CASE OF A.S. v. FINLAND
Violation of Art. 6-1+6-3-d;Non-pecuniary damage - award
David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä;Riitta-Leena Paunio
6. On 20 January 2004 a mother contacted the police on account of a suspicion that her child A., a boy born in 1999, had been sexually abused by a family friend, the applicant. On the same date the police took a statement from the mother. 7. On 26 February 2004 A. was interviewed at the children's hospital at the request of the police. The interview was conducted by a psychologist. The investigating police officer, the head psychologist of the hospital, and the deputy head physician Dr S., specialised in child psychiatry, followed the interview behind a mirrored wall. The interview was recorded on video-tape. The applicant was not present when the interview was conducted and apparently he had not even been informed about the investigation at that point. 8. A psychological examination was performed on A. on two occasions, namely 1 and 15 March 2004, by the head psychologist. A physical examination was also performed. The mother was interviewed by a specially trained nurse on 1, 12 and 15 March 2004. 9. On 21 May 2004 Dr S. and the two psychologists gave a written statement of their findings. They concluded that A.'s account seemed reliable, that is, he was recounting events that had very likely taken place. Certain changes in A.'s behaviour were also mentioned which, according to those medical experts, reflected sexual abuse to which he had been subjected. According to Dr S. and the two psychiatrists, no such circumstances had emerged in the examinations, or the previous information produced in the case, which supported some alternative explanation to A.'s account and symptoms. No specific findings of A.'s physical examination were mentioned in the statement. 10. On 30 June 2004 Dr S. gave another statement noting, inter alia, that issues regarding the suspected abuse had disturbed A.'s psychological balance and caused him confusion, insecurity and anxiety. In her opinion, subjecting A. to more questions about the matter would be harmful to him and he should not be interviewed again. 11. On 1 July 2004 the police questioned the applicant as a suspect. He denied all allegations of sexual abuse. On 8 July 2004, after having taken another statement from A.'s mother, the police closed the pre-trial investigation. 12. On 12 October 2004 the public prosecutor preferred charges against the applicant with the District Court (käräjäoikeus, tingsrätt) accusing him of having sexually abused A. 13. After having been served with the summons, the applicant contacted a lawyer. On 4 February 2005 he submitted a communication to the District Court noting that, apparently, the prosecutor intended to present the video recording of A.'s interview as evidence before the court. The applicant agreed that, in the light of Dr S.'s last statement, A. should not be heard again. He pointed out, however, that he had not been afforded an opportunity to put questions to A. during the pre-trial investigation as required by section 39(a) of the Criminal Investigations Act (esitutkintalaki, förundersökningslagen, Act No. 449/1987 with later amendments). Nevertheless, instead of requesting the court to exclude A.'s account due to that procedural error, the applicant wished to submit the video recording as evidence on his behalf. In the applicant's view the recording contained certain absurdities and showed that A. was merely repeating sentences that he had been rehearsed to say. 14. On 10 February 2005 the District Court held its first session. Having heard the prosecutor's opening arguments, the applicant now claimed that the video recording could not be used in evidence, since his legal right to put questions to the witness had not been respected. The prosecutor was of the opinion that the recording should be viewed in order to allow the court to assess A.'s level of maturity and the value of his account as evidence. The complainant, that is A. represented by his mother, joined the prosecutor's pleadings. After a discussion concerning the recording, the applicant consented to its being viewed and the court proceeded with the hearing. 15. The court was presented with the two written statements given by the psychologists and Dr S. During its first session, the court also received testimony from A.'s mother, the applicant and the applicant's former wife. A.'s mother testified on the events leading to her suspicions of sexual abuse and what A. had told her about those events. The applicant's former wife testified to his character. The court held another session on 25 February 2005, during which the video recording of A.'s interview was played back. It appears that Dr S. gave testimony in that connection as a medical expert making also an assessment of the credibility of A.'s account. 16. On 11 March 2005 the District Court delivered its judgment. As to the proceedings, it noted that the law did not allow the use of video-taped testimony of a person under 15 years of age if the accused had not been provided with an opportunity to have questions put to that person. It observed that the applicant had not been afforded such an opportunity. It further observed Dr S.'s statement concerning the negative consequences for A. if interviewed again. The court acknowledged that there had been a procedural error which could not be rectified. However, it noted that the video recording of A.'s interview had been shown to the court with the applicant's consent and Dr S. had given testimony as to the credibility of his account. 17. As to the merits, the court found that neither A.'s account nor the other evidence presented to it supported the charge and acquitted the applicant. 18. The prosecutor and the complainant appealed against the judgment to the Court of Appeal (hovioikeus, hovrätt). In his response to their pleadings, the applicant again pointed out the flaw in the proceedings in respect of his right to examine witnesses against him. 19. On 13 June 2006 the Court of Appeal held an oral hearing. It was presented with the same evidence as the District Court, along with some fresh written evidence. 