new examination of the facts and evidence, convicted the applicant, who denied all charges, of the following charges:

- multiple abuse, as a doctor in a charitable institution, of J., T., D. and C, while they were admitted as patients to the institution;

-multiple indecent assault on J.; and

-rape of D.

The Court of Appeal acquitted him of the remainder. It imposed the same sentence as the Regional Court.

30.The Court of Appeal's conviction was based on:

- statements of the applicant before the police, the Regional Court and the Court of Appeal;

- statements of J. before the police and the investigating judge;

- a statement of J.'s general practitioner before the investigating judge;

- a letter of 23 July 1983 which J. wrote to her general practitioner describing the alleged abuse by the applicant;

- statements of T. before the police and the investigating judge;

- a statement before the police of a member of the Board of the   H. Foundations who in November 1988 had a discussion with the applicant about the complaints against the latter;

- statements of D. before the police and the investigating judge;

- a statement before the police of an employee of a mental hospital where D. was admitted after having left the "D.L." house and who had treated D.;

- the statement of C. before the police;

- a statement before the police of V., a friend of C., whom she had met and had associated with when both of them were patients in the "D.L." house and to whom C. had confided that she was repeatedly being abused by the applicant and who had advised C. to write about the matter to C.'s therapist;

- statements before the police and the investigating judge of K., a group leader at the "D.L." house, who in 1988 had received a letter from C. about the applicant's abuse and who had taken the matter up with his superiors;

- statements before the police and the investigating judge of C.'s therapist H.C., to whom C. had complained that the applicant was abusing her;

- statements before the police and the investigating judge of therapist A.H., who had treated C.'s friend V. and to whom C., V. and H.C. went in order to discuss the applicant's abuse of C.; and

- statements before the investigating judge of three of the police officers who had taken down the various statements made to the police in this case about the investigation and the method of questioning of the persons heard by them.

31.In his subsequent appeal in cassation to the Supreme Court (Hoge Raad) the applicant complained, inter alia, that the Court of Appeal had violated Article 6 paras. 1 and 3 (d) of the Convention by rejecting his requests to examine the four alleged victims. With respect to J., T. and D., he argued that the Court of Appeal had not properly given reasons for its rejection. With respect to C., he referred to the case-law of the European Court and Commission of Human Rights, arguing that the defence had not had "adequate and proper opportunity to challenge and question" her. According to the applicant, the Court of Appeal should either have summoned C. or should have refrained from using her statement in evidence. He emphasised that C.'s statement constituted an important basis for his conviction.

32.In its judgment of 1 October 1991, the Supreme Court rejected the applicant's appeal in cassation. It found that the Court of Appeal's refusal to summon J., T. and D. was reasonable, taking into account that no specific reasons were given for the requests to hear them again, apart from a very general intention to confront them with the statements of other witnesses.

33.As to C., the Supreme Court accepted that the Court of Appeal had decided not to summon her given the situation in which she apparently found herself. The Supreme Court held that the Court of Appeal could reasonably use her statement in evidence, as it coincided with the other statements obtained and was supported by other evidence.

34.On 27 January 1992, the State Secretary of Justice (Staatssecretaris van Justitie) rejected the applicant's appeal for pardon (gratie).

B.Relevant domestic law

35. Section 168 of the Dutch Code of Criminal Procedure (Wetboek van Strafvordering, hereinafter referred to as "CCP") provides that each Regional Court shall have one or more investigating judges to whom criminal cases are entrusted. They shall be nominated from amongst the members of the Regional Court.

36.It is open to the public prosecutor, under Section 181 CCP, to request what is called - in order to distinguish it from the subsequent investigation at the trial - a preliminary judicial investigation (gerechtelijk vooronderzoek).

37.It is the task of the investigating judge to conduct such an investigation. In that event he will hear the suspect(s), witnesses and experts as soon as possible and as often as necessary (Section 185 CCP). Both the public prosecutor and defence counsel are, in principle, entitled to be present at those hearings (Sections 185 para. 2 and 186 CCP) and, even if they are absent, to give notice of questions they wish to have put. Most investigating judges invite an accused and his counsel to attend their hearings of witnesses.

