CASE OF CLEVE v. GERMANY
Violation of Article 6 - Right to a fair trial (Article 6-2 - Charged with a criminal offence)
Aleš Pejchal;André Potocki;Angelika Nußberger;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano
5. The applicant was born in 1963 and lives in Xanten. 6. The applicant’s daughter A. was born on 9 March 1994. Since their separation in September 1994, the applicant and A.’s mother, Ms J., have been quarrelling over the custody of and contacts with A. The child was initially living with her mother. In 2004, A. was placed in a home. 7. On 9 November 2006 Ms J. laid an information against the applicant with the police, accusing him of having raped their daughter since 1998. As A. had persistently declared not to be ready to make a statement before the police, the proceedings were initially discontinued. Following a visit of A. to her mother, the latter informed the police that A. was now ready to testify. A. was heard by the police twice in May 2007. On 5 November 2007 psychological expert K., having examined A., submitted a report on the credibility of A.’s submissions. 8. On 18 January 2008 the Münster Public Prosecutor’s Office charged the applicant with fifteen counts of serious sexual abuse of children (Article 176a of the Criminal Code, see paragraph 19 below) and of sexual abuse of a person entrusted to him for upbringing (Article 174 of the Criminal Code, see paragraph 20 below), his daughter A., committed between the beginning of 2002 and summer 2004 mostly in or in the vicinity of Senden. The applicant was accused of having raped A. in his car on thirteen occasions and in a holiday apartment on two occasions when he met her on weekends and during vacations following her parents’ separation. 9. The applicant was in detention on remand between 14 February 2008 and 26 February 2008, when the execution of the detention order was suspended. 10. On 17 September 2008 the Münster Regional Court, having held five hearings, acquitted the applicant of the charges on account of insufficiency of proof. It further ordered the Treasury to bear the costs of the proceedings and the applicant’s necessary expenses and to pay the applicant compensation for his detention on remand from 14 to 26 February 2008. 11. The Regional Court, having regard to the testimonies of several witnesses and the (diverging) reports of two psychological experts, K. and B., on the credibility of A.’s submissions, found that the offences the applicant had been charged with had not been proven with the certainty necessary for a criminal conviction. It noted that the applicant had contested the charges. He was only incriminated by A.’s statements. The Regional Court stated that it has not been convinced by A.’s testimony in the hearing that the charges were completely correct, in particular, in terms of a clear definition of the criminal acts and their time frame. 12. The Regional Court, having regard to the witness statements of two educators who had noted signs of sexual abuse in A.’s conduct, two psychologists who had treated A. and a friend of A., was not persuaded that A. had been influenced by third persons, including her mother, so as to incriminate her father. 13. The Regional Court then stated in its judgment: “... To sum up, the Chamber does not discern any signs of suggestive influence. Therefore, the Chamber assumes, in sum, that the core events described by the witness have a factual basis, that is, that the accused actually carried out sexual assaults on his daughter in his car. Nevertheless, the acts could not be substantiated, in terms of either their intensity or their time frame, in a manner that would suffice to secure a conviction. The inconsistencies in the witness’s testimony were so marked that it was impossible to establish precise facts.” [“... Zusammengefasst sind Anhaltspunkte einer Suggestion für die Kammer nicht ersichtlich. So geht die Kammer im Ergebnis davon aus, dass das von der Zeugin geschilderte Kerngeschehen einen realen Hintergrund hat, nämlich dass es tatsächlich zu sexuellen Übergriffen des Angeklagten zu Lasten seiner Tochter in seinem Auto gekommen ist. Die Taten ließen sich aber dennoch weder ihrer Intensität noch ihrer zeitlichen Einordnung nach in einer für eine Verurteilung hinreichenden Art und Weise konkretisieren. Die Inkonstanzen in den Aussagen der Zeugin waren so gravierend, dass konkrete Feststellungen nicht getroffen werden konnten.“] 14. In coming to that conclusion, the Regional Court took into account that witness A. had made the impression of being authentic. It was true that her statements had been short and she had appeared being relatively uninvolved. However, seven witnesses who knew A. partly for a longer period of time had confirmed that she generally spoke and acted in that manner and did not discuss problems in detail. 15. The Regional Court observed, however, that even having regard to these elements, the inconsistencies in witness A.’s statements prevailed to an extent that it was not in a position to establish concrete offences. There were inconsistencies in the witness’s statements on the number of the acts described by her (between 25 and 50), the place of these acts (notably concerning acts in a holiday apartment which the witness mentioned only at a later stage) and the time frame in which they took place (starting when the witness was between four and eight and ending either on the witness’s placement in the home or continuing also after that placement). Moreover, A. had been uncertain in the hearing about the exact manner in which the acts described by her were committed in the car and did not recall any details on several points. A. had, for instance, been very uncertain in the hearing whether the applicant had moved within the car onto the front passenger seat where she had sat or whether he had left the car and walked around it to come on her seat. Moreover, A. had declared several times in the hearing not to have any precise recollection of the events any more. 16. The judgment was served on the applicant’s counsel on 11 November 2008 and subsequently became final. 17. On 9 December 2008 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He claimed that the Regional Court’s statements “that the core events described by the witness have a factual basis, that is, that the accused actually carried out sexual assaults on his daughter in his car” had breached his constitutional right to a fair trial, his personality rights and human dignity. 18. On 10 March 2009 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (file no. 2 BvR 2499/08). The decision was served on the applicant’s counsel on 19 March 2009.