Information Note on the Court’s case-law 44
July 2002
S.N. v. Sweden - 34209/96
Judgment 2.7.2002 [Section I]
Article 6
Article 6-3-d
Examination of witnesses
Absence of opportunity to question victim of child sex abuse: no violation
Facts: The teacher of a 10-year old boy, M., reported suspected sexual abuse by the applicant. M. was interviewed by a police officer; the interview was recorded on video. The applicant was notified of the suspicions and questioned by the police. At the request of the applicant’s lawyer, who considered that further information was necessary, M. was interviewed again by a police officer. The lawyer agreed to the interview being conducted in his absence, since M.’s lawyer could not attend. However, an audio recording was made of the interview and the lawyer subsequently confirmed that the issues which he had wished to raise had been covered. At the applicant’s trial, the video recording of the first interview was shown and the minutes of the second interview were read out. The applicant’s mother and teacher were heard as witnesses; no request was made for M. to be heard in person. The applicant was convicted and sentenced to eight months’ imprisonment. He appealed to the Court of Appeal, which held a hearing at which the video and audio recordings were played. The applicant did not request that M. be heard. The Court of Appeal upheld the conviction but reduced the sentence to three months’ imprisonment, finding that there was insufficient evidence in respect of certain of the alleged acts. The Supreme Court refused leave to appeal.
Law: Article 6 § 1 and § 3 (d) – Although M. did not testify in court, he was a “witness” for the purposes of Article 6 § 3 (d). His statements were virtually the only evidence on which the applicant’s conviction was based, the evidence of the witnesses who testified in court being limited to purported changes in M.’s personality. It was necessary to have regard to the special features of criminal proceedings concerning sexual offences, which are often seen as an ordeal by the victim, in particular when he or she is unwilling to confront the defendant. These features are even more prominent when a minor is involved. Account must be taken of the victim’s right to respect for private life and the Court therefore accepted that certain measures may be taken for the purpose of protecting the victim, provided they can be reconciled with an adequate and effective exercise of defence rights. In the present case, the applicant’s claim that he refrained from requesting that M. be heard in person because such a request would not have been acceded to could be accepted. However, the second police interview was held at the request of the applicant’s lawyer, who consented to not being present and accepted the manner in which the interview was conducted. He did not request a postponement or ask for the interview to be recorded on video, both of which possibilities were open to him. Moreover, he was able to put questions through the police officer and was apparently satisfied that the questions had actually been put. There had thus been no violation of the applicant’s rights on account of his lawyer’s absence during the second interview. Nor could it be said that he was denied his rights on the ground that he was unable to have the evidence given by M. examined during the trial and appeal proceedings. Article 6 § 3 (d) could not be taken as requiring in all cases that questions be put directly by the accused or his lawyer, through cross-examination or by other means. In the circumstances of the case, the playing of the video and audio tapes or reading out of the minutes had to be considered sufficient to enable the applicant to challenge M.’s statements and his credibility in the course of the criminal proceedings. Indeed, this challenge resulted in the applicant’s sentence being reduced on appeal. Evidence obtained from a witness under conditions in which the rights of the defence cannot be secured to the extent normally required by the Convention must treated with extreme care, but in the present case the necessary care had been taken in evaluating M.’s statements.
Conclusion: no violation (five votes to two).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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