Personal hearing of an applicant consists the basis of a fair trial. The Court does not justify the ban even regarding an individual who seduced a mentally retarded woman

JUDGMENT

Evers v. Germany 28.05.2020 (no. 17895/14)

see here

SUMMARY

Personal hearing of an applicant,  access to a case file, reason for a decision and a fair trial. The applicant was charged with sexual abuse of his ancestor, who was diagnosed with mental retardation. The domestic courts, following legal proceedings initiated by the commissioner, prohibited him from communicating with her. A complaint was lodged against insufficient evidence, deprivation of the right to access the case file and denial of personal representation.

The Court found that the decision of the domestic courts to ban communication was based on expert reports and other evidence that all confirmed the futility and danger of continuing the applicant’s relationship with his ancestor. The ECtHR did not find a violation of Article 6§1 in the case of evidence.

With regard to access to the case file, the ECtHR stated that national law restricts access to the file to the extent that there is no conflict with the serious interests of another participant or third party and held that the prohibition of access to certain documents in the case was intended to protect personal data of particularly vulnerable individuals. No violation of Article 6§1 with respect to access to the case file.

Finally, It ruled that the domestic courts should allow the applicant to appear in person, as the nature of the case was special and they had to have a personal impression on him and his personality. With a majority of 4 votes to 3, the Court ruled that there had been a violation of Article 6§1 regarding the applicant’s personal representation in the civil court.

PROVISION

Article 6§1

PRINCIPAL FACTS

The applicant, Jörg Evers, is a German national who was born in 1939 and lives in Baden-Baden
(Germany).

The case concerned his complaint about a ban on him having any contact with V., the mentally
disabled daughter of his former partner.

The ban was made in 2013 in order to protect V. from sexual abuse by the applicant.

When living with his former partner, P.B., in 2009 the applicant had had a sexual relationship with V.,
who was 22 years old at the time. V. had become pregnant and gave birth to his son in 2011.

Two sets of criminal proceedings were brought against the applicant, which included P.B. in the
second set of proceedings, for sexual abuse. They were ultimately discontinued, with the applicant
and P.B. having to pay fines. In the second set of proceedings the domestic court pointed out in
particular that V. was incapable of resisting the applicant’s sexual advances and that he had taken
advantage of the special relationship of confidence he had with V. and her mother.

Meanwhile, both V. as well the applicant’s and V.’s child were placed in care and V. was appointed a
professional guardian. In the guardianship proceedings, basing their decisions on the conclusions of
three experts, the courts found that V. had a moderate mental disability, with the intellectual
development of a four-year old, and was unfit to manage any of her affairs by herself.

When V. showed signs of mental distress and needed medication after the applicant and P.B. had
visited her residential home in September 2012, V.’s guardian sought approval from the courts of a
contact ban.

The courts upheld the ban and dismissed the applicant’s appeal in March 2013. Basing their
decisions on the conclusions of the three experts appointed in the guardianship proceedings and V.’s
guardian, they found that the ban was not only lawful but imperative in order to protect V. from the
applicant who maintained his wish to continue a sexual relationship with her, entailing the further
risk of pregnancies and danger to her. Furthermore, they had heard V. on several occasions and she
had expressed no particular interest in having contact with him.

In the appeal proceedings, the applicant’s request for a personal hearing was rejected on the ground
that he had been able to present his case sufficiently in writing.

Subsequently, his complaint of a violation of his right to be heard was dismissed, and the Federal
Constitutional Court declined to consider his constitutional complaint.

