A.G. v. SWEDEN
Inadmissible
Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
The applicant, A.G., is a German national who was born in 1990 and lives in Allerum. He was represented before the Court by Dr. jur. A. Firsching, a lawyer practising in Stockholm. The Swedish Government (“the Government”) were represented by their Agent, Mr B. Sjöberg, of the Ministry for Foreign Affairs. The German Government did not make use of their right to intervene under Article 36 of the Convention. The facts of the case, as submitted by the parties, may be summarised as follows. On 5 November 2007 the father of A., a seven year-old girl, reported to the police that his daughter had told her mother the day before that she had been sexually abused by the applicant. The incident was supposed to have taken place some time during the 2007 school summer break. On 6 November 2007, between 2.08 p.m. and 2.44 p.m., A. was interviewed by a police inspector. The interview was recorded on videotape. At that time, the applicant had not been informed of the suspicions against him and no defence counsel had been appointed for him. On 7 November 2007 the applicant was questioned by the police, in the presence of his newly-appointed defence counsel. Before the questioning he was notified, in accordance with Chapter 23, section 18, of the Code of Judicial Procedure (Rättegångsbalken), that he was suspected of rape of a child (våldtäkt mot barn). On 10 December 2007, between 10.06 a.m. and 10.35 a.m, A. was interviewed a second time by the police inspector who had conducted the first interview. This interview was also videotaped. The applicant’s counsel was shown the recording of the first interview before the start of the second interview. He followed the second interview on a monitor, from an adjoining room and used the opportunity to put supplementary questions to A. through the interviewing police inspector. The applicant himself was not present, however. On 17 December 2007 the applicant was questioned by the police a second time, in the presence of his counsel. The police also interviewed A.’s father and mother, A.’s father’s partner, the cohabitee of the grandmother of the partner, A.’s grandmother and the eight-year-old friend of A. The last interview was videotaped. The preliminary investigation was concluded on 18 February 2008. The applicant and his counsel were notified of the investigation report on 20 February 2008, at which time they were shown the videotaped interviews with A. and with her friend. The applicant’s counsel requested that a supplementary interview be held with the friend’s father. This interview was held on 29 February 2008. No further requests or comments were made concerning the report of the preliminary investigation. The applicant was subsequently indicted for rape of a child. The District Court (tingsrätten) of Helsingborg held a hearing in the case on 27 March 2008. Heard by the court, the applicant denied the charges. The videotaped police interviews with A. were shown during the hearing. The court also heard evidence from A.’s mother and A.’s father’s partner, on the proposal of the prosecution, as well as the father of A.’s friend, at the request of the defence. No request was made for A. to be heard in person. In a judgment of 3 April 2008 the District Court, by a majority of three lay assessors against the presiding judge, convicted the applicant of the lesser offence of sexual assault of a child (sexuellt övergrepp mot barn) and sentenced him to 70 hours of community service. It also ordered him to pay 50,000 Swedish kronor in damages to A. The court gave the following reasons: “[The applicant] has completely denied the charges brought against him by the prosecutor. The evidence consists mainly of the information given by the plaintiff at two videotaped interviews which have been played back at the main hearing. Defence counsel had the opportunity to put supplementary questions to A. through the interviewer during the second interview. Nevertheless, interviews of this kind should always be evaluated with caution (...). The court cannot base its evaluation of the credibility of the plaintiff and the reliability of the information submitted on impressions of the kind conveyed by an examination in court. [The applicant] has been prevented from putting questions to the plaintiff through his counsel before the court and the court has not been able to put questions to the plaintiff either. The interviews in issue are of good quality. There have been good opportunities to observe the plaintiff’s facial expressions and body language during the interview. Without any leading questions having been put to her, the plaintiff has given an account which in itself is consistent and which does not contain direct contradictions or statements that evidently cannot be true. The suspicion that A. has been subjected to an assault arose when, in November 2007, she told her mother about the incident. Nothing that has emerged in the case indicates that A. has been put under pressure by, for instance, her parents before she, at the police interview, gave an account of what she had been subjected to. The information that A., according to witness statements, had