38.The preliminary judicial investigation provides a basis for a decision by the prosecuting authorities with regard to the further prosecution of a suspect, and also serves to clarify matters which cannot properly be investigated at the trial. The investigating judge must act impartially, by also collecting evidence which might exculpate the suspect. The investigating judge will close his investigation when he considers it is completed. Both the suspect and the prosecuting authorities will be informed about the closure of the preliminary judicial investigation (Section 237 CCP).

39.If the public prosecutor finds that the results of the preliminary judicial investigation justify further prosecution, he will notify the suspect and commit the case for trial. The trial will then follow.

40.At the time in question, the relevant law and practice as regards the summoning of witnesses to a court hearing were as follows: a witness whom the defence had asked to call before the beginning of the trial, and who had not been summoned by the public prosecutor, would be summoned by the court, unless the court - considering summoning superfluous or fruitless - found that the suspect could, in all fairness, not be harmed in his defence if the summoning of the witness was refused (Section 280 para. 4 CCP).

41.As regards the evidence in criminal proceedings, Section 338 CCP provides that the finding that the accused has committed the act with which he is charged may be made by a judge only if he has been so convinced through the investigation at the trial, by the contents of "legal means of evidence" (wettige bewijsmiddelen). The latter consist, according to Section 339 CCP, exclusively of (i) what the judge has himself observed; (ii) statements made by the accused; (iii) statements made by a witness; (iv) statements made by an expert; and (v) written documents.

42.Evidence in the third category is defined in Section 342 CCP, which reads:

"1.A statement by a witness is understood to be his statement, made in the investigation at the trial, about facts or circumstances which he himself has seen or experienced.

2.The judge cannot accept as proven that the defendant has committed the act with which he is charged, solely on the statement of one witness."

43.Evidence in the fifth category is defined in Section 344 CCP, which, as far as relevant, reads:

"1.Written documents are understood to be:

1 ...;

2 official reports and other documents, drawn up in  lawful form by bodies and persons who have the proper authority and containing their statement regarding facts or circumstances which they themselves have seen or experienced;

3 ...;

4 ...;

5 all other documents; but these are valid only in      conjunction with the content of other means of        evidence.

2. ...."

44. In actual practice, the course of a procedure in a criminal case differs from that suggested by the CCP. This is to a considerable extent due to a leading judgment of the Supreme Court of 20 December 1926 (Nederlandse Jurisprudentie 1927, no. 85). According to this judgment:

- a statement by a witness concerning what he was told by another person (hearsay evidence) may be used as evidence, albeit with the utmost caution;

- it is permissible to use as evidence declarations made by the accused or by a witness to a police officer, as recorded in the latter's official report.

45. These rulings permit the use, as "legal means of evidence" within the meaning of Sections 338 and 339 CCP, of statements made by a witness not at the trial but before a police officer or the investigating judge, provided they are recorded in an official report which is read out in court. In the great majority of cases, witnesses are not heard at the trial but either only by the police or also by the investigating judge.

46.The law does not make the presence of counsel for the defence compulsory during the investigation by the police.

47.Section 292 CCP enables the President of the Court to order an accused to leave the court-room so that a witness may be examined out of his presence. If such an order is made, counsel for the defence may question the witness and the accused shall be told immediately what has happened during his absence and only then will the investigation be resumed (Section 292 para. 2 CCP). Thus, on returning to the court-room the accused may avail himself of his right to question the witness.

III.OPINION OF THE COMMISSION

A.Complaint declared admissible

48.The Commission has declared admissible the applicant's complaint that he did not have a fair trial because his requests to examine the witnesses J., T., D. and C. before the Court of Appeal were rejected.

B.Point at issue

49.The issue to be determined is whether there has been a violation of Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention.

C.As regards Article 6 (Art. 6) of the Convention

50.Article 6 (Art. 6) of the Convention, insofar as relevant, reads as follows:

"1.In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by a ... tribunal ....;

....

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;

...."

51.The applicant submits that he did not have a fair trial. He argues that the Court of Appeal wrongly rejected his requests to

examine the witnesses J., T., D. and C. before that court. As regards witness C., he states that the defence never had the opportunity to question her. He submits that his conviction of the charges in respect of C. rests mainly on her own statement. The rights of the applicant are not subordinate to the rights of the victim.

