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FOURTH
SECTION
CASE OF
B v. FINLAND
(Application
no. 17122/02)
JUDGMENT
STRASBOURG
24
April 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of B v. Finland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr M. Pellonpää,
Mr R. Maruste,
Mr K.
Traja,
Ms L. Mijović,
Mr J. Šikuta, judges,
and
Mr T.L. Early, Section Registrar,
Having
deliberated in private on 27 March 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 17122/02) against the Republic
of Finland lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Finnish national, (“the applicant”),
on 16 April 2002. The President of
the Chamber acceded to the applicant's request not to have her name
disclosed (Rule 47 § 3 of the Rules of Court).
- The
applicant, who had been granted legal aid, was represented by Mr T.
Skurnik, a lawyer practising in Helsinki. The Finnish Government
(“the Government”) were represented by their Agent, Mr A.
Kosonen of the Ministry for Foreign Affairs.
- The
applicant alleged that the rights of the
defence in respect of witnesses, i.e. the child complainants,
had not been respected.
- By
a decision of 10 January 2006, the Court declared the application
admissible. Judge Pellonpää, who at the time of the
decision sat in respect of Finland, continued to participate in the
examination of the case (Article 23 § 7 of the Convention).
- The
Government, but not the applicant, filed further written observations
(Rule 59 § 1). The Chamber decided, after consulting the
parties, that no hearing on the merits was required (Rule 59 § 3
in fine).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The pre-trial investigation
- The
applicant and another person were suspected of having sexually abused
the applicant's two daughters, K. born in October 1986 and J. born in
October 1990.
During
the pre-trial investigation, K. and J. were questioned on 16 February
1997 and on 19 January 1997 respectively.
Subsequently,
they were questioned again and the interviews were recorded on
videotape. K. was interviewed on 15 June and 6 December 1998
and J. on 22 June and 7 December 1998.
- On
3 December 1998 at the pre-trial stage, the applicant was shown the
videotapes. She contested the suspected sexual abuse. She was given
an opportunity to have questions put to the children, but she did not
avail herself of the opportunity. Her counsel was also present.
In
her closing statement of 4 February 1999 she maintained that she was
not guilty of any offence. She also considered the children's
statements contradictory and unclear.
B. The Lahti District Court
- The
applicant, among others, was charged before the District Court
(käräjäoikeus, tingsrätten) with having
sexually abused the two children on several occasions between 1992
and 1996. The defendants denied the charges.
- The
District Court heard the applicant, the co-accused and ten witnesses,
including a psychiatrist, two psychologists and several persons, who
had taken care of the children and offered them a foster home over
the years. The District Court also watched the above videotapes. The
pre-trial investigation minutes and several medical reports drawn up
by a psychiatrist and a psychologist were referred to in evidence.
The children did not appear before the court. Nor did the defence
make any request to that effect.
- In
its judgment of 13 October 2000 the District Court noted that the
oral evidence was of an indirect nature and that the case turned on
the assessment of the credibility of the children's statements. The
court convicted the applicant as charged and sentenced her to seven
years' imprisonment. She was detained.
C. The Kouvola Court of Appeal
- The
applicant, among others, appealed, denying the charges. She argued
that the conviction was based on contradictory and indirect evidence.
In her writ of appeal she did not, however, request that the children
be heard before the Court of Appeal (hovioikeus, hovrätten).
- On
26 April 2001 K. visited the applicant in prison. It appears that the
applicant asked K. whether she had ever abused her children. In front
of other people K. withdrew her previous accusations, stating that
there had never been any sexual abuse.
- Having
learnt of K.'s statement, the applicant's counsel made a request by
telephone to the Court of Appeal to the effect that K. be called as a
witness in the forthcoming oral hearing or that she be questioned in
an additional investigation conducted by the police during which the
interview could be videotaped.
