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AS TO THE ADMISSIBILITY OF

Application No. 20708/92

by H.S.

against Sweden

The European Commission of Human Rights (Second Chamber) sitting in

private on 11 January 1994, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

Mr. K. ROGGE, 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 15 April 1992 by H.S.

against Sweden and registered on 28 September 1992 under file No.

20708/92;

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

Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

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

summarised as follows.

The applicant is a German citizen, born in 1943. He resides at

Billesholm, Sweden. Before the Commission he is represented by Mr. Peter

Klevius.

The applicant and his wife have two children, a son born in 1968 and

a daughter born in 1970. In December 1985 the applicant contacted the

child and youth psychiatric unit at Helsingborg, asking for advice since

an incident of alleged sexual abuse had occurred in the family involving

his daughter.

Four years later the applicant was reported to the police for having

sexually abused his daughter. Among a number of alleged incidents of

sexual abuse he was interrogated about, was the incident which he himself

had reported to the authorities in 1985.

Subsequently, the applicant was charged with having sexually abused

his daughter on several occasions beginning in the summer of 1980 and

until the end of 1985 and thereafter from January 1987 to the summer of

1987. The trial in the District Court (tingsrätten) of Helsingborg took

place in September 1990. The applicant requested a court order to the

effect that his daughter should undergo a psychological examination by

a psychologist specialised in the evaluation of witnesses' statements.

This request was refused. During the trial in the District Court the

applicant was heard as well as his daughter and four witnesses. Based on

an evaluation of the evidence submitted the District Court found the

applicant guilty of the charges brought against him by judgment of

2 October 1990 and sentenced him to three years' imprisonment. He was

furthermore ordered to pay 200,000 SEK in damages to his daughter.

The applicant appealed against this judgment to the Court of Appeal

(Hovrätten) of Skåne and Blekinge. During the trial in the Court of

Appeal he again requested a psychological opinion on his daughter.

The Court of Appeal refused his request, stating that since the

daughter was not a minor and thus could be present and questioned during

the trial and since she did not appear to suffer from any mental illness,

there was no need for a psychological opinion. The Court of Appeal

further stated that the daughter's credibility and the trustworthiness

of her statements should be assessed on the basis of her statements

before the Court and the assessment the Court could make of her during

the trial. The Court of Appeal upheld the District Court's judgment on

14 May 1991.

The applicant subsequently applied for leave to appeal to the

Supreme Court (Högsta domstolen). Again he requested an order for a

psychological opinion on his daughter. The Supreme Court refused leave

to appeal on 20 February 1992.

COMPLAINTS

With reference to Article 6 of the Convention the applicant

complains that he has been wrongly convicted and that he did not get a

fair trial by an impartial tribunal either in the District Court or in

the Court of Appeal. Both the judges and the prosecution were unduly

influenced by the current atmosphere around incest cases in Sweden. By

ignoring his submissions and relying instead on the statements of his

daughter the courts denied him his right to a fair hearing.

The applicant furthermore complains of the fact that he was denied

a psychological examination of his daughter. He considers this to be a

sign of partiality on behalf of the courts.

THE LAW

The applicant complains that he was wrongly convicted by the Swedish

courts.

With regard to the judicial decisions of which the applicant

complains, the Commission recalls that, in accordance with Article 19

(Art. 19) of the Convention, its only task is to ensure the observance

of the obligations undertaken by the Parties in the Convention. In

particular, it is not competent to deal with an application alleging that

errors of law or fact have been committed by domestic courts, except

where it considers that such errors might have involved a possible

violation of any of the rights and freedoms set out in the Convention.

The Commission refers, on this point, to its constant jurisprudence

(see e.g. No. 1140/61, Dec. 19.12.61, Collection 8 p. 57; No. 7987/77,

Dec. 13.12.79, D.R. 18 p. 31 and No. 10486/83, Dec. 9.10.86 D.R. 49

p. 86).

The applicant also complains that he did not get a fair trial by an

impartial tribunal within the meaning of Article 6 (Art. 6) of the

Convention and he refers in this regard both to the current atmosphere

around incest cases and to the fact that the courts refused to order a

psychological examination of his daughter.

With regard to the alleged influence from the public discussion

about incest cases in Sweden it is true that the Commission has accepted

that in some cases a virulent press campaign can adversely affect the

fairness of a trial and involve the State's responsibility, particularly

where it is sparked off by one of the State's organs (cf. No. 1476/62;

Dec. 23.7.63, Collection 11 p. 31; and No. 3444/67, Dec. 16.7.70 Yearbook

13 p. 302).

The applicant does not claim, however, that any campaign has been

instituted against him in particular and under such circumstances the

Commission cannot find any indication that the atmosphere in general had

any impact on the impartiality of the courts or the fairness of the

trial.

As regards the applicant's claim that the courts' refusal to order

a psychological examination of his daughter was a sign of partiality as

well as a denial of his right to a fair trial, the Commission recalls

that when examining the question of fairness its task is to ascertain

whether the proceedings considered as a whole, including the way evidence

was taken, were fair (cf. for example Eur. Court H.R., Kostovski judgment

of 20 November 1989, Series A no. 166, p. 19, para. 39).

In the present case the Commission recalls that the applicant wanted

a psychological examination of his daughter due to the fact that he

considered her credibility and trustworthiness to be open to doubt. The

Court of Appeal, however, refused the applicant's request since the

daughter was heard in court and as, in these circumstances, it was for

the Court itself to determine the question of credibility and

trustworthiness.

Having regard to this the Commission does not find that the national

courts failed to consider relevant evidence or rejected the applicant's

motions in an arbitrary and unfair manner. Consequently, an examination

of the applicant's complaints under Article 6 (Art. 6) of the Convention

does not disclose any appearance of a violation of the said Article.

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.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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