MAGNUSSON - Sweden  (Nº 53972/00)

Decision 16.12.2003  [Section IV]

The applicant is the step-grandmother of two boys who were 5 and 9 years old when they allege that they had been sexually abused by her. In the pre-trial investigation of the case, the police carried out video recorded interviews of the boys, during which they confirmed their incriminating statements against the applicant (one of the boys was interviewed on a second occasion following the applicant’s request). They also underwent a forensic examination which concluded that they seemed normal, except for some physical characteristics in one of the boys which could have been the result of sexual abuse, although this could not be established with certainty. The applicant claims to have requested a supplementary investigation to include statements from experts but has not provided any documentary evidence in support of this submission. The District Court, relying on the credibility of the boys’ statements, convicted her of having committed sexual abuse and sentenced her to three months’ imprisonment. The judgment was upheld by the Court of Appeal and the Supreme Court refused leave to appeal. The applicant subsequently obtained an opinion by a psychologist who concluded that the boys’ statements were unreliable. The applicant complains she was denied “equality of arms” given the manner in which evidence was obtained (police interviews had been poor, with leading questions, without the opportunity of her presence) and relied on.

Inadmissible under Article 6(1) (fair hearing) and 6(3)(d) – It could not be maintained that the applicant had been denied the opportunity to challenge the boys’ statements as shown by the fact that her request for a second interview of one of the boys had been granted and on that occasion she had waived her right to put questions to him. Her allegation that she had requested a supplementary investigation with the participation of experts had not been substantiated. In any event, the applicant had not raised her allegations on the shortcomings of the pre-trial investigation in the District Court, where she could have requested additional evidence or raised any other procedural objection. In such circumstances, the applicant’s opportunity to challenge the children’s evidence was considered sufficient, and it could not be concluded that the proceedings in their entirety, or the taking of evidence, had been unfair: manifestly ill-founded.