- On
8-10 May 2001 the Court of Appeal held an oral hearing. The
applicant, the co-accused and the witnesses were reheard. The Court
of Appeal also heard four new witnesses, including L., a deacon, and
M.K., a social official, who had been present during K.'s
above-mentioned visit to the prison. The videotapes, the pre-trial
investigation records and the medical reports were referred to in
evidence. K.'s foster mother testified that the girl did not want to
appear before the court. Her treating psychologist stated that she
did not recommend that K. be heard in court. She also testified that
K. was very prone to external influence and that her ego structure
contained much repression and that “it would be too upsetting
for her to face the deeper reality”.
- The
applicant's counsel repeated the above request at the oral hearing on
10 May 2001 and also requested an opportunity to put questions to K.
- The
Court of Appeal noted that the applicant stated that she had asked K.
whether the children had been raped at their home whereas L. did not
remember that such a direct question had been put to the girl at all.
According to L., the applicant had asked whether “something
like that” had taken place. Given the context, L. had however
concluded that the question had related to the events leading up to
the applicant's detention. L. considered that the girl's reply had
appeared credible and that the question had not been leading in
nature. According to M.K., the applicant had cried and said that the
prison was gloomy. She had gone on saying to the girl that she had
not done the things that she was now imprisoned for. The girl had
then answered “no, you have not”. M.K. considered that
the applicant's question had been leading in nature, leaving the girl
with no other option than to answer the way she had.
The
Court of Appeal refused the applicant's requests. It reasoned:
“The applicant, L. and M.K. have given somewhat
different testimonies on the discussions in prison. The applicant has
stated that she had asked whether the children had been raped at
their home whereas L. has not remembered that such a direct question
had been put to the girl at all and M.K. has stated that K. had only
replied to a question that appeared from the context. However, the
Court of Appeal finds it established that K. replied in the negative
to the applicant's question whether K. had given truthful statements
about the sexual abuse.
It has been established that K. has not on her own
initiative expressed her wish to alter her earlier statements in the
case. It rather appears that K. has been trying to forget the sad
events in her early childhood. She has refused to clarify them
openly. Moreover, as K. has expressed her wish to re-approach her
mother, whom she has not met for a long time, it is evident that she
has been unable to give a considered response [to the applicant's
question], given the circumstances in which the visit took place. It
has thus not been established that the hearing of K. before the court
or by any other means could bring additional evidence significant to
the case.
Also the fact that it would be particularly stressful
for the now 14-year-old K., given the personal nature and
significance of the case, to be heard again speaks against hearing
her.”
- In
its judgment of 8 June 2001 the Court of Appeal considered that as a
hearing in court could be harmful to the children, now aged 10 and 14
respectively, it was possible to use in evidence their statements
during the pre-trial investigation.
- It
noted that the case turned on an assessment of the credibility of the
children's statements. In assessing their credibility particular
regard had to be had to unclear factors such as the time that had
passed since the acts and the children's young age. Moreover, they
had been exceptionally young and their family life had been chaotic.
The credibility of their statements was increased by the fact that
they had given similar accounts of the events. Further, they had
given account of empirical details, which they could not have taken
in by, for example, watching films or sexual acts between adults.
Reference was here made to the nasty taste of yellow snot secreted
from the penis and which they had washed away with toothpaste. A
further example was the comparison made by the children between the
sensation when touching with their tongue the gum in their mouth
following a tooth loss and the slimy female genital area. In these
circumstances, the court found that the children had been truthful
when giving their statements.
- As
to the discussion during the visit to the prison, the court repeated
the reasons in its decision of 10 May 2001. It also noted that M., a
psychologist, considered that K. was very prone to external
influence. The court concluded that the discussions in prison were
not relevant. The court upheld the lower court's judgment insofar as
the applicant's conviction and sentence were concerned.
D. The Supreme Court
- The
applicant requested leave to appeal, arguing, inter alia, that
K., following her retraction of the allegations, should have been
heard either in the Court of Appeal or in an additional
investigation. The applicant requested that K. be heard before the
Supreme Court (korkein oikeus, högsta domstolen), in
person in one way or another, and that the applicant be given an
opportunity to put questions to her.
