Resolution ResDH(2005)27

concerning the judgment of the European Court of Human Rights

of 20 December 2001 (4 September 2002)

in the case of P.S. against Germany

(Adopted by the Committee of Ministers on 25 April 2005

at the 922nd meeting of the Ministers ' Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the P rotection of Human Rights and Fundamental Freedoms, as amended by P rotocol No. 11 (hereinafter referred to as “the Convention”), Having regard to the judgment of the European Court of Human Rights in the P .S. case delivered on 20 December 2001 and transmitted to the Committee of Ministers once it had become final under Articles 44 and 46 of the Convention; Recalling that the case originated in an application (No. 33900/96) against Germany , lodged with the European Commission of Human Rights on 9 July 1996 under former Article 25 of the Co n vention by Mr P .S. , a German national, and that the Court, seised of the case under Article 5, paragraph 2, of P rotocol No. 11, declared admissible the applicant ' s complaint that he had been convicted of sexual abuse of a minor and sentenced to seven months ' imprisonment on probation on the basis of the testimony given by the eight ‑ year ‑ old victim whom he had never been given an opportunity to examine or have examined in the course of the proceedings; Whereas in its judgment of 20 December 2001 the Court unanimously: - held that there had been a violation of paragraph 3 (d), taken in conjunction with paragraph 1, of Article 6 of the Convention as the applicant was found guilty, to a decisive extent, on the basis of the said testimony; Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention; Having invited the government of the respondent state to inform it of the mea s ures which had been taken in consequence of the judgment of 20 December 2001 , having regard to Germany ' s obligation under Article 46, paragraph 1, of the Conve n tion to abide by it; Whereas during the examination of the case by the Committee of Ministers, the government of the respondent state gave the Committee information about the individual measures taken to erase the consequences of the violations and the general measures taken in order to prevent new violations of the same kind as that found in the present judgment; this information appears in the appendix to the present resolution; Declares, after having examined the information supplied by the Government of Germany , that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case.

Appendix to Resolution ResDH(2005)27 Information provided by the Government of Germany during the examination of the P .S. case by the Committee of Ministers

As regards individual measures : In light of the specific circumstances of the case, the Heilbronn P ublic P rosecution Office has decided not to file an application for re-opening of the criminal proceedings at issue. Although the applicant has been informed of the possibility of filing such an application pursuant to section 359 No. 6 of the Code of Criminal P rocedure, he has not done so. Furthermore the applicant, who was not legally represented, was informed that he might also apply for a discretionary decision to erase his conviction from his criminal record under §49 of the Federal Central Criminal Register Act ( Bundeszentralregistergesetz ).

As regards general measures : The judgment of the European Court was disseminated to the judicial authorities concerned and published in Europäische Grundrechtezeitung (EuGRZ) 2002, p. 37 - 39 as well as in Neue Juristische Wochenschrift (NJW) 2003, 2893 - 2894. In the light of the direct effect given to the Convention on Human Rights and the judgments of the European Court of Human Rights by German courts (see, among many other examples, the case of Vogt against Germany , Resolution DH(97)12), the government is of the opinion that the domestic authorities will not fail to prevent new violations similar to that found in the present case.

In view of the foregoing, the government considers that Germany has fulfilled its obligations under Article 46 in this cas e.