AS TO THE ADMISSIBILITY OF

                      Application No. 26304/95

                      by Leif LINDQVIST

                      against Sweden

      The European Commission of Human Rights (Second Chamber) sitting

in private on 22 October 1997, the following members being present:

           Mrs   G.H. THUNE, President

           MM    J.-C. GEUS

                 G. JÖRUNDSSON

                 A. GÖZÜBÜYÜK

                 J.-C. SOYER

                 H. DANELIUS

                 F. MARTINEZ

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 J. MUCHA

                 D. SVÁBY

                 P. LORENZEN

                 E. BIELIUNAS

                 E.A. ALKEMA

                 A. ARABADJIEV

           Ms    M.-T. SCHOEPFER, Secretary to the Chamber

      Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

      Having regard to the application introduced on 30 August 1994 by

Leif Lindqvist against Sweden and registered on 25 January 1995 under

file No. 26304/95;

      Having regard to the reports provided for in Rule 47 of the Rules

of Procedure of the Commission;

      Having regard to the observations submitted by the respondent

Government on 19 November 1996 and the observations in reply submitted

by the applicant on 12 February 1997;

      Having deliberated;

      Decides as follows:

THE FACTS

      The applicant, a Swedish citizen, was born in 1954 and resides

in Huddinge.  Before the Commission he is represented by

Mr Krister Jansson, a lawyer practising in Stockholm.

      The facts of the case, as submitted by the parties, may be

summarised as follows.

      In June 1993 the applicant's eleven year old daughter, A, at the

time placed with foster parents, told her foster father that the

applicant had abused her sexually.  The foster father contacted the

social authorities which, in their turn, reported to the police.

      The police interviewed A on four occasions, on 23 and 30 June,

19 August and 1 September 1993.  A stated that she had been sexually

abused by the applicant several times between 1988 and 1993.  The

interviews were recorded on video tape.  Neither the applicant nor his

defence counsel was present during the interviews.

      On 7 October 1993 the public prosecutor notified the applicant,

in accordance with Chapter 23, Section 18 of the Code of Judicial

Procedure (Rättegångsbalken), of the suspicions against him.  The

applicant and his counsel received a copy of the report of the

preliminary investigation (förundersökningsprotokoll) and were given

an opportunity to submit observations and request additional interviews

and other investigative measures.  No such request was made, however.

      On 21 October 1993 the applicant was indicted for aggravated

sexual abuse of a minor (grovt sexuellt utnyttjande av underårig).

      The District Court (tingsrätten) of Huddinge heard the case on

1, 2, 3 and 8 November and 15 December 1993.  The applicant denied the

charges.  The video-taped police interviews of A were shown during the

hearings.  Video-taped interviews of A's step-brother were also shown.

The court further heard evidence from A's foster-father, her nursery

school teacher, A's mother - the applicant's wife - and, at the

applicant's request, his sister and a friend of the family.  Two

experts appointed by the court also gave evidence during the hearings.

The first expert, a physician who had examined A on 1 July 1993,

concluded that certain physical changes to A's genitals and anus

strongly indicated that she had been sexually abused.  The second

expert, a psychologist who had met A on three occasions, stated that

A appeared to be telling the truth.  At no point during the proceedings

in the District Court did the applicant or his counsel request that A

be heard.

      By judgment of 22 December 1993, the District Court convicted the

applicant and sentenced him to two and a half years' imprisonment.

      The applicant appealed to the Svea Court of Appeal (Svea

hovrätt).  At the applicant's request, the court appointed a new

counsel for him.  On 31 January 1994 the new counsel, challenging the

reliability of A's statements, requested that the public prosecutor re-

examine A.  The request was denied by the public prosecutor on

2 February 1994.  He noted that A had already been asked the questions

the counsel wanted to put to her and considered that A, who was

mentally retarded and had been greatly tormented by the previous

interviews, should not be subjected to further questioning.  By

decision of 4 February 1994, the Court of Appeal reached the same

conclusion.      The Court of Appeal held hearings in the case on 9, 10

and 15 February 1994.  The appellate court heard evidence from several

of the witnesses already examined by the District Court.  It also heard

the physician who had examined A.  The statements made by the

psychologist, as recorded in the District Court judgment, were read out

in court.  Again, A's evidence was put before the court through the

showing of the video-taped police interviews.  The applicant's counsel

reiterated the request for a re-examination of A, maintaining that she

should be asked about, inter alia, how often the alleged acts had

occurred and what had actually happened on these occasions.  The

counsel did not object to A's evidence being presented to the Court of

Appeal by way of video recordings, but claimed that the applicant had

an unconditional right under the Convention to have additional

questions put to her.  On 10 February the Court of Appeal again

rejected the request.  It noted that no request for additional

interviews had been made upon receipt of the preliminary investigation

report and considered that a re-examination of A would not add anything

of importance to the investigation in the case as A had already on

numerous occasions replied to the questions indicated by the

applicant's counsel.