- On
18 October 2001 the Supreme Court refused leave to appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The pre-trial investigation
- The
Decree on Criminal Investigations and Coercive Measures (asetus
esitutkinnasta ja pakkokeinoista, förordning om förundersökning
och tvångsmedel; Act no. 575/1988) provides that when
questioned during a pre-trial investigation the child must be treated
with due respect having regard to his or her age and level of
development. Where possible, the interview should be carried out by a
police officer acquainted with that task. If need be, a doctor or an
expert must be consulted before the interview (section 11).
- The
Criminal Investigations Act (esitutkintalaki,
förundersökningslagen; Act no. 449/1987) provides that
questioning and other investigation measures requested by a party
must be carried out, if that party shows that there is a possibility
that these measures could have an effect on the case, provided that
the expenses so incurred are not disproportionate to the nature of
the case (section 12). The competence to decide on investigation
measures requested by a party lies with the head of investigation
during the pre-trial investigation and with the public prosecutor
after the case has been transferred to him or her (section 15(3), Act
no. 692/1997). A pre-trial investigation has to be carried out in
such a manner that no one is placed under suspicion without due cause
and no one is unnecessarily subjected to harm or inconvenience. Nor
must the rights of those concerned be infringed more than is
necessary for the achievement of the purpose of the investigation
(section 8).
- The investigator may
permit a party and his counsel to be present during the questioning
of another party or witness, provided this does not hinder the
investigation of the offence (section 32(1), Act no. 692/1997). A
party and his or her counsel may, with the permission of the
investigator, put questions to the person being questioned in order
to clear up the case. The investigator may decide that the questions
are to be put through him or her. Also, the prosecutor may put
questions to the person being questioned. A party and his or her
counsel have the right to request the investigator to ask the person
being questioned about matters necessary for the clearing up of the
case at other times also (section 34, Act no. 692/1997).
- Before
the closing of the criminal investigation, the parties must be
afforded the opportunity to present to the criminal investigation
authority their statement on the material gathered during the
investigation, if this is conducive to hastening or facilitating the
hearing of the case in court. The statement is to be appended to the
investigation record (section 42).
B. The receipt of evidence in court
- The
Code of Judicial Procedure (oikeudenkäymiskaari,
rättegångsbalken) lays down the applicable rules on
receiving testimony.
- A
statement in a pre-trial investigation record or another document may
as a rule not be admitted as evidence in court. The court may
exceptionally admit such a statement as evidence, if the witness in
question cannot be questioned before the court (chapter 17, Article
11; Act no. 690/1997). A witness must give testimony orally
before the court and must not refer to a written testimony. Oral
evidence given during a pre-trial investigation may be read out when
the witness in question is heard by the court only if he or she
retracts in court an earlier statement or states that he or she is
unable or unwilling to testify before the court (chapter 17, Article
32; Act no. 571/1948).
- If
a person called as a witness is less than 15 years of age, is
mentally ill or mentally retarded, or his or her mental capacities
have otherwise been impaired, the court shall, taking into
consideration the circumstances, assess whether or not he or she may
be heard as a witness (Chapter 17, Article 21). Although the hearing
of evidence from children falls within the court's discretion, there
has been a long-standing practice not to hear evidence in court from
children under the age of ten.
- At
the time of the proceedings in question, there were no legal
provisions concerning the use as evidence of a video recording of a
statement given by a child during the pre-trial investigation. There
was however a practice to admit such recordings as evidence.
C. Subsequent amendments
- The
Code of Judicial Procedure was amended with effect from 1 October
2003 to the effect that the testimony of a person under 15 years of
age, or a mentally disturbed person, recorded on audio or videotape
during a pre-trial investigation may be used as evidence if the
accused has been provided with an opportunity to have questions put
to the person giving the testimony (chapter 17, Article 11(2); Act
no. 360/2003). According to the explanatory report to the relevant
Government Bill (no. 190/2002), this new provision places emphasis on
both the idea that giving testimony before the court may be
detrimental to inter alia a child and on the importance of
respecting the rights of the defence.