52. The Government consider that the applicant had a fair trial. They state that the applicant did not, in the proceedings before the Regional Court of Arnhem, ask for any witnesses to be heard. The witnesses J., T. and D. were examined by the investigating judge in the presence of the applicant's lawyer, who had the opportunity to question them. The use in evidence of their statements is therefore consistent with Article 6 para. 3 (d) (Art. 6-3-d) of the Convention. C.'s statement could be used in evidence without violating the right of the applicant to a fair hearing, given C.'s psychological and emotional problems and the consequences that a questioning would have for her.

53.As 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 (Art. 6-1) of this article, the Commission will consider the complaints under the two provisions taken together (cf. Eur. Court H.R., Asch judgment of 26 April 1991, series A no. 203, p. 10, para. 25, and Lala and Pelladoah judgments of 22 September 1994, to be published in Series A nos. 297-A and B, paras. 26 and 33, respectively).

54.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 judgment, ibid., p. 10, para. 26, and Eur. Court H.R., Edwards judgment of 16 December 1992, Series A no. 247-B, pp. 34-35, para. 34).

55.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. 6-1, 6-3-d), 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 H.R., Saïdi judgment of 20 September 1993, Series A no. 261-C, p. 56, para. 43).

56.As to the notion of "witness", the Commission recalls that although J., T., D. and C. did not testify at a court hearing, they should, for the purposes of Article 6 para. 3 (d) (Art. 6-3-d) of the Convention, be regarded as witnesses - a term to be given its autonomous interpretation - because their statements, as taken down by the police or the investigating judge, were used in evidence by the domestic courts (cf. Asch judgment, ibid., p. 10, para. 25).

57.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. No. 8231/78, Dec. 6.3.82, D.R. 28, p. 5; No. 10563/83, Dec. 5.7.85, D.R. 44, p. 113; and Eur. Court H.R., Bricmont judgment of 7 July 1989, series A no. 158, p. 31, para. 89).

58.The Commission notes that it appears from the Court of Appeal's judgment that it based its finding of guilt mainly on the statements of the four victims, J., T., D. and C.

59.The Commission must therefore examine 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 J., T., D. and C.

60.Insofar as the witnesses J., T. and D. are concerned, the Commission notes that they were not heard by the trial courts. They were, however, examined by the investigating judge in the presence of the applicant's lawyer, who had the opportunity to question them. On that occasion the applicant had, through his lawyer, adequate and proper opportunity to challenge and question these three witnesses. Moreover, the identities of these three witnesses was known to the applicant, who had been their doctor for a number of years.

61.The defence stated before the Court of Appeal that it wanted to examine J., T. and D. in order to confront them with statements of other witnesses who had been heard after J., T. and D. had been examined by the investigating judge. The Court of Appeal rejected the requests, holding, inter alia, that J., T. and D. had been examined by the investigating judge in the presence of the applicant's lawyer. The Supreme Court accepted this ruling, adding that no specific reasons were given for the requests to hear J., T. and D. again, apart from a very general intention to confront them with the statements of other witnesses.

62.The Commission, recalling the margin of appreciation of the national courts under Article 6 (Art. 6) of the Convention in respect of the calling of witnesses, finds that the applicant, whose lawyer had adequate and proper opportunity to challenge and question J., T. and D., as well as the other witnesses heard by the investigating judge at the pre-trial stage, was, during the trial, able to challenge the credibility and reliability of the witnesses J., T. and D. - who were all known to him - and the accuracy of their statements. It has not been substantiated in what way the presence of J., T. and D. at the court hearing was indispensable. In addition, the statements of these witnesses were not the only evidence and their statements were corroborated by other evidence.

63.In these circumstances the Court of Appeal's decision not to hear J., T. and D. cannot be considered as arbitrary or unreasonable.

64.As regards C., she was neither heard at a court hearing nor by the investigating judge. Neither the applicant nor his lawyer had the opportunity to ask questions, directly or indirectly, to this witness. There had been no direct confrontation.

65.The Commission recalls that the Court of Appeal rejected the applicant's request to hear C., assuming that her refusal to appear before the investigating judge was due to psychological and emotional problems and that it was to be expected that she would not respond when summoned to appear before the court to testify, despite the possible sanctions this refusal might entail.

