DISSENTING OPINION OF JUDGE MARUSTE

With some hesitation I voted against finding a violation because I found the alleged violation somewhat formal and minimal in nature and considered that the finding of a violation would cross the border between the supervisory role of the Court and the prerogative of the domestic courts in assessing the evidence and in weighing up the conflicting interests .

The i nvestigation and adjudication of cases involving sexual abuse of minor children is always very complicated, sensitive and delicate. In these matters the international court should be very cautious in drawing conclusions on formal grounds, not having any direct contact with the case and with the persons involved. It seems to me that the domestic authorities did what they were reasonably expected to do in such a case – they took into account the best interests of the children, asked for a specialist ' s opinion about the children ' s status and the credibility of their statements and made an analysis of the applicant ' s allegation of a violation of his minimum C onvention rights under Article 6 § 3 (d). The courts recognised the discrepancies pointed out by the applicant and acknowledged that there had been a certain infringement of the applicant ' s C onvention rights. The D istrict C ourt also agreed that the probative value of the children ' s statements was weakened but nonetheless found that the statements were reliable , the various items of evidence corroborated one another and the infringement was justified. The Court of Appeal reached the same conclusion as the lower court and reduced the sentence.

Two more things have to be pointed out. First ly, the applicant never asked or insisted that the witnesses be heard before the court. He only insisted at the very end of the preliminary investigation stage that a question be put to the children . Secondly , it falls within the discretion of the investigati ng authorities and the courts to decide whether or not to hear direct evidence from the children and what questions to put to them. I leave open the question whether the right to examine witnesses applies to an equal extent during the investigation and the trial stage and whether the problem, if there is one, could be remedied at the trial stage. It is clear that in the case at hand the applicant had the opportunity to ask for the children to be question ed during the trial stage, but he failed to do so .

It has to be believed that the authorities had good grounds under the circumstances not to subject children younger than 10 years to unnecessary harm or inconvenience. Our Court has accepted that in criminal proceedings concerning sexual abuse certain measures may be taken for the purpose of protecting the victims, provided that such measures can be reconciled with the basic rights of the defence under the C onvention (see , mutatis mutandis , Baegen v. the Netherlands , judgment of 27 October 1995 , Series A no. 327-B ). It seems to me that this case falls into this category and t he measures taken were proportionate and counterbalanced and did not reach the level of a substanti ve violation of the Convention.