- Chapter
17, Article 21 (as amended by Act no. 360/2003) of the Code of
Judicial Procedure reads with effect from 1 October 2003 as follows:
“(1) A person who has not attained the age of
fifteen or whose mental capacities have been impaired, may be heard
as a witness or for the purpose of obtaining evidence if the court
finds it appropriate and:
(i) if the hearing in person is of significant relevance
for the establishment of the facts of the case; and
(ii) the hearing is not likely to cause such suffering
or other harm to the person to be heard as could be detrimental to
the person concerned or his or her development.
(2) Where necessary, the court shall designate a support
person for the person to be heard, pursuant to the provisions of
chapter 2 of the Criminal Procedure Code (Act no. 689/1997).
(3) The person to be heard shall be questioned by the
court, unless the court finds particular reason to entrust the
questioning to the parties in accordance with the provisions of
section 33. The parties shall be provided with an opportunity to put
questions to the person to be heard through the intermediary of the
court or, if the court finds it appropriate, directly to the person
concerned. Where necessary, the hearing may take place on premises
other than the court room.”
- In
2003, the Criminal Investigations Act was supplemented with a new
section 39a (Act no. 645/2003) that entered into force on
1 January 2004 and reads as follows:
“The questioning of a victim or a witness must be
recorded on videotape, or by using other comparable audio-visual
means of recording, if there is an intention to use the statement
given in the interview as evidence in court proceedings, and where it
is not possible to hear the victim or the witness in person, due to
his or her young age or mental disturbance, without causing likely
harm to him or her. The special requirements set by the level of
maturity of the questioned person for the methods used, for the
number of participating persons, and for other conditions, must be
taken into account in the questioning. The person in charge of the
criminal investigation may decide that authorities other than the
investigators may, under the supervision of the investigator, put the
questions to the person being interviewed. The suspect must be
provided with an opportunity to put questions to the questioned
person. On the request of the suspect, he or she may also put the
questions through a legal counsel or other representative. However,
the investigator may order that the questions be put through his or
her intermediary.”
THE LAW
ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained, under Article 6 §§ 1 and 3 (d) of the
Convention, that she had been denied a fair hearing in that she had
not been given an adequate opportunity to put questions to the
witnesses against her, i.e. the child complainants, before the
domestic courts. It was true that she had been afforded such an
opportunity during the pre-trial investigation, but she did not
realise that it would be the only opportunity. She also complained
about the refusal of her request that K. be heard before the Court of
Appeal, either at the oral hearing or elsewhere.
Article
6 reads, in so far as relevant:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair ...
hearing ... by [a] tribunal ...
...
3. Everyone charged with a criminal offence
has the following minimum rights:
...
(d) to examine or have examined witnesses
against him and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses against him;”
A. The parties' submissions
1. The applicant
- The
applicant maintained that the rights of the defence had not been
respected. It was significant that everyone who had been present
during the visit to the prison stated that K. had answered the
question about the alleged abuse in the negative. L., M.K. and the
applicant had all agreed on this point. The treating psychologist's
opinion that K. should not be heard only concerned giving evidence in
court whereas the applicant had pointed to the fact that there were
other ways of questioning her. A police officer had even stated that
he was ready to question K. anew, but the court refused to order an
additional investigation. The applicant considered that the Court of
Appeal's reasoning that K. had not altered her statement of her own
motion was irrelevant. What was decisive was that she had answered
that no abuse had taken place.
- The
applicant emphasised that since at the pre-trial stage she had not
been informed of the fact that there would not be any opportunity to
put questions to the children after the close of the investigation,
she had not been afforded a sufficient opportunity to put questions
to them. At the pre-trial stage, the applicant had found the
suspicions against her too absurd to require use of the possibility
to put questions. The police officer conducting the interview did not
inform her of the manner in which the questioning would be carried
out.