66.The Commission has regard to the special features of criminal proceedings concerning rape and other 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, Comm. Rep. 20.10.94, para. 77).

67.Notwithstanding that in the present case it would have been preferable to hear C. in person, the Commission finds, taking into account the sensitive nature of the case and the problems C. apparently experienced, that the assessment of the Court of Appeal cannot be regarded as arbitrary or unreasonable. Furthermore, the applicant, who had been C.'s doctor for a number of years, knew C.'s identity and had the opportunity to comment on her statements in the course of the proceedings against him.

68.In addition, C.'s own statement was not the only evidence on which the Court of Appeal based its conviction as regards the charge involving C. The court also had regard to other evidence, which supported C's statements, namely:

- a statement before the police of V., a friend of C., whom she had met and had associated with when both of them were patients in the "D.L." house and to whom C. had confided that she was repeatedly being abused by the applicant and who had advised C. to write about the matter to C.'s therapist;

- statements before the police and the investigating judge of K., a group leader at the "D.L." house, who in 1988 had received a letter from C. about the applicant's abuse and who had taken the matter up with his superiors;

- statements before the police and the investigating judge of C.'s therapist H.C., to whom C. had complained that the applicant was abusing her; and

- statements before the police and the investigating judge of therapist A.H., who had treated C.'s friend V. and to whom C., V. and H.C. went in order to discuss the applicant's abuse of C.

69.The Commission observes that the group leader K., the therapist H.C. and the therapist A.H. were all examined by the investigating judge in the presence of the applicant's lawyer, who had the opportunity to ask them questions.

70.In these circumstances it cannot be regarded as unreasonable that the Court of Appeal considered the statement of C. to be corroborated by other evidence before it.

71.It is true that the applicant could not fully exercise his defence rights, in particular with regard to witness C. However, the Commission, considering the criminal proceedings against the applicant in their entirety, having regard to the particular nature of the offences at issue, and taking into account the possibilities the applicant had to defend himself against the charges against him, finds that in the particular circumstances of the present case the applicant was not deprived of a fair trial within the meaning of Article 6 (Art. 6) of the Convention.

CONCLUSION

72.The Commission concludes, by 10 votes to 3, that in the present case there has been no violation of Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention.

Secretary to the Second Chamber       President of the Second Chamber

       (M.-T. SCHOEPFER)                       (H. DANELIUS)

(Or. English)

DISSENTING OPINION OF Mr. H. DANELIUS

JOINED BY MM. L. LOUCAIDES AND J. MUCHA

I have voted against the conclusion that in the present case there had been no violation of Article 6 paras. 1 and 3 (d) of the Convention. My reasons were as follows.

In 1988, one of the applicant's former patients, C., wrote a letter in which she accused the applicant of sexual abuse. Subsequently, C. was not willing to bring a formal complaint against the applicant, but she changed her mind and, in February 1989, made a statement to the police. When, in December 1989, she was summoned to appear before the investigating judge, she failed to appear and it was indicated by her or on her behalf that she did not wish to testify. C. did not appear before the Regional Court, and the Court of Appeal did not grant the applicant's request that C. be heard by that court and indicated as reason for its refusal that it could be expected that C., if summoned, would not comply with her obligation to give evidence.

The applicant was convicted by both the Regional Court and the Court of Appeal of sexual abuse committed against C. and three other former patients. The Court of Appeal used as evidence, inter alia, the statement which C. had made to the police.

Although there was also some other evidence in the case, it is clear that the information that C. could provide was of considerable importance in evaluating the charges against the applicant. Moreover, the defence had not been present when C. had made her statement before the police, and the reasons why C. had refused to testify before the investigating judge and which also made the Court of Appeal refuse to summon her do not seem to have been verified. In these circumstances, and while realising that the hearing of C. before a court might well have been a painful experience for C., I consider that the use as evidence of the statement she had made before the police together with the fact that no attempt was made to hear her before the Regional Court or the Court of Appeal did not take sufficiently into account the rights of the defence.

Consequently, I consider that there has been in the present case a violation of Article 6 paras. 1 and 3 (d) of the Convention.

 

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