CASE OF B. v. FINLAND
No violation of Art. 6-1+6-3-d
Nicolas Bratza
6. 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. 7. 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. 8. 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. 9. 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. 10. 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. 11. 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). 12. 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. 13. 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. 14. 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”. 15. 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. 16. 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.” 17. 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. 18. 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. 19. 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. 20. 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. 21. On 18 October 2001 the Supreme Court refused leave to appeal. 22. 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). 23. 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). 24. 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). 25. 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). 26. The Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken) lays down the applicable rules on receiving testimony. 27. 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). 28. 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. 29. 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. 30. 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. 31. 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.” 32. 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.”