- The
applicant did not contest that the injured party in general felt
anguish when questioned about the events, be it in a pre-trial
investigation or before a court. Nonetheless, the applicant's rights
had required that at least K. be heard. In any event, given the fact
that K. had stated that no abuse had taken place, the Court of Appeal
should have ensured that she was heard. Lastly, the applicant pointed
to some discrepancies in the children's statements showing the
uncertain basis of the conviction.
2. The Government
- The
Government contested the allegation. The domestic authorities and
courts had sought to respect the rights of the defence in that the
children had been videotaped when they gave their statements during
the pre-trial investigation. Following the interviews, the videotapes
had been shown to the applicant with counsel and they had been asked
whether they wished to put questions to the children. They had
declined.
- The
Government emphasised that the applicant had not requested that the
children be heard before the District Court and that she had in fact
accepted that they should not be heard given their age. Repeated
questioning was upsetting for a child, in particular in situations
where the child was a victim of a serious sexual offence. The
children in the present case had been harmed to a much lesser extent
by the interviews at the pre-trial stage than they would have been
had they appeared in court. The videotapes had been shown during the
court proceedings, enabling the parties and the courts to establish
how the interviews had been conducted and how the children had
behaved when giving their statements. In addition, the applicant had
been able to make comments, which she had in fact done.
- The
Government considered that the courts had paid express attention to
the uncertainties concerning the credibility of the children's
statements and to the assessment of it. The District Court stated,
for instance, that it took into account the possibility that the
children's chaotic background might have had an influence on their
ability to distinguish fantasy from the truth. The District Court and
the Court of Appeal heard 10 and 14 witnesses respectively. The video
recordings were thus not the only evidence in the case. There was a
large amount of evidence supporting the children's credibility. As to
the visit to prison, the appellate court found that the testimonies
differed from each other, that K. had no possibility to give a
considered response to her mother in the prevailing circumstances,
that K. had tried to forget her early childhood and that hearing her
would be stressful for her.
B. The Court's assessment
- Given
that the guarantees in paragraph 3 of Article 6 are specific aspects
of the right to a fair trial set forth in paragraph 1, it is
appropriate to examine the complaint under the two provisions taken
together (see Asch v. Austria, judgment of 26 April
1991, Series A no. 203, p. 10, § 25).
- All
the evidence must normally be produced at a public hearing, in the
presence of the accused, with a view to adversarial argument.
However, the use in evidence of statements obtained at the stage of
the police inquiry and the judicial investigation is not in itself
inconsistent with paragraphs 1 and 3 (d) of Article 6, provided that
the rights of the defence have been respected. As a rule, these
rights require that the defendant be given an adequate and proper
opportunity to challenge and question a witness against him or her
either when the statements were made or at a later stage of the
proceedings (see Saïdi v. France, judgment of 20
September 1993, Series A no. 261-C, p. 56, § 43, and A.M. v.
Italy, no. 37019/97, § 25, ECHR 1999-IX). A conviction
should not be based either solely or to a decisive extent on
statements which the defence has not been able to challenge (see,
mutatis mutandis, Doorson v. the Netherlands, judgment
of 26 March 1996, Reports of Judgments and Decisions 1996 II,
p. 472, § 76). Article 6 does not grant the accused an unlimited
right to secure the appearance of witnesses in court. It is normally
for the national courts to decide whether it is necessary or
advisable to hear a witness (see, among other authorities,
Bricmont v. Belgium, judgment of 7 July 1989, Series
A no. 158, p. 31, § 89). The Court is only exercising its
supervisory role.
- The
child complainants in this case should for the purposes of Article 6
§ 3 (d) be regarded as “witnesses”, a term to be
given an autonomous interpretation (see Asch v. Austria, cited
above, p. 10, § 25), because their statements, as recorded on
videotape by the police, were played back in court and used in
evidence against the applicant.
