FIFTH SECTION

Application no. 48144/09 Ludger CLEVE against Germany lodged on 7 September 2009

STATEMENT OF FACTS

The applicant, Mr Ludger Cleve , is a German national, who was born in 1963 and lives in Xanten . He is represented before the Court by Mr D. Röttgering , a lawyer practising in Gescher .

The circumstances of the case

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

1. Background to the case

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.

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.

On 18 January 2008 the Münster Public Prosecutor ’ s Office charged the applicant with fifteen counts of serious sexual abuse and of sexual abuse of a person entrusted to him for upbringing, 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.

The applicant was in detention on remand between 14 February 2008 and 26 February 2008, when the execution of the detention order was suspended.

2. The proceedings before the Regional Court

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.

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.

The Regional Court, having regard to the witness statements of two educators who had noted signs of a sexual abuse, two psychologists and a friend, was not persuaded that A. had been influenced by third persons, including her mother, so as to incriminate her father.

The Regional Court then stated in its judgment:

“ ... To sum up, the Chamber does not discern any signs of suggesti ve influence .

Therefore, the Chamber assumes, in sum, that the core events described by the witness have a factual basis, that is, that the a ccused 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.“ ]

The Regional Court further noted 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.

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 concerning the number of the offences (between 25 and 50), the place of the offences (notably concerning offences 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 offences were committed in the car and did not recall any details on several points.

The judgment was served on the applicant ’ s counsel on 11 November 2008 and subsequently became final.

3. The proceedings before the Federal Constitutional Court

On 9 December 2008 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He claimed that the Regional Court ’ s statement “ that the core events described by the witness have a factual basis, that is, that the a ccused 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.

On 10 March 2009 the Federal Constitutional Court declined to consider the applicant ’ s constitutional complaint (file no. 2 BvR 2499/08).

COMPLAINT

The applicant complains under Article 6 §§ 1 and 2 of the Convention that his right to a fair trial and the presumption of innocence were disregarded in the criminal proceedings against him . He submits that the Regional Court, in its written judgment, expressed the opinion 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 ”. This statement amounted to a finding of guilt despite the fact that the Regional Court acquitted him on account of insufficiency of proof in its judgment. As a result, the family courts further excluded any contacts with his only daughter.

QUESTION TO THE PARTIES

Was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case?