BAEGEN v. THE NETHERLANDSDISSENTING OPINION OF Mr. C.A. NØRGAARD

Doc ref: • ECHR ID:

Document date: October 20, 1994

Doc ref: • ECHR ID:

Document date: October 20, 1994

Cited paragraphs only

DISSENTING OPINION OF Mr. C.A. NØRGAARD

JOINED BY MM. A. WEITZEL, A.S. GÖZÜBÜYÜK, J.-C. SOYER, F.

MARTINEZ, C.L. ROZAKIS, Mrs. J. LIDDY, MM. J. MUCHA, E.

KONSTANTINOV AND D. SVÁBY

To my regret I cannot agree with the opinion of the majority

of the Commission that there has been no violation of Article 6

paras. 1 and 3 (d) of the Convention.

With regard to the applicant's refusal to undergo a blood

and saliva test I note that the result of such a test could not

prove the charge of rape.

Being aware - on the one hand - of the difficulties of

obtaining and producing evidence in cases concerning sexual

offences, and of the position of victims of such offences as

witnesses in criminal proceedings against the suspected offender,

and - on the other hand - recalling the prominent place of the

right to a fair administration of justice in a democratic

society, on balance, I cannot find that the handicaps under which

the defence laboured were outweighed by the procedures followed

by the Dutch judicial authorities.

The proceedings did not, therefore, grant the applicant a

fair trial as guaranteed by Article 6 paras. 1 and 3 (d) of the

Convention.

(Or. English)

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