- Criminal
proceedings concerning sexual offences are often conceived of as an
ordeal by the victim, in particular when the latter is unwillingly
confronted with the defendant. These features are even more prominent
in a case involving a minor. In the assessment of the question
whether or not in such proceedings an accused received a fair trial,
account must be taken of the right to respect for the private life of
the alleged victim. Therefore, the Court accepts that in criminal
proceedings concerning sexual abuse certain measures may be taken for
the purpose of protecting the victim, provided that such measures can
be reconciled with an adequate and effective exercise of the rights
of the defence (see Baegen v. the Netherlands, judgment of 27
October 1995, Series A no. 327-B, opinion of the Commission, p. 44, §
77). In securing the rights of the defence, the judicial authorities
may be required to take measures which counterbalance the handicaps
under which the defence labours (see Doorson v. the Netherlands,
cited above, p. 471, § 72, and P.S. v. Germany, no.
33900/96, § 23, 20 December 2001).
- In
the present case the children's statements as recorded on videotape
during the pre-trial investigation and played back in the District
Court and the Court of Appeal constituted virtually the sole evidence
on which the courts' findings of guilt were based. The witnesses
heard by the courts had made no observations on the alleged acts and
gave evidence only on the children's reliability. Similarly to the
case of S.N. v. Sweden (no. 34209/96, ECHR
2002 V) the applicant and counsel had been afforded an
opportunity to have questions put to the children during the
pre-trial investigation. However, they did not avail themselves of
that possibility.
- As
the defence had been afforded but turned down a possibility to have
questions put to the children in the pre-trial investigation, there
is nothing to indicate that the rights of the defence were not
respected before the applicant's being convicted and sentenced by the
District Court. There has, therefore, been no violation as to the
proceedings in the District Court. The same considerations apply to
the proceedings in the Court of Appeal as far as the use in evidence
of the children's pre-trial statements was concerned. As for the new
information emerging from the visit to prison, the Court notes the
following.
- The
question in this case is whether, given K.'s retraction following the
conviction by the District Court, the rights of the defence were
respected when the appellate court upheld the applicant's conviction
without having had evidence taken from K. in an additional
investigation as requested by the applicant.
- In
the appeal proceedings, the only fresh issue related to the
retraction by K. of her allegations during the visit to the prison.
At the hearing the Court of Appeal took oral evidence from both the
prosecution and the defence and watched the video recordings of the
children's statements. As K. never appeared before the courts,
neither the prosecution nor the defence had the opportunity to put
questions to her, but it was open to both parties to submit to the
court whatever arguments they wished to make with regard to the
video-recorded evidence and the information about the retraction by
K. of her allegations.
- Although
K.'s words during the visit to the prison could reasonably be
perceived as if she henceforth meant that she had lied about what had
happened, the issue to be determined by the Court of Appeal was what
weight should be attached to this new information in the light of the
video recordings produced at the pre-trial stage. The court did
indeed appraise itself of the importance of K.'s retraction. It found
that it could not in the circumstances attach any weight to it,
because she had not made it of her own motion but rather had been
unable to reply to the applicant in any other way than she had done.
- In
the light of all of the above considerations, the Court is not
convinced that the absence of an additional interview with K. meant
that the rights of the defence were not respected. Thus, it finds
that the Court of Appeal's decision to go ahead with the hearing and
not to have fresh evidence taken from K. in an additional
investigation fell within its normal discretion in deciding on the
relevance and admissibility of evidence and does not disclose any
failure by the Finnish authorities to afford the applicant a fair
hearing for the purposes of Article 6 §§ 1 and 3 (d)
of the Convention.
- Accordingly,
there has been no violation of Article 6 § 1 taken together
with Article 6 § 3 (d).
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been no violation of Article 6 §
1 of the Convention taken together with Article 6 § 3 (d) of the
Convention.
Done in English, and notified in writing on 24 April 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
