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
Full & Egal Universal Law Academy