The sentencing decision, which was based not only on the testimony of a minor witness but also on other evidence, did not violate the overall legal nature of the criminal proceedings.

JUDGMENT

P. v. Greece 14.05.2020 (no. 78085/12)

see here

SUMMARY

Right to hear a defendant accused of sexually abusing his son. Right of examination of witnesses. Complaint before the ECtHR about the reading by the national courts of the child’s testimony before the Investigator, which confirmed the sexual abuse. According to the applicant, the testimony of the child had been given on the basis of the harmful influence of the child’s mother, while in the absence of an expert and without any audiovisual recording.

According to the ECtHR, Article 226A of the Code of Criminal Procedure, which provides for special procedures for juvenile witnesses and victims, has not yet entered into force on the date of receipt of the child’s deposit. Also, the child’s testimony was not the only evidence on which the national courts relied to convict the applicant, and the applicant then had the opportunity to request further hearing of his son by audiovisual means, which he did not do.

The Court has concluded that the fair nature of the proceedings against the applicant has been fully respected, as it has benefited from certain compensatory factors which have enabled it to exercise sufficiently and effectively its rights of defense. Non-violation of Article 6 §§ 1 and 3 d) of the ECHR.

Given the complexity of the case and periods of inaction on the part of the applicant himself (application for replacement of experts, request for adjournment due to the impediment of his lawyer), the Court held that no reasonable time had been exceeded in accordance with Article 6 § 1 and 13.

PROVISIONS

Article 6

Article 13

PRINCIPAL FACTS

The applicant, Mr Efthymios Papadopoulos, is a Greek national who was born in 1965 and lives in
Athens. The case concerned, in particular, the use at a hearing of a complaint made against the
applicant by his former spouse, who had accused him of sexually abusing their son. That statement
served as the basis for the applicant’s conviction, which was upheld by the Court of Cassation.
Mr Papadopoulos, a judge by profession, divorced his wife in 2001. Parental authority in respect of
their son, born in 1998, was awarded to the mother. At an unspecified date he brought proceedings
before the Court of First Instance asking that parental authority be awarded to him. The court
dismissed the case and authorised Mr Papadopoulos to meet his son during the day and in the
mother’s presence.

In January 2005, at the public prosecutor’s request, the head of the child psychiatry clinic at
Evangelismos Hospital interviewed the child. She recommended increasing the number of meetings
between father and son, taking the view that the mother was not inclined to allow Mr Papadopoulos
to assume his role as father and was seeking to prevent any relationship between father and son.
In April 2005 the Athenian Child Protection Society sent the public prosecutor responsible for the
protection of minors a report, as requested by him, which set out the various points of disagreement
between the parents and reproduced the mother’s allegations that she was trying to protect her son
from the physical, sexual and psychological ill-treatment that Mr Papadopoulos would inflict on him.
On 28 December 2005 the mother filed a complaint against her former husband for sexual abuse
against their child. The public prosecutor ordered a preliminary investigation and Mr Papadopoulos
presented his defence. After the investigation, criminal proceedings for repeated abuse of a minor
were opened against Mr Papadopoulos and another person, Th. G.

During the investigation, Mr Papadopoulos, his ex-wife, the child and witnesses were summoned to
testify. When examined by the judge on 13 July 2007 the child described a number of sexual acts
that the applicant and Th. G. had allegedly inflicted on him. On 5 August 2009 the applicant and
Th. G. were committed to stand trial before the Athens Court of Appeal.

In a judgment of 6 April 2011 the Court of Appeal sentenced Mr Papadopoulos to thirteen years’
imprisonment for repeated abuse of a minor under ten years old. It also sentenced Th. G. to eleven
years’ imprisonment. Mr Papadopoulos appealed.

On 19 December 2011 the Court of Appeal upheld the conviction, but reduced the sentence to six
years’ imprisonment based on mitigating circumstances. It acquitted Th. G. During the proceedings Mr Papadopoulos asked the Court of Appeal not to read out the statement
that his son had made on 13 July 2007, arguing that the statement had been given under the
harmful influence of the child’s mother. As at first instance, he disputed the accusations against him,
portraying them as a form of revenge on the part of his ex-wife.

At the hearing the Court of Appeal read out the impugned statement. It founded Mr Papadopoulos’
conviction on the clarity of that statement and the lack of any contradiction in it, on a report drawn
up by a social worker who had examined the child, and on the judgment of the Court of First
Instance.

Mr Papadopoulos appealed on points of law. The Court of Cassation dismissed the appeal.
Relying in particular on Article 6 §§ 1 and 3 (d) (right to a fair hearing and right to examine
witnesses), the applicant complained that his son’s statement to the investigating judge, which in his
submission had been the sole ground of his conviction, had been taken in the absence of a specialist
and without any audio-visual recording.

