PARTLY DISSENTING OPINION OF JUDGE YUDKIVSKA

Whilst I fully share the position of the majority to the effect that the investigation into the applicant’s complaint of sexual abuse lasted too long, in breach of Article 3, I cannot agree that Article 8 was also violated in the present case.

The case concerns the fair balance which is to be struck between the interests of the defence in a criminal trial and those of a victim who is called upon to testify. Having carefully studied the available case materials, I find it difficult for the international court to suggest what additional steps could have been taken by the presiding judge to protect the applicant’s interests to an extent which would not have amounted to a violation of the fair-trial rights of the defendant.

This Court has examined under Article 8 a number of cases introduced by rape victims, in which the authorities failed to meet their positive obligations to conduct an effective investigation into the allegations of sexual abuse (see, among the most recent examples, the cases of C.A.S. and C.S. v. Romania and D.J. v. Croatia , with further references [1] ); however, it had not previously examined in such detail the issue of questioning during the trial proceedings.

Moreover, in its innovatory judgment in the case of M.C. v Bulgaria [2] the Court stated that in the circumstances of that case its task was limited “to examin[ing] whether or not the impugned legislation and practice and their application in the case at hand, combined with the alleged shortcomings in the investigation, had such significant flaws as to amount to a breach of the respondent State’s positive obligations under Articles 3 and 8 of the Convention...The Court [was] not concerned with allegations of errors or isolated omissions in the investigation...”

Nonetheless, in that case the Court criticised the authorities for the failure to “explore all the facts and decide on the basis of an assessment of all the surrounding circumstances...” (see paragraph 181 of the M.C. judgment). In the present case, in contrast, it appears that the domestic judicial authorities are being criticised for a failure to disallow questions which might potentially have shed additional light on the circumstances of the case.

Practising lawyers know only too well how difficult it is to prosecute rape cases successfully, for a number of reasons – these crimes are rarely witnessed by others, corroborating physical evidence is lacking, there is an obvious difficulty in proving the accusation, and so on.

The prosecution thus tends to rely heavily on victim testimony, which quite often serves as the main ground for conviction. The only defence tactic for a defendant in such cases is to disprove the veracity of the victim’s statements and to challenge her credibility. It is therefore unsurprising that the questions put by a defendant can be too intimate and intrusive – precisely in order to allow the judge to observe the victim’s demeanour under cross-examination. This is the very core of a defendant’s right to examine witnesses against him.

Some 120 years ago the US Supreme Court defined the “primary object” of the confrontation clause as being “to prevent depositions or ex parte affidavits ... being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanour upon the stand and the manner in which he gives his testimony whether he is worthy of belief [3] .

The right to confrontation has a long and rich history dating back to Roman law and has become widely developed in common-law systems, where its crux lies in a belief that “[i]t is always more difficult to tell a lie about a person ‘to his face’ than ‘behind his back’, and “even if the lie is told it will often be told less convincingly”. This was explained by Justice Antonin Scalia in the US Supreme Court’s landmark judgment in this respect, Coy v. Iowa [4] . In that judgment Justice Scalia traced the history of the right to confront as a “face-to-face encounter”, illustrated in Shakespeare’s Richard II:

“Shakespeare was thus describing the root meaning of confrontation when he had Richard the Second say:

‘Then call them to our presence—face to face, and

frowning brow to brow, ourselves will hear the accuser

and the accused freely speak.’ [5] ”

He concluded that “there is something deep in human nature that regards face-to-face confrontation between accused and accuser as ‘essential to a fair trial in a criminal prosecution’”. In California v. Green the right to confrontation was described as the “greatest legal engine ever invented for the discovery of the truth” [6] .

Contrary to the USA Constitution, the Convention does not guarantee as such a right to face-to-face confrontation between the accused and victim. Still, in many cases, also related to the sexual abuse of minors, the Court has found that the guarantees of a fair trial were not respected if at no stage of the proceedings the defendant was able to put questions to an alleged victim (see, as one of the recent examples, the case of Vronchenko v. Estonia [7] ). The aim of the guarantee in Article 6 § 3 (d) of the Convention is the same – to assist the court in observing the demeanour of a witness under direct examination. This provision not only operates to protect the interests of the defence; it also serves justice in a more general way – it assists in establishing the truth, since questions put by the defence not only allow the witness’s credibility to be tested, they also bring to light further elements of fact which may be important for the court’s conclusions [8] . In my opinion, in this recent case the majority disregarded this essential element of the defendant’s right to examine the key witness against him.

In the case at hand, the applicant was an alleged victim of sexual assault, which is one of the gravest crimes against one’s physical integrity, and one which causes deep trauma to a victim. It has been argued that “[e]xcept for murder, the crime of rape is the ultimate invasion, the one with the most severe physical and psychological consequences for its victim” [9] . It goes without saying that the court proceedings represent additional trauma for a rape victim, especially for one who is a minor. Thus, it is obvious that considerations of ensuring sufficient psychological comfort of the victim are important and may, in certain cases, outweigh the accused’s right to confrontation.

