Instantie

Europese Commissie voor de Rechten van de Mens

Samenvatting

De klacht van Finkensieper was op 30 november 1994 ontvankelijk verklaard (RN
1996, nr. 543). Na de ontvankelijkverklaring gaat de Commissie over tot een
onderzoek. Er is een mogelijkheid tot minnelijk schikking, maar hiervan wordt
geen gebruik gemaakt. Finkensieper heeft de zaak aanhangig gemaakt en het
Panel van Ministers heeft op 14 maart 1996 beslist dat de zaak niet door het
Hof zal worden behandeld. De zaak blijft bij het Comité van Ministers voor
het nemen van een artikel 32-EVRM beslissing.
De Commissie stelt in deze zaak nogmaals dat in ernstige zedenzaken de voor
de verdachte bestaande belangen van een eerlijke rechtspleging moeten worden
verzoend met het recht op privé-leven van het slachtoffer.
Zie voor een verdere bespreking van deze zaak het artikel van Renée Kool,
EVRM en de slachtoffergetuige, Baegan, Doorson en Finkensieper, een stand
zaken.

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67. Notwithstanding that in the present case it would have been preferable to
hear C. in person, the Commission finds, taking into account the sensitive
nature of the case and the problems C. apparently experienced, that the
assessment of the Court of Appeal cannot be regarded as arbitrary or
unreasonable. Furthermore, the applicant, who had been C.’s doctor for a
number of years, knew C.’s identity and had the opportunity to comment on her
statements in the course of the proceedings against him.
68. In addition, C.’s own statement was not the only evidence on which the
Court of Appeal based its conviction as regards the charge involving C. The
court also had regard to other evidence, which supported C.’s statements,
namely:
– a statement before the police of V. a friend of C, whom she had met and had
associated with when both of them were patients in the `D.L.’ house and to
whom C. had confided that she was repeatedly being abused by the applicant
and who had advised C. to write about the matter to C.’s therapist;
– statements before the police and the investigating judge of K., a group
leader at the `D.L.’ house, who in 1988 had received a letter from C. about
the applicant’s abuse and who had taken the matter up with his superiors;
– statements before the police and the investigating judge of C.’s therapist
H.C., to whom C. had complaint that the applicant was abusing her; and
– statements before the police and the investigating judge of therapist A.H.,
who had treated C.’s friend V. and to whom C., V. and H.C. went in order to
discuss the applicant’s abuse of C.
69. The Commission observes that the group leader K., the therapist H.C. and
the therapist A.H. were all examined by the investigating judge in the
presence of the applicant’s lawyer, who had the opportunity to ask them
questions.
70. In these circumstances it cannot be regarded as unreasonable that the
Court of Appeal considered the statement of C. to be corroborated by other
evidence before it.
71. It is true that the applicant could not fully exercise his defence
rights, in particular with regard to witness C. However, the Commission,
considering the criminal proceedings against the applicant in their entirety,
having regard to the particular nature of the offenses at issue, and taking
into account the possibilities the applicant had to defend himself against
the charges against him, finds that in the particular circumstances to the
present case the applicant was not deprived of a fair trial within the
meaning of Article 6 of the Convention.

Conclusion
72. The Commission concludes, by 10 votes to 3, that in het present case
there has been no violation of Article 6 paras. 1 and 3 (d) of the
Convention.

Dissenting opinion of mr. H. Danelius joined by MM. L. Loucaides and J.
Mucha
I have voted against the conclusion that in the present case there had
been no violation of Article 6 paras. 1 and 3 (d) of the Convention. My
reasons were as follows.
In 1988, one of the applicant’s former patients, C., wrote a letter in which
she accused the applicant of sexual abuse. Subsequently, C. was not willing
to bring a formal complaint against the applicant, but she changed her mind
and, in February 1989, made a statement to the police. When, in December
1989, she was summoned to appear before the investigating judge, she failed
to appear and it was indicated by her or on her behalf that she did not wish
to testify. C. did not appear before the Regional Court, and the Court of
Appeal did not grant the applicant’s request that C. be heard by that court
and indicated as reason for its refusal that it could be expected that C., if
summoned, would not comply with her obligation to give evidence.
The applicant was convicted by both the Regional Court and the Court of
Appeal of sexual abuse committed against C. and three other former patients.
The Court of Appeal used as evidence, inter alia, the statement which C. had
made to the police.
Although there was also some other evidence in the case, it is clear that the
information that C. could provide was of considerable importance in
evaluating the charges against the applicant. Moreover, the defence had not
been present when C. had made her statement before the police, and the
reasons why C. had refused to testify before the investigating judge and
which also made the Court of Appeal refuse to summon her do not seem to have
been verified. In these circumstances, and while realising that the hearing
of C. before a court might well have been a painful experience for C., I
consider that the use as evidence of the statement she had made before the
police together with the fact that no attempt was made to hear her before the
Regional Court or the Court of Appeal did not take sufficiently into account
the rights of the defence.
Consequently, I consider that there has been in the present case a violation
of Article 6 paras. 1 and 3 (d) of the Convention.

Rechters

Mrs. Danelius, President, Thune, Jörundsson, Trechsel, Soyer, Schermers,Martinez, Loucaides, Geus, Nowicki, Cabral Barreto, Mucha, Svaby