revealed before the police interview is concordant with the information she gave at the police interview. Moreover, there are no noticeable divergences between the accounts in the police interviews which took place with more than a month’s interval. During the interviews she has given a detailed account of what [the applicant] did and stated that she told [him] that it hurt. She has shown in which position she was lying and how [the applicant] was placed in relation to her when the assault occurred. The fact that A. revealed what had happened only in November 2007, whereas the incident is supposed to have occurred during the summer break of 2007, could be held against the credibility of her statements. Furthermore, it has emerged that A., immediately prior to telling about the assault in issue, made intercourse-style movements against the arm of her mother’s partner and explained that she “made babies” with him. There is no indication that any such movements occurred in connection with the incident now being examined. It has also emerged that A. a previous year was subjected to a sexual act, during which the perpetrator stated that he was showing “how one makes babies”. The account given by [the applicant] is not in itself contradictory. However, his statement that the plaintiff made advances to him appears, in the view of the District Court, to be less probable given her age and level of development. It also appears less probable that he would have occupied himself for such a long period of time with a younger girl who, according to his own opinion, was rather demanding, although it has emerged that he is helpful and sometimes baby-sits for others. The District Court places reliance in A.’s statements and finds beyond reasonable doubt that [the applicant] committed the sexual acts indicated by the prosecutor in the indictment.” The District Court then considered that the sexual acts in question – which consisted of touching A.’s genitals and trying to insert a finger into her vagina – were not comparable to intercourse. Consequently, the applicant could not be held liable for rape of a child. In her dissenting opinion, the presiding judge stated that, while the applicant’s account of events, for the reasons indicated in the judgment, appeared somewhat less plausible than that given by A., it did not contain any direct contradictions or demonstrable errors. She was of the opinion that a verdict of guilty required supporting evidence of some strength. However, the evidence given by various witnesses could not be regarded as independent of the police interviews and it did not in any important aspect strengthen the prosecutor’s claims. Consequently, in the absence of further information, the judge did not find that the applicant’s guilt had been proven beyond reasonable doubt. The applicant appealed to the Court of Appeal (hovrätten) of Skåne and Blekinge. Asserting that, when it is one person’s word against another’s, certain supporting evidence is required for a conviction, he maintained that the evidence invoked by the prosecutor did not lend such support to the statements made by A. In May 2008 the appellate court held a hearing, during which the videotaped police interviews with A. were played back. Audiotapes of the testimony given by witnesses before the District Court were also played back. Moreover, it took evidence from a new witness proposed by the defence, a neighbour and former partner of A.’s friend’s father. Again, the applicant did not request that A. give evidence during the hearing. In a judgment of 9 June 2008 the Court of Appeal upheld the applicant’s conviction and sentence. It restated some precedents of the Supreme Court (Högsta domstolen), according to which the outcome in cases concerning sexual offences mainly hinged on the evidence given by the plaintiff. The absence of observations by witnesses or technical evidence did not prevent the evidence from being considered sufficient for a conviction. However, to an increasing extent, a verdict of guilty required that the plaintiff’ “When it comes to the videotaped interviews that have been held with A., as indicated by the District Court, such interviews must be evaluated with caution, although there is no reason to direct any particular criticism against the interviews that have been held in the instant case. As the District Court has set out, there are no noticeable divergences between the statements given by A. on different occasions. Her account of what [the applicant] did and how she felt has been relatively exhaustive. It contains certain details which strengthen the impression that she is describing something that she has experienced. Such a detail is her description in the videotaped interviews that they are playing, that [the applicant] then fetches the mobile phone and that he, after having introduced the idea of nude photographing, takes photos of A. who, by then, has pulled down her knickers and shorts but is still dressed on the upper part of the body. Another detail is her description of the condom which the applicant is supposed to have put on one of his fingers. She makes a drawing of it and describes it as being sticky, transparent and soft. It is true that her mother