FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33900/96 
by P. S. 
against Germany

The European Court of Human Rights (Fourth Section), sitting on 6 June 2000 as a Chamber composed of

Mr A. Pastor Ridruejo, President
 Mr G. Ress, 
 Mr L. Caflisch, 
 Mr J. Makarczyk, 
 Mr I. Cabral Barreto, 
 Mrs N. Vajić, 
 Mr M. Pellonpää, judges,

and Mr V. Berger, Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 9 July 1996 and registered on 19 November 1996,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the Commission’s partial decision of 2 July 1998,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

 

THE FACTS

The applicant, born in 1952, is a German national and resident in Cottbus.  He is a businessman by profession.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

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 harrassed S. during her individual music lesson that afternoon. When questioned at the local police office on the afternoon of 30 April 1993, S. 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.

On 10 January 1994 the Künzelsau District Court (Amtsgericht), sitting with a single judge (Einzelrichter), convicted the applicant of having sexually abused S. and sentenced him to seven months’ imprisonment on probation.

In establishing the relevant facts, the court relied on the statements of the girl’s mother as well as of a 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 the girl’s statements on the ground of his own experience 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.

On 17 March 1995 the Heilbronn Regional Court (Landgericht) dismissed the applicant’s appeal.

The Regional Court found that the applicant’s guilt could be established on the basis of the evidence before it, i.e. the statements made by the girl’s mother and the police officer as well as a psychological expert opinion on the girl’s credibility. The expert had questioned S. in October 1994 and, in her report of November 1994, she had confirmed that the child’s statements were credible.

The Regional Court considered that the taking of evidence suffered from the absence of S.’s testimony in court. In this respect, the court noted the parents’ refusal to bring their daughter to court on account of her illness (neurodermitis). However, the Regional Court, taking into account the psychological expert opinion according to which S.’s state of health would most likely again deteriorate if she were to be heard on the event in question, reached the conclusion that S. was to be regarded as a witness out of reach.

On 2 August 1995 the Stuttgart Court of Appeal (Oberlandesgericht) dismissed the applicant’s appeal on points of law (Revision).

On 18 January 1996 the Federal Constitutional Court (Bundesverfassungsgericht) refused to entertain the applicant’s constitutional complaint (Verfassungsbeschwerde), leaving open the question whether the complaint had been lodged in time.

B. Relevant domestic law

The conduct of trial proceedings is governed by sections 226 to 275 of the Code of Criminal Procedure (Strafprozessordnung).

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 inportant 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.

COMPLAINT

The applicant complains under Article 6 § 3 (d) of the Convention about his conviction and the alleged unfairness of the proceedings, in particular that he could not put questions to the main prosecution witness, i.e. the girl.

THE LAW

The applicant complains about his conviction and the alleged unfairness of the proceedings concerned, in particular that he could not put questions to the main prosecution witness.  He invokes 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;

The respondent Government maintain 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 statement 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 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.

The applicant objects to the Government’s arguments.

In the light of the parties’ observations, the Court considers that the application raises serious questions of fact and law, which are of such a complexity that their determination should depend on an examination on the merits. It cannot, therefore, be considered manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other ground for declaring it inadmissible has been established.

For these reasons, the Court, by a majority,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case.

Vincent Berger  Antonio Pastor Ridruejo 
 Registrar President

33900/96 - -


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