Background
The applicant, B.G., born in 1948 and living in Bitola, was convicted of sexually abusing E., a ten-year-old friend of his granddaughter, on 1 August 2021. On 3 August 2021, hours after E.’s father reported the incident, the prosecutor interviewed E. in the presence of her father, a lawyer appointed by the prosecutor, a social-work representative and a psychiatrist, Dr F.; the interview was audiovisually recorded. Neither the applicant nor his lawyer was present or notified, although the applicant was taken into police custody later that same day and appointed counsel. Dr F. later assessed E.’s account as truthful and advised against her further participation in the proceedings.
The applicant was twice convicted at trial. The first conviction in May 2022 (ten years’ imprisonment) was quashed by the Supreme Court on 30 November 2022 because the recording of E.’s testimony had not been properly adduced. On retrial, the recording was played and descriptively entered in the record; the trial court refused the defence’s request to examine E. directly or via technical means, citing her age and the late stage of the request, and refused to exclude her statement. On 29 June 2023 the applicant was convicted of sexual abuse of a person under 15 and sentenced to five years’ imprisonment, with compulsory hospitalisation. The Court of Appeal upheld the conviction on 28 May 2024, reasoning that the defence had been afforded an opportunity to put questions to E. in writing but had failed to do so; the Supreme Court dismissed the applicant’s extraordinary-review request on 16 October 2024.
The Court’s Holding
The Chamber, sitting with Arnfinn Bårdsen as President, declared the application admissible. It held that the Government were estopped from raising a possible non-exhaustion objection concerning the alleged leading nature of the questions put to E., because they had failed to raise it in their initial observations on admissibility, had offered no explanation for the delay, and no exceptional circumstances applied (Rule 55 of the Rules of Court).
On the merits, examined under Article 6 §§ 1 and 3 (d) taken together, the Court accepted that there were good reasons for E.’s non-examination at trial, given the protective measures for child victims of sexual abuse under domestic law and the expert advice against her further involvement. It also accepted, following the Supreme Court’s assessment in the first round of proceedings, that E.’s pre-trial statement was decisive evidence for the conviction, since all other witnesses had only indirect knowledge of the events.
The Court nevertheless found the counterbalancing factors insufficient. Playing the recording at trial could not, in the circumstances of this case, on its own protect the defence. The purported opportunity to submit written questions had not been made available with sufficient clarity: the general notice under section 302 of the Law on Criminal Procedure contained no explicit invitation to put questions to E., and the trial court, when refusing her examination, gave no indication that written questions remained possible. The authorities had organised the pre-trial interview without any participation, even indirect, of the defence, although domestic law provided for questioning via the conducting authority or an expert, and nothing indicated that such participation would have harmed E.’s interests. Nor did the domestic courts show specific caution in assessing E.’s statement, despite repeated defence complaints about leading questions. The Court found no waiver by the applicant, who had consistently challenged the use of the statement. Weighing the applicant’s defence rights, including the substantial sentence faced, against the absence of any indication that the defence’s exclusion from the pre-trial interview was required to protect E., the Court concluded that the constraints on the applicant’s defence rights were irreconcilable with fair-trial guarantees and found a violation of Article 6 §§ 1 and 3 (d).
Key Takeaways
- A conviction resting decisively on a child victim’s pre-trial statement, taken without any defence participation, requires the most searching scrutiny; on these facts, video playback at trial, indirect corroboration from the victim’s father and an expert credibility assessment did not compensate for the defence’s inability to question the witness.
- The Court emphasised that the authorities, aware the pre-trial interview would likely be the only opportunity to question E., should have secured at least indirect defence participation as domestic law allowed, absent any shown justification tied to the victim’s protection.
- The Government were estopped from raising a non-exhaustion objection not presented in their initial admissibility observations, with no explanation for the delay and no exceptional circumstances.
- The Court rejected the applicant’s claim for EUR 1,750 in costs and expenses as unsubstantiated for lack of documents showing payment or an obligation to pay; it made no damages award, the applicant having made no such claim, and dismissed the claim for just satisfaction.
Why It Matters
The judgment applies the Al-Khawaja/Schatschaschwili framework to child-victim testimony in sexual-abuse prosecutions, confirming that victim-protection measures and defence rights must be reconciled in practice. It signals that domestic procedures permitting recorded pre-trial interviews of vulnerable witnesses must still ensure a genuine, clearly communicated opportunity for the defence to put questions, at least indirectly, where that interview is likely to be the only examination.
For practitioners, the case also carries procedural lessons: governments must raise admissibility objections in their initial observations or risk estoppel, and applicants must substantiate costs claims with proof of payment or a binding obligation to pay.