Relying on Article 8 (right to respect for his private and family life), the applicant complained about
the ban on his having contact with V. Also relying on Article 6 (right to a fair trial), he alleged that the
contact ban had not been based on enough evidence, that he had been refused full access to the
case file on the guardianship proceedings and that he had not been heard in person, in particular
before the appeal court

THE DECISION OF THE COURT

The Court reiterates its case-law, according to which the right to a fair and public hearing as provided for in Article 6 § 1 of the Convention is taken to establish a general requirement of an adversarial character of the domestic proceedings. The Court refers in particular to its case-law concerning the administration of evidence. The Court has, moreover, recently summarised its case-law concerning the issue of a personal hearing and concerning the issue of disclosure of documents 

The Court notes that the applicant alleged a failure to gather further evidence. He had requested that further expert opinions be ordered and that further witnesses be heard. He also submitted that V.s wishes had been established in violation of her right to self-determination.

The Court reiterates that it is not its task to substitute its own assessment of the facts and the evidence for that of the national courts. Article 6 § 1 of the Convention does not lay down any rules on the admissibility or probative value of evidence or on burden of proof, which are essentially a matter for domestic law. It is also for the national courts to assess the relevance of proposed evidenceThe Courts task under the Convention is rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair.

The Court notes that the domestic courts heard V. in person and had three expert opinions and further evidence at their disposal and had given the applicant the possibility to submit his arguments in writing. There is, against this background, nothing to indicate that the proceedings lacked, overall, a sufficient evidentiary basis.

Regarding the applicants allegation of a violation of V.s right to self-determination, the Court observes that the complaint before it concerns exclusively the applicant and, specifically, his procedural rights, albeit in guardianship proceedings concerning V. It is not, however, for the applicant to assert what he believes to be the rights and interests of V. The Court, like the Government, is mindful of the issues which may arise in different proceedings regarding the right to selfdetermination of mentally disabled persons. It has previously emphasised the need for the domestic authorities to reach, in each particular case, a balance between respect for the dignity and self-determination of the individual concerned and the need to protect and safeguard his or her interests, especially when the individual in question is particularly vulnerable. However, in the context of the guardianship proceedings in which the applicant claims his procedural rights were not respected, it would appear that, in relation to V., this is what the domestic authorities were seeking to do.

The Court notes in this respect that the domestic courts considered, in particular, three expert opinions, V.s particular situation and several objective indications that a substantial deviation had occurred from the kind of relationships in which a mentally disabled person would ordinarily engage. They based their decision to ban contact not on V.s status as a person with a disability, but rather on the finding that her disability was of such a nature as to render her unable to understand adequately the significance and implications of the contact at issue, as well as the particularities of their relationship given the fact, inter alia, that the applicant had previously been her mothers partner, and finally on the fact that any other form of contact would not be to her benefit either. Moreover, V. was heard in person several times and there were effective safeguards to prevent any kind of abuse during the course of the domestic proceedings – in particular the participation of the guardian and the guardian ad litem. If at all relevant to the applicants case there is, overall, no indication that V.s “reasonable wish” was determined in violation of her rights under Article 8 § 1 of the Convention.

The Court concludes that there is nothing to indicate that the domestic courts based their decisions on insufficient grounds or that they arbitrarily refused to take relevant evidence.

Accordingly, there has been no violation of Article 6 in this respect.

b)   Access to the case file

As regards the applicants complaint concerning access to the case file the Court reiterates that the adversarial principle and the principle of equality of arms, which are closely linked, are fundamental components of the concept of a fair hearing within the meaning of Article 6 § 1 of the Convention. However, the rights deriving from these principles are not absolute. The Court has already ruled on cases in which precedence was given to superior national interests when denying a party full adversarial proceedings and has recognised that the Contracting States had a certain margin of appreciation in this area

The Court notes that the applicant requested access to the guardianship case file only after the District Courts decision to impose the contact ban had already been taken. The District Court subsequently granted access only in respect of those parts of that file that it regarded as relevant for its decision. Those parts were presented to the applicant in the form of paper copies. The applicant therefore did not have access to the case file as such and as a whole. Moreover, he did not, bearing in mind the District Courts announcement regarding what evidence it would deem relevant when reaching its decision, have access to the expert opinions.