      On 28 February 1994 the Court of Appeal upheld the District

Court's judgment.  The appellate court noted that the video-taped

police interviews of A constituted the main evidence in the case but

that A's statements had to be assessed with caution, as she had not

appeared before the courts.  Thus, the statements had to be considered

in the light of the other evidence presented to the court and of the

circumstances in which they had been given.  The Court of Appeal found

that certain details accounted for by A and her demeanour during the

interviews indicated that her statements to the police were true.  In

this connection, the court also had regard to the conclusions made by

the psychologist.  Moreover, A's statements corresponded well to what

she had told her foster-father.  The court further found the medical

evidence in the case to show that A had been subjected to sexual acts.

The court concluded that A's statements were reliable and thus based

its conviction on them.

      The applicant appealed to the Supreme Court (Högsta domstolen).

Invoking the Convention, he claimed that he had not been given a fair

trial as he had been refused a re-examination of A.  He requested the

Supreme Court to order the public prosecutor to re-examine her.

      On 7 April 1994 the Supreme Court refused leave to appeal.

COMPLAINTS

      Invoking Article 6 paras. 1 and 3 (d) of the Convention, the

applicant claims that he did not have a fair trial.  He submits that,

as the public prosecutor and the Court of Appeal refused his request

for a re-examination of A, he was not given an opportunity to put

questions to her.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 30 August 1994 and registered

on 25 January 1995.   On 4 September 1996 the Commission decided to

communicate the application to the respondent Government, pursuant to

Rule 48 para. 2 (b) of the Rules of Procedure.

      The Government's written observations were submitted on

19 November 1996.  The applicant replied on 12 February 1997.

THE LAW

      Invoking Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the

Convention, the applicant claims that he did not have a fair trial.

He submits that, as the public prosecutor and the Court of Appeal

refused his request for a re-examination of A, he was not given an

opportunity to put questions to her.

      Article 6 (Art. 6) reads, in so far as relevant, as follows:

      "1.  In the determination of ... any criminal charge

      against him, everyone is entitled to a fair ... hearing ...

      ...

      3.  Everyone charged with a criminal offence has the

      following minimum rights:

      ...

      d.  to examine or have examined witnesses against him and

      to obtain the attendance and examination of witnesses on

      his behalf under the same conditions as witnesses against

      him;

      ..."

      The Government submit in the first place that it may be

questioned whether the applicant has exhausted domestic remedies taking

into account that his counsel did not request to be present during the

police interviews of A and that no request for further questioning of

her was made prior to the appeal against the conviction by the District

Court although the applicant had been given an opportunity to make such

a request when being served a copy of the report of the preliminary

investigation.  In the alternative, the Government question whether the

applicant, in the circumstances, must not be regarded as having waived

his right to confront A or whether he can at all claim to be a victim

of a violation of the Article invoked.

      Should the above submissions not be accepted, the Government

maintain that the application is manifestly ill-founded.  Reiterating

that the applicant failed to request further questioning when given an

opportunity to do so, the Government further point to the fact that the

applicant's conviction was not based solely on A's statements but also

on other evidence which corroborated the statements.  Moreover, the

Court of Appeal expressly stated that A's statements had to be assessed

with particular care and thus showed special diligence in examining the

video tapes in question.  However, the fact that the statements were

invoked in the form of video tapes gave the court a much better

opportunity to assess their value as evidence than if other techniques

of reproducing statements had been employed.  The Government also claim

that the interests of the applicant had to be balanced against those

of A.  In this context, the inconvenience for A to undergo further

questioning several months after the police interviews should be taken

into account, especially in view of her mental retardation.  Moreover,

as she had been repeatedly asked the kind of questions the applicant

wanted to pose, it was less than likely that further questioning would

give any new information.   The applicant submits that certain

contradictions in his daughter's statements came to light at the

District Court trial and that he therefore considered further

questioning of her to be necessary.  He exhausted domestic remedies by

appealing to the Supreme Court.  He did not waive his rights.