20. The prosecutor named the video recording of A.'s interview as evidence, with no opposition from the complainant party. The applicant, on the other hand, maintained his argument that he had been deprived of his legal right to put questions to A. and that the court should assess whether the video recording could, in those circumstances, be admitted. The applicant further argued that his consent in the District Court was not relevant in that respect and that he had not himself submitted the recording as evidence. 21. The Court of Appeal observed that, in the District Court's hearing of 10 February 2005, the applicant had named the video recording as evidence in its totality. The applicant then argued that he had been left with no other choice, as the District Court had allowed Dr S. to testify to A.'s account, which was merely second-hand evidence. He further stated that if the Court of Appeal were, in turn, also to allow the use of Dr S.'s testimony and her written statement concerning A.s' interview, he would have to name the video recording as evidence again. In response to the court's inquiry as to what questions the applicant had wished to ask A., he mentioned a certain detail about A.'s account of events for which he wanted to have a clarification. He had also wished to ask A. if his mother had told him about the interview beforehand and whether she had asked him to say anything in particular. 22. The court made reference to the relevant legislation and its travaux préparatoiresIt noted, in particular, that due to the circumstances mentioned in Dr S.'s statement of 30 June 2004, it had not been possible to hear A. again. The court found that A.'s videotaped account was to be considered as a statement given in a pre-trial investigation, within the meaning of Chapter 17, Article 11, of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken). Since the applicant had not been given the opportunity to put questions to A., in a manner described in more detail in the Criminal Investigations Act, the video recording of A.'s interview could not, in principle, be played back before the court and used in evidence. The court found, however, that testimony about A.'s account of the alleged events could be received from his mother. The statement concerning A.'s interview, and testimony by Dr S. on that matter, were also permissible. The court then noted the applicant's submissions that, under those circumstances, he would invoke the video recording as evidence. Having regard to the fact that he had already done so in the District Court, it found that the recording could also be treated as evidence in the Court of Appeal. Consequently, the video recording was played back in the appellate court's oral hearing. 23. On 22 August 2006 the Court of Appeal delivered its judgment. It found that the accounts given by A., his mother and Dr S., as well as the written statement concerning A.'s psychological examination, showed that the applicant had committed one of the sexual acts specified in the indictment. It convicted him of sexual abuse of a child and sentenced him to one year's suspended term of imprisonment. 24. On 11 May 2007 the Supreme Court (korkein oikeus, högsta domstolen) refused the applicant leave to appeal. A. The pre-trial investigation 25. 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, a 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). 26. The Criminal Investigations Act provides that the investigator may permit a party and his or her counsel to be present during the questioning of another party or witness, provided that 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. 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 as well (section 34, Act No. 692/1997). 27. The Criminal Investigations Act also provides that the questioning of a victim or a witness (from now on referred to as “the witness”) must be recorded on video-tape, or by using other comparable means of audio-visual 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 witness in person, due to his or her young age or mental disturbance, without causing him or her harm. The special requirements set by the level of that person's development for the methods used, for the number of participating persons and for other conditions, must be taken into account. The person in charge of the investigation may allow also other authorities, under supervision of the investigator, to put questions to the witness. The suspect must be provided with an opportunity to put questions to the witness. The suspect may also put questions through legal counsel or another representative. However, the investigator may order that questions be put through his or her intermediary (section 39(a), Act No. 645/2003). B. The receipt of evidence in court 28. The applicable rules on receiving testimony are laid down in the Code of Judicial Procedure. 29. A statement in a pre-trial investigation report or another document may, as a rule, not be admitted as evidence in court. The court may admit such a statement as evidence, if the person who had given the statement cannot be heard before the court or outside its oral hearing (Chapter 17, Articles 11(1)(2) and 11(3), Act No. 690/1997). 30. The testimony of a person under 15 years of age, or a mentally disturbed person, recorded on audio or video-tape during the 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), the above-mentioned 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. The Bill states that a recorded account could be used in evidence even where the defendant has not availed him or herself of the opportunity to put questions to the witness in question, provided that he or she had been afforded such an opportunity. The Bill does not recognise an exception to that rule. 31. As to the hearing of a child under the age of 15 at the trial, Chapter 17, Article 21 (Act No. 360/2003) provides that he or she may be heard as a witness, or for the purpose of obtaining evidence, if the court finds it appropriate, and if the hearing in person is of significant relevance for the establishment of the facts of the case, and the hearing is not likely