With regard to the guardianship case file as a whole the Court is satisfied that the applicant had sufficient knowledge of the expert opinions in relation to V., which must have contained particularly sensitive information and which must at the same time have been of particular importance for the decision to impose a contact ban. The domestic courts had provided the applicant with an earlier ruling containing summaries of the expert opinions, as well as indications as to the conclusions that the court could draw from those opinions in respect of V.s capacity to consent to the applicants intimate advances.

The Court furthermore notes that the case file stemmed from and belonged to a broader framework – namely, the guardianship proceedings with highly personal information relating to V., in particular, information regarding her mental disability adduced during psychological and medical examinations of V. and detailed in expert opinions. The applicable domestic law restricts access to the file in so far as no conflict exists with the serious interests of another participant or of a third party. It was therefore aimed at protecting the personal data of particularly vulnerable people who are involved in guardianship proceedings in which a contact ban has been issued. There is nothing to indicate that the provision was applied arbitrarily vis-à-vis the applicant.

In these circumstances there is no indication that the restrictions imposed on the applicants access to the contents of the guardianship case file were of such a nature as to impede the essence of the applicants ability to defend his position in relation to the proposed contact ban or that they were not supported by relevant and sufficient reasons.

The forgoing considerations are sufficient to enable the Court to conclude that the domestic courts refusal to grant the applicant full access to the case file was not in breach of Article 6 of the Convention. Accordingly, there has been no violation of this provision.

c)Personal hearing of the applicant

As regards the absence of a personal hearing the Court reiterates that, in proceedings before a court of first and only instance, the right to a “public hearing” within the meaning of Article 6 § 1 entails an entitlement to an “oral hearing” unless there are exceptional circumstances that justify dispensing with such a hearing. In proceedings before two instances, at least one instance must, in general, provide such a hearing if no such exceptional circumstances are at hand.

The Court has identified such exceptional circumstances where there were no issues of credibility or contested facts and in cases raising purely legal or highly technical issues. By contrast, it has found the holding of a hearing to be necessary in cases where there was a need to assess whether the facts were correctly established by the authorities, where the circumstances required the court to form its own impression of litigants by affording them a right to explain their personal situation or where the courts needed to obtain clarification on certain points, inter alia, by means of a hearing.

The Court notes that the District Court invited the applicant to submit written comments which the latter failed to do. Subsequently, in the appeal proceedings, the applicant requested a personal hearing, but the Regional Court rejected the request. It held that the applicant had been able to present his case sufficiently in writing. As such, the present case can be distinguished from cases where the domestic courts did not provide any reasons why they refused to hold an oral hearing.

The Court is aware of the particular background of the guardianship proceedings against which, as the Government emphasized, the domestic courts decision not to hear the applicant in personam had to been seen. It notes in this connection that V. who was primarily affected by the contact ban was personally heard by the District Court judge whereas the applicants point of view, being one of other interests to be taken into account by the courts when examining the range of the guardians right to determine Vs contacts, carried lesser weight and were reflected in his written submissions and the evidence referred to by the District Court.

The Court notes, however, that the contact ban was of a far-reaching nature. Moreover, the questions at the heart of the proceedings at issue entailed an assessment of the applicants personality as well as of his relationship to V., the nature of which the applicant contested. The Court hence cannot but conclude that, even though the applicant had maintained his position to continue to have sexual contact with V. and even though the District Court had heard him personally throughout the guardianship proceedings, the issue in the proceedings was not purely legal and technical, but would have allowed the domestic courts to form their own impression of the applicant and the latter to explain his personal situation.

There have therefore been no exceptional circumstances that would have justified dispensing the domestic courts with a personal hearing of the applicant. Accordingly there has been a violation of Article 6 § 1 of the Convention in this respect.

Just satisfaction: the Court held that the finding of a violation of Article 6 of the Convention
constituted sufficient just satisfaction for the non-pecuniary damage sustained by Mr Evers; it
further awarded Mr Evers EUR 3,000 for costs and expenses.


ECHRCaseLaw

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