has testified that it is not ruled out that, on some occasion, she might have told A. what a condom is, but there is no indication that A. earlier had a particular familiarity with the subject. The information given by A. at the interviews is supported by her mother’s statement. Her account has been very nuanced, and she has given her statement with rather unusual openness, thoughtfulness and moderation. She has reported that, in connection with a story-time, A. made movements against her mother’s partner’s arm and said that she “made babies” and that, when asked from whom she got that idea, she answered [the applicant]. Asked when they had talked about that, A. replied that it had happened when he had asked if she had seen nude photos of her vagina. When she had answered in the negative, he had, according to A., suggested that they take some photos, which she first refused but later agreed to. According to the mother, A. seemed to be ashamed that she had agreed to this. When asked by the mother if anything else had happened, A. had told the rest. A.’s account is also to some extent supported by the testimony given by A.’s father’s partner. A. has given information about the assault also to her, in particular on the introductory part. Are there then any circumstances which may undermine A.’s credibility? A. did not tell her mother about the incident until a number of months later. It is obvious, however, that her interpretation of the incident is that of a child, into which she has not read everything that a grown-up would. Accordingly, there is nothing striking about the fact that she told about the incident only on an occasion which can be said to have had a certain connection to the incident. She is supposed to have made intercourse-style movements against a relative on one occasion in addition to the above-mentioned. Moreover, on an occasion further back in time, A. told her parents that she, together with a friend and her elder brother, experienced something with certain rather innocent sexual connotations. However, neither this nor the other information that has emerged indicates that A. has any sexual interest or knowledge in the matter which goes beyond the ordinary. Furthermore, it has not been shown that A. has any motive to give incorrect information about the applicant. Against this background, the Court of Appeal finds, in agreement with the District Court, that the examination [of the case] should be based on the statements given by A. Through her statements it has been proven that [the applicant] made a caressing movement on the outside of A.’s genitals. However, her statements differ to some extent on the question of whether he twice tried to insert a finger or actually did insert it. Consequently, it has been proven only that he tried to do it.” The applicant appealed to the Supreme Court. He claimed that he had been convicted solely on the basis of the statements given by A., which were not supported by any other independent evidence. On 9 July 2008 the Supreme Court refused the applicant leave to appeal. Domestic provisions of relevance in the present case are found in the 1942 Code of Judicial Procedure (Rättegångsbalken; hereafter “the Code”) and in the Ordinance on Preliminary Investigations (Förundersöknings-kungörelsen, 1947:948 – “the Ordinance”). There is also some national case-law of interest. A preliminary investigation takes place whenever there is reason to believe that a crime has been committed. Chapter 23, section 10, of the Code includes provisions pertaining to the categories of persons allowed to attend an interview during a preliminary investigation. The suspect and his defence counsel are always entitled to attend an interview which takes place following a request made by the suspect himself. This right, however, does not manifest itself until a person has been informed of the suspicions against him in accordance with Chapter 23, section 18, of the Code. As far as other interviews are concerned, counsel for the defence may attend if his attendance will not harm the investigation. It is for the person who heads the preliminary investigation – a police officer or a public prosecutor – to decide who may attend a specific interview during the preliminary investigation. In cases where the suspect or his defence counsel are present during an interview, questions may only be asked in the order determined by the person in charge of the preliminary investigation (Chapter 23, section 11, of the Code). When a preliminary investigation has reached the point at which a person can be reasonably suspected of having committed a crime, the person in question must be notified of the suspicions against him, pursuant to Chapter 23, section 18, of the Code. Under the second paragraph of that provision, an interview or other form of investigation may be undertaken at the request of the suspect or his defence counsel if the measure is deemed to be of importance to the preliminary investigation as such. If a request for such an investigative measure is not granted, the reasons for the decision must be given. If the suspect makes a complaint, the issue is settled by the court (Chapter 23, section 19, of the Code). Interviews with children