Judgment (Merits) of Court (First Section), July 02, 2002 (case CASE OF S.N. v. SWEDEN)
|Resolution Date:||July 02, 2002|
|Issuing Organization:||Court (First Section)|
No violation of Art. 6-1 and 6-3-d
[In its composition prior to 1 November 2001]
CASE OF S.N. v. SWEDEN
(Application no. 34209/96)
2 July 2002
In the case of S.N. v. Sweden,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Mrs W. Thomassen, President, Mrs E. Palm, Mr Gaukur Jörundsson, Mr R. Türmen, Mr C. Bîrsan, Mr J. Casadevall, Mr R. Maruste, judges, and Mr M. O'Boyle, Section Registrar,
Having deliberated in private on 20 November 2001 and 10 June 2002,
Delivers the following judgment, which was adopted on the last-mentioned date:
The case originated in an application (no. 34209/96) against the Kingdom of Sweden 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 Swedish national, S.N. (“the applicant”), on 28 August 1996.
The applicant alleged that he had not had a fair trial under Article 6 §§ 1 and 3 (d) of the Convention in criminal proceedings against him.
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).
The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.
By a decision of 16 January 2001 the Chamber declared the application admissible.
The applicant and the Government each filed observations on the merits (Rule 59 § 1).
On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1), but this case remained with the Chamber constituted within the former First Section.
A hearing took place in public in the Human Rights Building, Strasbourg, on 20 November 2001 (Rule 59 § 2).
There appeared before the Court:
(a) for the GovernmentMs E. Jagander, Ministry for Foreign Affairs, Agent,Ms C. Renfors, Ministry of Justice,Mr J. Sangborn, Ministry of Justice,Ms C. Hellner, Ministry for Foreign Affairs, Advisers.
(b) for the applicantMr P.E. Samuelsson, Counsel.
The Court heard addresses by Mr Samuelsson and Ms Jagander.
THE CIRCUMSTANCES OF THE CASE
In February 1995 the Social Council (socialnämnden) of Borgholm was contacted by a schoolteacher on account of a suspicion that one of her pupils, M., a boy born in June 1984 and thus at the time aged 10, had been sexually abused by the applicant. On 29 March 1995, having carried out an investigation, the Council reported the matter to the police authority in Kalmar.
On 7 April 1995, between 10.09 a.m. and 10.51 a.m., M. was interviewed by the police. The interview was recorded on videotape. M.'s parents and representatives of the Social Council were present in the adjoining room. At that time, the applicant had not been informed of the suspicions against him and no defence counsel had been appointed for him.
The interview was conducted by a detective inspector with twenty-six years of service in the police force. Since 1989 he had been working exclusively on investigations concerning ill-treatment and sexual abuse of children.
On 10 May 1995 the applicant was questioned by the police and the public prosecutor. Before the questioning the applicant was notified, in accordance with Chapter 23, section 18, of the Code of Judicial Procedure (Rättegångsbalken), of the suspicions against him.
In June 1995 the applicant received a copy of the report of the preliminary investigation and on 3 July defence counsel was appointed for him. The applicant was given an opportunity to submit observations and request additional interviews and other investigative measures. Finding that further information was necessary with regard to, inter alia, the dates and the number of occasions when the alleged acts had been committed and the sites at which they were supposed to have occurred, the applicant's counsel requested that M. be interviewed again.
In accordance with counsel's request, a second interview with M. was conducted on 20 September 1995, between 12.50 p.m. and 1.14 p.m. at the boy's home, by the same detective inspector. During the interview, which was recorded on audiotape only, M.'s parents were present but not the applicant's counsel. It appears that M.'s counsel, who had not been served notice of the interview, was opposed to counsel for only one of the parties being present at an interview. Finding that it would be unreasonable to cancel the interview, as the police officer was present and M. had taken time off from school, the applicant's counsel agreed that it could be conducted without his being present. The police officer and the applicant's counsel discussed what aspects of the case needed to be addressed during the interview. In general, counsel for the applicant wished to have a more detailed account of what was alleged to have happened. However, no written list of questions was drawn up. Counsel for the applicant later listened to the audiotape of the interview and was given a transcript of the tape. Finding that the issues raised in his request had been covered, he did not call for a further interview to be held.
On 29 September 1995 the applicant was indicted for sexual acts with a child (sexuellt umgänge med barn).
The Kalmar District Court (tingsrätten) heard the case on 31 October 1995. The applicant denied the charges. The videotaped police interview with M. was shown during the hearing. The record of the second interview was read out. The court also heard evidence from M.'s mother and his schoolteacher as witnesses. No request for M. to be heard in person was made.
In a judgment of 14 November 1995 the District Court convicted the applicant and sentenced him to eight months' imprisonment. The court, noting that the outcome of the case was entirely dependent on the credibility of M.'s statements, found no reason to call into question their veracity. Thus, basing itself on those statements, the court found that the applicant, on a large number of occasions in 1994, had touched M.'s penis or masturbated him and induced M. to touch the applicant's penis or masturbate him.
The applicant appealed to the Göta Court of Appeal (Göta hovrätt). Subsequently, at the applicant's request, his defence counsel was replaced. The appellate court held a hearing on 22 April 1996, during which it heard the applicant and his new counsel. M.'s mother and his schoolteacher gave evidence. The videotape of the first police interview with M. and the audiotape of the second interview were played back. Again, the applicant did not request that M. give evidence during the hearing.
In a judgment of 6 May 1996 the Court of Appeal upheld the applicant's conviction but reduced the sentence to three months' imprisonment. It considered that, as there was no technical evidence in the case and nobody had witnessed the alleged acts, the credibility of M.'s statements was of decisive importance in determining the applicant's guilt. It went on to state the following:
“For reasons of legal certainty, the questioning of children during pre-trial investigations must – as explained in detail by the Supreme Court [Högsta domstolen] in NJA 1993 p. 616 – meet high standards with regard to both methods and content.
The information given by [M.] is, in some parts, vague and uncertain. He has not been able to give details of any specific incident covered by the prosecution and he has been able to describe only in more general terms what kind of sexual contact has occurred. It should further be noted that some of the questions put to him have been of a leading nature. Even if these circumstances are taken into account, the Court of Appeal finds that [M.'s] statements cannot be disregarded.
A fact which strongly indicates that [M.] has been subjected to homosexual abuse is his expressed concern that he would become 'gay'. The Court of Appeal has had further regard to the following circumstances. The general impression of the video-recording is that [M.] has talked about something he has indeed experienced and that it has been embarrassing and painful for him to give this information. This may explain his unwillingness to go into detail about specific incidents. [M.] has not shown any tendency to exaggerate his statements and has corrected the interrogator on several occasions. Furthermore, in some respects his statements can be said to contain more personal observations, for example, 'Of course, I did not want to touch his but sometimes I did it without gloves' and 'First I asked if I would get any (refers to pastilles). He did not have any and then I did it voluntarily but I do not know why'. It should further be noted that no information has come to hand which could reasonably explain why [M.] would make untrue statements about events which he obviously considers to be shameful. Also of importance is the information given by [M.'s] mother and teacher which describes how [M.'s] personality has changed since the alleged injustice. The fact that it was a long time before [M.] spoke about what he experienced is easily explained by the feelings of guilt he has had and by the fact that thinking about the incidents is distasteful to him. [M.'s] accounts do not contain any improbable elements, neither is the information given by him contradicted by other statements. In view of what has now been said, the Court of Appeal finds that [M.] is credible and that his statements should form the basis for the Court of...
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