Moreover, he is a victim of a violation of Article 6 (Art. 6) as he was

denied the minimum right of examining A.  As to the merits of the case,

the applicant asserts that his conviction was based, in all essential

parts, on A's statements.  These statements were contradictory and, in

some respects, contrary to other information in the case.  Moreover,

they were given by a mentally retarded girl.  Against this background,

the supporting evidence adduced by the prosecutor had to be of

particular strength.  According to the applicant, this was not the

case.  Furthermore, another interview of A could not be considered to

have been particularly onerous for her, bearing in mind that she had

already been questioned on four occasions.  Also, the possible harm to

her had to be balanced against the risk of the applicant being

wrongfully convicted.  The Government's contention that no new

information would be forthcoming at a supplementary questioning of A

is, in the applicant's view, pure speculation.

      As regards the Government's preliminary objections, the

Commission notes that the applicant did not request to put questions

to A during the pre-trial stage of the criminal proceedings, nor did

he make such a request before the District Court.  The Commission

recalls, however, that in his appeal to the Court of Appeal, he asked

for a re-examination of A.  Reiterating that request during the

subsequent hearing, he claimed that he had an unconditional right under

the Convention to question A.  The Court of Appeal considered the issue

and decided to reject the request.  In his further appeal to the

Supreme Court, the applicant again invoked the Convention, maintaining

that he had been denied a fair trial as the requested re-examination

had been refused.  In these circumstances, the Commission finds that

the applicant provided the Swedish courts with the opportunity to

prevent or to put right the violation alleged by him.  The objection

based on a failure to exhaust domestic remedies under Article 26

(Art. 26) of the Convention is therefore unfounded.  For the same

reasons, the Commission finds that the applicant did not waive his

right to question A and that he can claim, under Article 25 (Art. 25),

to be a victim of a violation of Article 6 (Art. 6).

      As to the merits of the complaint, the Commission first notes

that the guarantees in para. 3 (d) of Article 6 (Art. 6-3-d) are

specific aspects of the right to a fair trial set forth in para. 1 of

this Article.  Consequently, the Commission will consider the

complaints under the two provisions taken together (cf. Eur. Court HR,

Asch v. Austria judgment of 26 April 1991, Series A no. 203, p. 10,

para. 25, and Lala and Pelladoah v. the Netherlands judgments of 22

September 1994, Series A no. 297, p. 12, para. 26, and p. 33, para.

33).

      The Commission recalls that the admissibility of evidence is

primarily governed by the rules of domestic law, and that, as a rule,

it is for the national courts to assess the evidence before them.  The

task of the Convention organs is to ascertain whether the proceedings

in their entirety, including the way in which evidence was taken, were

fair (cf. Asch v. Austria judgment, ibid., p. 10, para. 26, and Eur.

Court HR, Edwards v. the United Kingdom judgment of 16 December 1992,

Series A no. 247-B, pp. 34-35, para. 34).   All evidence must normally

be produced in the presence of the accused at a public hearing with a

view to adversarial argument.  However, the use in evidence of

statements obtained at the stage of the police inquiry and the judicial

investigation is not in itself inconsistent with paragraphs 3 (d) and

1 of Article 6 (Art. 6-3-d, 6-1), provided that the rights of the

defence have been respected.  As a rule, these rights require that the

defendant be given an adequate and proper opportunity to challenge and

question a witness against him either when he was making his statements

or at a later stage of the proceedings (Eur. Court HR, Saïdi v. France

judgment of 20 September 1993, Series A no. 261-C, p. 56, para. 43).

      As to the notion of "witness", the Commission recalls that

although A did not testify at a court hearing, she should, for the

purposes of Article 6 para. 3 (d) (Art. 6-3-d) of the Convention, be

regarded as a witness - a term to be given its autonomous

interpretation - because her statements, as recorded by the police,

were used in evidence by the domestic courts (cf. Asch v. Austria

judgment, ibid., p. 10, para. 25).

      The Commission further recalls that Article 6 (Art. 6) does not

grant the accused an unlimited right to secure the appearance of

witnesses in court.  It is normally for the national courts to decide

whether it is necessary or advisable to hear a witness (cf. Eur. Court

HR, Bricmont v. Belgium judgment of 7 July 1989, Series A no. 158, p.