The Directive of 25 October 2012 of the European Parliament and of the Council (2012/29/EU) establishing minimum standards on the rights, support and protection of victims of crime, indicates that measures are to be available for the most vulnerable victims, including “measures to avoid unnecessary questioning concerning the victim’s private life not related to the criminal offence”, and “measures allowing a hearing to take place without the presence of the public” (Article 23 § 2 (c) and (d) ).

Other international documents on protection of victims, including those cited in the judgment, whilst concentrating on victims’ rights in the course of criminal proceedings, also stress the importance of the rights of the defence. It appears uncontested that completely sacrificing the right of the accused in order to ensure the victim’s psychological comfort is a step towards obtaining a wrong decision.

In the present case it worth mentioning that although the alleged events occurred when the applicant was between 14 and 15 years old, the court proceedings took place five or six years later, when, firstly, her trauma cannot be said to have still been rankling to the same extent as immediately after the event, and, secondly, she was already an adult. It is therefore difficult to argue that she was particularly vulnerable at the time of the court examination.

Furthermore, it is of utmost importance that the applicant’s questioning took place in the absence of the public (see the above-mentioned Directive). Moreover, the court granted her requests to have X removed from the courtroom while she was questioned. Besides, as also noted by the majority, some of X’s questions were prohibited by the presiding judge where the latter considered them to be irrelevant to the case. What more could have been done by the judge in order to protect the applicant’s rights while still having an opportunity to assess the victim’s credibility?

The majority considers that “most of X’s questions were of a distinctly personal nature” (see paragraph 107 of the judgment). I absolutely agree with that finding, and I can hardly imagine any question of a non-personal nature that an accused who considers himself innocent could put to a victim defaming him, as he believes. Some of X’s remarks were in reality aimed at presenting the negative aspects of the applicant’s character, yet the majority defines them as “offensive insinuations” exceeding “the limits of what could be tolerated for the purpose of enabling him to mount an effective defence”. It is obvious that the aim of those remarks was to challenge the applicant’s credibility and to enable the judge to observe her demeanour under this provocative questioning – which is, again, the crux of any confrontation in the courtroom.

Certainly, the manner in which X built his line of defence brought additional stress to the applicant, who had already been deeply traumatised. Still, the present situation is significantly different from the case of Brandstetter v. Austria [10] referred to by the majority, since in that case the applicant, in the course of proceedings against him for adulterating wine (an offence for which he could only be fined, and which, in principle, is incomparable with a rape accusation), deliberately and falsely accused an official of an offence in order to manipulate evidence, thus exposing the latter to the risk of disciplinary sanctions. In the present case, “offensive insinuations” such as the comments that “the applicant could cry on cue in order to manipulate people, that her distress might be eased by having dinner with him or that she had confided in him her desire to dominate men” are mostly value judgments and cannot be compared to a false, as X believed, accusation of sexual abuse. The degree of interference in one’s private life represented by those quoted remarks and by the accusation of having committed a grave crime is incommensurable. Thus, I cannot agree that X’s questions overstepped the admissible limits of defence, given that what was at stake for him was his honour and liberty.

In addition to criticising the way in which the confrontation between the applicant and X was conducted, the majority reproaches the domestic judicial authorities for not disqualifying X’s counsel M., who allegedly had some prior informal consultations with the applicant. This was not proved; however, “assuming that the applicant’s allegation was true” the majority has decided that the applicant would have felt better psychologically being cross-examined by another lawyer. Once more, had that been the case, then the applicant’s greater comfort would have been at the expense of X’s right to defend himself through legal assistance of his own choosing. The majority also stated, quite in abstracto , “that any information that M. might have received from the applicant in his capacity as a lawyer ... should have been treated as confidential and should not have been used to benefit a person with adverse interests in the same matter”. There is no evidence in the case file to the contrary.

Lastly, the majority criticises the questioning of the applicant by the gynaecologist B., namely the fact that the latter “confronted the applicant with the findings of the police and orthopaedics reports and questioned her on why she had not defended herself more vigorously”, thus “addressing issues that were indeed not related to the question he was requested to examine” (see paragraph 113 of the judgment). It is to be noted, however, that B. was entrusted with the task of “establish[ing] the probability of the applicant having engaged in sexual intercourse” (see paragraph 22), and thus he had to assess whether her testimony was reliable from a medical standpoint. Given that the applicant’s hymen was intact and that X could not have used his left arm to crush the applicant’s resistance, it cannot be said that B.’s questions were completely irrelevant to the report he had to present.

In view of the above considerations, and bearing in mind that, in cases such as the present one, the absence of a complete picture of the trial calls for self-restraint on the part of the international judge, I have voted for the finding that there was no violation of Article 8.

[1] . No. 26692/05 , 20 March 2012 and no. 42418/10, 24 July 2012.

[2] . N o. 39272/98, ECHR 2003 ‑ XII.

[3] . Mattox v. United States , 156 U.S. 237, 242-43 (1895).

[4] . 487 US 1012, 1016 (1988).

[5] . Richard II , Act I, scene I.

[6] . 399 US 149 (1970).

[7] . N o. 59632/09, 18 July 2013.

[8] . Stefan Trechsel, Human Rights in Criminal Proceedings , Oxford University Press, 2005, p. 293.

[9] . Janet L. Barkas , Victims, New York: Scribner’s, 1978 .

[10] . Judgment of 28 August 1991, Series A no. 211.