MAGNUSSON v. SWEDEN
Inadmissible
Nicolas Bratza
The applicant, Gunilla Magnusson, is a Swedish national, who was born in 1950. She was represented before the Court by Mr J. Thörnhammar, a lawyer practising in Stockholm. The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant is the step-grandmother of two boys, T and L (born respectively in August 1989 and June 1992) and is married to their paternal grandfather. Since the boys’ parents separated in 1995, they have been living with their mother C. Until May 1996 she and the boys only had sporadic contacts with the applicant and their grandfather. Thereafter the boys, mostly L., visited them from time to time during weekends, normally one at the time. During the weekend of 27 February to 1 March 1998 T. visited them by himself. The same night, he, together with his brother, told his mother and her co-habitant about sexual touching committed by the applicant. On 4 March 1998 C reported the matter to the police. The next day the police carried out interviews of the boys, which were video recorded. On 26 March 1998, the boys underwent forensic examinations at the Ward for Forensic Medicine in Stockholm. The relevant reports are dated 26 March 1997 but, on an enquiry by the registry, the applicant’s lawyer stated that the correct year was 1998. As regards T the report concluded in the main that the boy seemed normal and that the observations made neither confirmed nor contradicted the information available. Similar observations were made in the report concerning L, except for certain particular observations made regarding his posterior parts and the somewhat reduced capacity of muscular contraction of his anus. In this respect it was stated that the precise cause could not be established with absolute certainty; but it could not be excluded that repeated intrusion of an object was a factor, though, according to scientific data, this phenomenon occurred in a little less than half of the children who had not been subjected to sexual abuse. The report concluded that the observations made neither contradicted nor with absolute certainty confirmed the information available. On 23 April 1998 the applicant was interrogated. On 14 May 1998 the applicant and her defence counsel watched the video recordings at the police station and requested that T be interviewed once more. They did not request that any concrete questions be put to him but asked that he be questioned about his relationship with his brother, mother and father and, also, his attitude to physical contact generally. On 3 June 1998 T was again interviewed, with a video recording. The interviews of the boys were carried out by a police officer, without the presence of the applicant or her counsel or a psychologist. According to the applicant’s lawyer, on 14 May 1998 the police acknowledged that the questioning had not been carried out by a specially trained police officer and that several leading questions had been put. Therefore, according to his letter of 14 August 2003 to the registry, on 14 May 1998 he requested the police to carry out a new investigation, with the participation of an expert in child psychology. The lawyer has not provided any documentary evidence in support of the aforementioned submissions. A memorandum by a police officer dated 14 May 1998, supplied to the Court by the applicant, stated: “On the above-mentioned date the two video interviews of [T] and [L] have been shown to [the applicant] and her defence counsel, Mr Jan Thörnhammar. After having seen both video interviews the counsel ... and [the applicant] wished that one further interview should be held with [T]. They did not indicate any concrete questions that they wished be put to [T]. On the other hand, they wished that [T] should be questioned about his relations with his brother [L] and with his mother [C] and with his father [R], as well as about any attitude he might have with regard to physical contact in general. Another matter of concern to the defence was that [T] had stated something during the interview to the effect that he had recounted what had happened to him because he was anxious that someone at school should hear him talk about the incident for himself and ... that someone could hear him and believe that he had done something.” The applicant’s counsel further submitted a summons of 10 November 1998 to a meeting at the local police station on 30 November 1998, at which she was to be notified of the conclusions of the investigation (Chapter 23, Article 18, of the Code on Judicial Procedure). The applicant’s counsel stated to the Court (in letter of 14 August 2003 mentioned above) that at that meeting “the defence demanded that the prosecutor should complete the investigation with statements from experts.” On 8 March 1999 the relevant local District Court - after hearing the applicant, her husband and her employer, the boys’ mother and her co-habitant, but not the boys themselves (who were represented by a lawyer), and L’s primary school teacher, - convicted the applicant of having committed sexual abuse of T on one occasion and of L on at least one occasion, sentenced her to 3 months’ imprisonment and ordered her to pay certain sums in compensation to the boys. The video recorded police interviews of the boys, which constituted the main evidence against the applicant, were shown during the hearing and complete transcripts thereof were included in the written evidence. As it appears from the District Court’s judgment, a starting point for its examination was its observation that the prosecution case was essentially based on the information provided by children, submitted in the form of video recordings or recounted before the court by other witnesses. There was no evidence that directly support the indictment and no observable physical consequences could be established. Thus, what was decisive for the question of guilt was whether one could rely on the children’s accounts in the light of what had otherwise emerged in the case. The District Court then went on to assess in detail the contents of the video recorded interviews, the credibility of the boys’ statements and their evidentiary value, against the background of other evidence in the case. On 18 June 1999 the competent Court of Appeal upheld the District Court’s judgment, after taking oral evidence from the same persons and viewing the video recordings and after having rejected (by a separate decision of 27 May 1999, not appealed against) a request by the applicant for an expert in child psychology to comment on the police interviews of the boys. On 16 September 1999 the Supreme Court refused leave to appeal. Subsequently, on 30 November 1999, the applicant obtained an opinion by a Psychologist, Dr Egil Ruuth, whom her lawyer had requested to make a witness psychological assessment of the evidence gathered in the pre-trial investigation in the case. On the basis of the written case material, the video tapes and the District Court’s and the Court of Appeal’s judgments, the expert concluded: “In the light of what has been stated above concerning the circumstances in which [T]’s and [L]’s statements to the effect that they had been subjected to sexual abuse by [the applicant] had originated, these are deemed to be unreliable, i.e. not based on self-experienced events.” Domestic provisions of relevance in the present case are found in the Code of Judicial Procedure (hereinafter “the Code”) and in the Ordinance on Preliminary Investigations (Förundersökningskungörelsen, 1947:948; hereinafter “the Ordinance”). A preliminary investigation takes place whenever there is reason to believe that a crime has been committed. Chapter 23, Article 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 arise until a person has been informed of the suspicions against him in accordance with Chapter 23, Article 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 is present during an interview, questions may only be asked in the order determined by the person in charge of the preliminary investigation (Chapter 23, Article 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, Article 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, Article 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, Article 10, of the Code, a child’s custodian should be present whenever a child under the age of fifteen 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 eighteen must be conducted in such a manner that there is no danger that the interviewed person might be harmed. Moreover, particular caution is to be observed when the questioning concerns sexual matters. Particular care should be taken in order to ensure that the interview does not cause distress and does not become more intimate than the circumstances require. Questioning should not occur more often than necessary having regard to the nature of the investigation and the best interests of the child. Under section 18 interviews with children should (“bör”) be conducted by a person who is particularly suited 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, Article 4, of the Code). There is no corresponding provision applicable to children who are in the position of an 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, Article 14, of the Code, by which a statement made to the police or to the prosecutor or otherwise made 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, on the other, the advantages of a hearing before the court, the importance of the statement and all other relevant circumstances.