31, para. 89, and Baegen v. the Netherlands, Comm. Report 20.10.94,

para. 74, Eur. Court HR, Series A no. 327-B, p. 44).

      The Commission notes that it appears from the Court of Appeal's

judgment that it based its finding of guilt mainly on the statements

made by A.  It must therefore be examined whether the applicant was

provided with an adequate opportunity to exercise his defence rights

within the meaning of Article 6 (Art. 6) of the Convention in respect

of the evidence given by her.

      The Commission recalls that A never appeared before the courts.

Instead, her evidence was given to the police at four interviews, the

video recordings of which were shown during the court hearings.

Neither the applicant nor his counsel asked questions, directly or

indirectly, to A.  However, when served a copy of the report of the

preliminary investigation, they had been given an opportunity to

request additional questioning of her.  No such request was made at

that time.  Instead, it was not until the applicant, represented by new

counsel, appealed to the Court of Appeal that a request for a

re-examination of A was made.

      The Commission further recalls that, in rejecting the applicant's

request, the public prosecutor and the Court of Appeal considered that

a re-examination of A would not add anything of importance to the

investigation in the case as A had already on numerous occasions

replied to the questions indicated by the applicant's counsel.  The

public prosecutor further considered that A had been greatly tormented

by the previous interviews and should not be subjected to further

questioning.

      The Commission has regard to the special features of criminal

proceedings concerning sexual offences.  Such proceedings are often

conceived of as an ordeal by the victim, in particular when the latter

is unwillingly confronted with the defendant.  In the assessment of the

question whether or not in such proceedings an accused received a fair

trial, account must be taken of the right to respect for the victim's

private life.  Therefore, the Commission accepts that in criminal

proceedings concerning sexual abuse certain measures may be taken for

the purpose of protecting the victim, provided that such measures can

be reconciled with an adequate and effective exercise of the rights of

the defence (Baegen v. the Netherlands, ibid., para. 77, p. 44).

      Notwithstanding that it would have been preferable if questions

posed not only by the police but also by the defence had been put to

A, the Commission finds that the decision of the Court of Appeal not

to re-examine A cannot be regarded as arbitrary or unreasonable.  In

so finding, the Commission takes into account the sensitive nature of

the case and the problems A apparently experienced.  It also notes that

the applicant failed to avail himself of the opportunity to request

that additional questions be put to A in October 1993, about a month

after the last police interview and thus at a time when a further

interview was likely to be less disturbing to A than during the appeal

proceedings several months later.  He did not make any such request

before the District Court either.  Further regard should be had to the

Court of Appeal's finding that A, during the police interviews, had

already replied to the questions indicated by the applicant's counsel.

Furthermore, the applicant had the opportunity to challenge A's

statements and her reliability as well as the other evidence against

him in the course of the criminal proceedings.

      The Commission recalls that evidence obtained from a witness

under conditions in which the right of the defence cannot be secured

to the extent normally required by the Convention should be treated

with extreme care (cf. Eur. Court HR, Doorson v. the Netherlands

judgment of 26 March 1996, Reports 1996-II, No. 6, p. 472, para. 76),

Noting the express declaration of the Court of Appeal that A's

statements had to be assessed with caution as she had not appeared

before the courts, the Commission is satisfied that the necessary care

was applied in the evaluation of those statements.

      In addition, A's statements were not the only evidence on which

the applicant's conviction was based.  The courts also had regard to

evidence given by other witnesses, including two experts witnesses -

a physician and a psychologist - who had examined A.  In its judgment

of 28 February 1994, the Court of Appeal considered, after a thorough

examination of the available evidence, inter alia that A's statements

corresponded well to what she had told her foster-father and that the

medical evidence in the case showed that she had been subjected to

sexual acts.  These items of evidence were thus found to corroborate

her statements.

      In these circumstances, the Commission considers that the

criminal proceedings against the applicant, considered as a whole,

cannot be regarded as unfair.

      It follows that the application is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

      For these reasons, the Commission, unanimously,

      DECLARES THE APPLICATION INADMISSIBLE.

         M.-T. SCHOEPFER                       G.H. THUNE

            Secretary                           President

      to the Second Chamber               of the Second Chamber