to cause such suffering or other harm as could be detrimental to the person concerned (hereafter “the witness”) or to his or her development. Where necessary, the court shall designate a support person for the witness. The witness shall be questioned by the court, unless it finds particular reason to entrust the questioning to the parties. The parties shall be provided with an opportunity to put questions to the witness through the intermediary of the court or, if the court finds it appropriate, directly to the witness. Where necessary, the hearing may take place on premises other than the court room. C. The Supreme Court's case-law 32. The Supreme Court has in its precedent no. KKO 2006:107 (voting) examined the question of admissibility as evidence of a video recording in a case concerning alleged sexual abuse of a child. In that case the plaintiff child's interview had been recorded on video-tape during the pre-trial investigation. The defendant had not, however, been afforded an opportunity to put questions to the child. In its procedural decision the Supreme Court stated: “... The Supreme Court notes that during the pre-trial investigation A. had not been provided with an opportunity to put questions to B., who is a minor. Thus, and having regard to Chapter 17, Article 11(2) of the Code of Judicial Procedure, B.'s account, recorded on video-tape, should not have been used in evidence by the lower courts. Those courts should have brought that issue to the defendant's attention on their own initiative. There would not, however, have been any impediment as to the use of the video recording in evidence had the defendant been given explicit consent to it or if the handicap caused by the lack of opportunity to put questions to the child could have been rectified before the court by, for example, hearing B. in person. When considering the admissibility of the video recording as evidence in the Supreme Court, the court firstly notes that absolute prohibitions [in that respect] are exceptional in the Finnish legal system. The main rule is the principle of free assessment of evidence. That largely leaves it up to the parties to decide what circumstances and evidence they wish to invoke in their case. It is left to the court's discretion to decide which evidentiary value it attributes to each piece of evidence. The restriction on the admissibility of recorded statements laid down in Chapter 17, Article 11(1)(2) of the Code of Judicial Procedure is ultimately aimed to ensure a fair trial for the suspect. Therefore, in the interpretation of the extent of that restriction, attention must be paid to the proceedings as a whole. Chapter 17, Article 11(3) of the [Code] in turn lays down the principle that, if a witness cannot be heard before the court in person, the court may admit as evidence his or her recorded statement even if it is, according to the main rule, otherwise inadmissible as evidence. ...” The Supreme Court went on to note that the child had not been heard before the lower courts, nor could that flaw be rectified by hearing [him] before the Supreme Court, given [his] young age and level of development and the time elapsed since the alleged events. The Supreme Court observed that the defendant had been represented by counsel already at the pre-trial stage. He could thus have requested an additional interview with the child prior to the trial. As he had not done so, nor made any argument concerning the lack of opportunity to put questions to the child until the Supreme Court drew [his] attention to that issue, it seemed likely that the defendant had not been disadvantaged by that flaw in the proceedings. The court also found that the defendant had apparently considered that submitting the video recording as evidence, even in the Supreme Court, benefited his defence. The Supreme Court concluded that the use of the video recording, already played back before the lower courts, did not compromise the defendant's right to a fair trial. Moreover, he was able to express his opinion on the evidentiary value of that recording in the Supreme Court's oral hearing. The Supreme Court thus admitted the recording as evidence. Having held its oral hearing, the court upheld the defendant's conviction. 33. In another Supreme Court precedent concerning alleged sexual abuse of a child, no. KKO 2008:68, the question at stake was hearsay evidence. The court noted, at the outset, that such evidence was not prohibited by the domestic law and could be taken into account according to the principle of free assessment of evidence. In this case, the complainant child had initially been examined by a psychologist, who had interviewed her on two occasions. These interviews had given rise to a suspicion of sexual abuse and led to a criminal complaint. At the request of the police, the child had been interviewed again, now as a part of the pre-trial investigation. Unlike the previous interviews, the third interview had been recorded on video-tape, but the suspect was not given an opportunity to put questions to the child. In that third interview, the child had retracted her previous statements. Charges were subsequently brought and the defendant was convicted of sexual abuse. The conviction was upheld on appeal. According to the appellate court the main evidence against the defendant had not been the video-taped interview but the child's account as given to the psychologist. That court found it very unlikely that hearing the child again would shed more light on the matter, as the child had retracted her initial account. The Supreme Court noted that the courts had not been able to assess the child's own original account of events but they had only to rely on the psychologist's testimony and written statement in that respect. This prevented a reliable assessment being made of the child's third, video-taped interview. Furthermore, as the defendant had not been given an opportunity to put questions to the child, the conviction could not be based to a decisive degree on the hearing of the psychologist. In the absence of other substantial evidence in support of the charge, the Supreme Court acquitted the defendant.