conducted in the course of a preliminary investigation are subject to special regulations. Thus, according to Chapter 23, section 10, of the Code, a child’s custodian should be present whenever a child under the age of 15 is questioned if this can be done without any harmful effects on the investigation. Further and more detailed provisions concerning the questioning of children are found in the Ordinance, section 17 of which provides that interviews with, inter alia, an injured party under the age of 18 must be conducted in such a manner that there is no danger that the interviewed person might be harmed. It is also stipulated in that section that particular care is to be exercised when the questioning concerns sexual matters. Furthermore, particular care has to be taken in order to ensure that the interview does not create a stir and that it does not become more intimate than the circumstances require. Questioning is, moreover, according to section 17 of the Ordinance, not allowed to take place on more occasions than is necessary with regard to the nature of the investigation and the best interest of the child. Section 18 of the Ordinance provides that interviews with children must be conducted by persons who are particularly apt to perform the task. In addition, section 19 provides that a person with special expertise in the field of child psychology or interview psychology may assist at the questioning or comment on the value of the child’s testimony. Whenever the evidence of a witness below the age of 15 is used in a criminal case, the court must determine, taking account of all relevant circumstances, whether the child should testify (Chapter 36, section 4, of the Code). There is no corresponding provision applicable to children who are in the position of being the injured party. In practice, however, such evidence is normally presented to the court in the form of a video-recording of the police interview, which is played back during the court’s main hearing. In allowing this to take place, the court applies Chapter 35, section 14, of the Code, by which a statement made to the police or to the prosecutor or otherwise out of court may be used in evidence in a trial only if this is specifically prescribed, if the person who has submitted the statement cannot be heard before the court or if there are particular reasons for the statement to be relied on, regard being had to the costs or inconvenience that a hearing before the court may entail on the one hand and the advantages of a hearing before the court, the importance of the statement and all other relevant circumstances on the other hand. On a few occasions the Supreme Court has examined the question of evaluation of evidence in cases where the prosecutor’s indictment has been based to a large extent on videotaped police interviews with the injured party. In such situations, the Supreme Court has stated that the fact that the courts have not had the opportunity to assess the credibility and reliability of a witness or an injured party, and that the accused has not been able to question that person, ought to entail that the statements are examined and evaluated with particular caution. In the published cases NJA 1993 p. 68 and NJA 1993 p. 616 the Supreme Court came to the conclusion that the videotaped interviews, combined with other supporting evidence, were sufficient for a conviction. In the case NJA 1992 p. 532, the injured party had not attended the main hearing but the Court of Appeal had considered that the information submitted by the injured party to the police had to be given credit and therefore convicted the defendant of robbery. The Supreme Court, on the other hand, emphasised that Article 6 of the Convention and its application and interpretation was of major importance in respect of the application of Chapter 35, section 14, of the Code. Thus, in the light of the Court’s case-law, the Supreme Court found that that provision of the Code should be applied more restrictively than was called for by its wording and what appeared to be the original intentions behind the provision. According to the Supreme Court, the lower courts had applied the provision in such a way that the defendant had not been afforded a fair trial in accordance with the Convention and therefore referred the case back to the Court of Appeal for re-examination. The Supreme Court has in a number of cases examined the question concerning the assessment of evidence in cases regarding sexual offences mainly hingeing on the evidence given by the plaintiff. In such situations, the Supreme Court has stated that in order for the courts to find the guilt of the accused beyond reasonable doubt, it is not sufficient that the statements of the injured party are found to be more credible than the applicant’s story. The Supreme Court has, however, stressed that even if direct witnesses and technical evidence are generally missing in such cases, this does not prevent a conviction if the injured party’s statements are found throughout to be credible and compatible with other circumstances, for example testimonies regarding the injured party’s behaviour after the incident (see, for example, NJA 2005 p. 712 and NJA 2009 p. 447).