DISSENTING OPINION OF Mr. H. DANELIUS

JOINED BY MM. L. LOUCAIDES AND J. MUCHA

I have voted against the conclusion that in the present case there had been no violation of Article 6 paras. 1 and 3 (d) of the Convention. My reasons were as follows.

In 1988, one of the applicant's former patients, C., wrote a letter in which she accused the applicant of sexual abuse. Subsequently, C. was not willing to bring a formal complaint against the applicant, but she changed her mind and, in February 1989, made a statement to the police. When, in December 1989, she was summoned to appear before the investigating judge, she failed to appear and it was indicated by her or on her behalf that she did not wish to testify. C. did not appear before the Regional Court, and the Court of Appeal did not grant the applicant's request that C. be heard by that court and indicated as reason for its refusal that it could be expected that C., if summoned, would not comply with her obligation to give evidence.

The applicant was convicted by both the Regional Court and the Court of Appeal of sexual abuse committed against C. and three other former patients. The Court of Appeal used as evidence, inter alia , the statement which C. had made to the police.

Although there was also some other evidence in the case, it is clear that the information that C. could provide was of considerable importance in evaluating the charges against the applicant. Moreover, the defence had not been present when C. had made her statement before the police, and the reasons why C. had refused to testify before the investigating judge and which also made the Court of Appeal refuse to summon her do not seem to have been verified. In these circumstances, and while realising that the hearing of C. before a court might well have been a painful experience for C., I consider that the use as evidence of the statement she had made before the police together with the fact that no attempt was made to hear her before the Regional Court or the Court of Appeal did not take sufficiently into account the rights of the defence .

Consequently, I consider that there has been in the present case a violation of Article 6 paras. 1 and 3 (d) of the Convention.