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Indirect evidence can lead to a conviction

In a decision intended for publication, the Federal Court accepts the validity of a conviction based on indirect testimony (“hearsay witness”) (6B_1403/2021 of 9 June 2022)

The facts

A, a health care assistant, had palpated the breasts of the late B in the course of care provided at her home, without protective gloves, in an insistent and unnecessary manner, while he was supposed to apply or was applying moisturising cream to her.

The late B had complained about A’s behaviour to C, a health auxiliary who came to shower her three days after the above-mentioned events. C had then passed on this information to late B’s nurse, who had met with her patient five days after the events.

On this occasion, the victim confirmed that A had told her that she was a very beautiful woman, that he had made her take a shower and that when applying the moisturising cream, he had taken off his gloves when he should have kept them on and had insisted on palpating her breasts. According to the patient, this was to give her pleasure.

The husband of the late B, who was present at the meeting with the referring nurse, confirmed that he had found his wife totally disturbed when she returned home.

The late B died before her testimony could be taken by the investigating authority. The facts were then reported by the Directorate General of Health on 13 June 2019.

For these facts, A had been found guilty of sexual acts committed on a person incapable of discernment or resistance, a conviction confirmed by the higher cantonal court.

A appealed to the Federal Court, mainly requesting to be released from all offences, sentences and measures.

Reasoning of the Federal Court

After considering that the lower court had not violated A’s right to be heard by rejecting his requests for evidence, the Federal Court had to determine whether the cantonal court had violated Article 6 para. 3 let. d ECHR, Article 29 para. 2 of the Swiss Constitution and Article 32 para. 2 of the Swiss Constitution – which guarantee the right to a fair trial – insofar as A had been convicted on the basis of indirect testimony and without the late B, who had died prior to the opening of the investigation, having ever been heard in adversarial proceedings.

After recalling the case law on Article 6 para. 3(d) ECHR, the Federal Court recalled that the only direct witness for the prosecution, the late B, had died before her testimony could be taken by a criminal investigation authority in the context.

However, the late B had told the facts to her nurse during an interview. On that occasion, the nurse had taken notes, and the transcript in the file accurately reflected the victim’s words, including several expressions placed in inverted commas. Moreover, the late B had reported the events to her husband immediately after they had occurred.

The facts had therefore been reported to two separate witnesses – whose statements were consistent and credible – immediately after the events, and a written transcript of the victim’s complaints was on file. According to the Federal Court, the cantonal court had in fact examined the credibility of the victim and her capacity for discernment, whose reported speech was precise and coherent, and had found that there was no reason to doubt the veracity of the complaints.

Moreover, A’s lawyer had been able to question the two indirect witnesses to the events and had been able to give his own version of the facts and to cast doubt on the statements of the late B.

In view of these factors, the Federal Court held that the procedure followed by the cantonal authorities had met the requirements of Article 6 para. 3 (d) ECHR, Article 29 para. 2 of the Constitution and Article 32 para. 2 of the Constitution, in that it had offered sufficient compensation to restore the balance of a fair trial, despite the absence of an adversarial examination of the late B.

For the rest, the Federal Court considered that the cantonal court had not been arbitrary in establishing the facts of the case. Moreover, it had not violated Article 191 of the Criminal Code by considering that the late B had been incapable of resisting at the time of the events.

Consequently, the Federal Court upheld A’s conviction for sexual acts committed against a person incapable of discernment or resistance, despite the absence of statements made by the only direct prosecution witness during the investigation.

Marie Besse

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