THE DECISION OF THE COURT…

Article 6 §§ 1 and  3 d

The Court reminded that, according to its case law, during the examination of a complaint under Article 6 (1), it must essentially determine whether the criminal proceedings were generally fair.

The ECtHR takes into account the specifics of criminal proceedings related to sexual offenses. This type of process is often experienced as a test by the victim, especially when he/she has to deal with the accused against his/her will. These aspects are even more important in a minor case. In determining whether or not the accused has benefited from a fair trial, the right of the alleged victim to respect his or her privacy must also be taken into account. As a result, the Court accepts that in criminal proceedings related to sexual abuse, certain measures are taken to protect the victim, provided that these measures can be reconciled with the proper and effective exercise of the defendant’s rights of defense.

The Court pointed out from the outset that at the date on which the applicant’s son testified to the investigator, Article 226A of the Code of Criminal Procedure, which provides for special procedures for juvenile witnesses and victims, had not yet entered into force. This statement was made in accordance with the requirements of Articles 221, 226 and 364 of the same Code, which provided that minors testify without an oath and that the Investigator’s questions and the juvenile’s answers were recorded verbatim in the relevant report, which in then forwarded to the audience.

In addition, Article 183 of the same Code allowed the interested party to request, at any stage of the proceedings, the appointment of an expert / child psychiatrist to examine his or her son. In addition, the Supreme Court rejected the applicant’s claim that the reading of the deposit was invalid, stating that the provisions of Article 226A of the Code of Criminal Procedure could only apply to deposits made after the entry into force of this article, which was not the case here. in this case.

The Court also reminded that it should also consider whether there was sufficient evidence in the present case to compensate for the difficulties the defense suffered from accepting decisive evidence from absent witnesses. Factors taken into account are the way in which the court examined the unproven evidence, the evaluation of the other evidence and the procedural guarantees to compensate for the inability to cross-examine the witnesses at trial.

The Court therefore noted that the testimony of the child made on 13 July 2007 was not the only evidence on which the national courts relied to convict the applicant. In its decision of 6 April 2011 the Court of Appeals, ruling as a court of first instance, also relied on the various testimonies of witnesses before it, on the documents read during the hearing, on the memoranda of the defense attorneys, 162 no. / 2005 decision of the Court of First Instance and in the decision no. 4725/2007 of the Court of Appeal that amended the right of communication of the father with the child, prohibiting him to spend the night with his applicant father, and which concluded that the applicant’s ex-wife did not incite any sense of revenge against the latter. In addition, in its judgment of 19 December 2011 the Court of Appeals, as the appellate court, relied on the applicant’s conviction to clarify the testimony of the child’s testimony before the Investigator and in the absence of any objection. drafted by the social worker who had examined the child, as well as the decision of the Court of First Instance No. 1629/2005.

In addition, the ECtHR noted that although the five-member Court of Appeal held that it did not have sufficient material to convict its co-accused, it instead upheld the applicant’s conviction. He also noted that Article 226A came into force during the first-instance proceedings, while the appeal was still pending and that paragraph 5 provided the applicant with the opportunity to request further examination of his son by means of audiovisual means, which were not provided for in date of the disputed deposit in the Investigator. In any case, the applicant did not request it.

The above is sufficient for the Court to conclude that the the proceedings against the applicant were overall fair. The plaintiff has benefited from certain compensatory factors that have allowed him to adequately and effectively exercise his rights of defense.

Consequently, there was no violation of Article 6 §§ 1 and 3 d of the ECHR.

Article 6 in conjuction with Article 13

The Court considers that the period to be taken into account began when the Prosecutor ordered the preliminary examination (which is not specified but is between 28.12.2005, the date of the complaint by the child’s mother and 11.07.2006, the date on which the applicant was asked to provide explanations). The procedure was completed on 29.06.2012, the date of clarification of the decision of the Supreme Court. The procedure therefore took about 6 years and 6 months for three jurisdictions.

It noted that about 3 years had elapsed since his apology in the context of the preliminary examination (July 11, 2006) and his summons to be tried (August 5, 2009). The primary procedure lasted one year and eight months (from 05.08.2009 to 06.04.2011), the secondary procedure about eight months (from 06.04.11 to 19.12.2011) and the appellate procedure a little more than four months ( from 09.02. to 29.06.2012).

The ECtHR considers that some delays in certain stages of the proceedings are not sufficient to consider the length of the proceedings as a whole unreasonable, given that a delay of more than 6 months in the pre-trial stage and a delay of 11 months before the trial court is charged to the applicant. .

Given the complexity of the case and periods of inaction on the part of the applicant himself (application for replacement of experts, request for adjournment due to the impediment of his lawyer), the Court held that the reasonable time had not been exceeded within the meaning of Article 6 § 1 of the Convention.


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