CASE OF A.L. v. FINLAND
Violation of Art. 6-1+6-3-d;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
5. On 13 March 2001 a mother contacted the police on account of a suspicion that her child R., a girl born in December 1986, had some ten days earlier been sexually abused by a relative, the applicant. On 21 March 2001 the police took a statement from the mother. On 9 July 2001 the police questioned the applicant. R. was interviewed by the police on 30 July 2001 in the presence of a social worker. No other person was present at the interview, nor was it recorded. 6. The applicant was subsequently charged before the Tampere District Court (käräjäoikeus, tingsrätten) with having sexually abused R., who was 14 years’ old at the time, by touching her sexual organs. The applicant denied the charge. The court received testimony from R.’s mother and the applicant as well as three witnesses who testified on the applicant’s behalf. The prosecutor submitted a video recording of two interviews with R. conducted by a medical expert, H., on 17 and 18 April 2001. H. was heard as a witness in this connection. The prosecutor also submitted a medical statement containing an assessment of the interviews in question and another medical certificate containing findings relating to R.’s physical examination. The prosecutor further produced a statement given on 14 March 2001 by a rehabilitation centre for intellectually disabled persons. From the statement it transpired that R. had the intelligence level of a child aged 6 to 8½ years. Written evidence of R.’s need for professional help was submitted on her behalf. 7. On 20 November 2001 the District Court convicted the applicant of sexual abuse of a child and sentenced him to a suspended term of seven months’ imprisonment. As evidence, the court relied firstly on the testimony of R.’s mother, which it found more credible than that of the applicant and his witnesses and secondly, on the video recording along with H.’s testimony. The court noted that R. had given similar accounts of the events to her mother and to H. It further noted that during the interviews R. had talked to H. openly and with confidence, but her behaviour had clearly changed when the issue of the alleged abuse had been broached. R. had, nevertheless, been able to give an account of the events in a rather versatile and detailed manner. The recording gave the court no reason to suspect that R. had been repeating some other person’s words or that she had imagined the events. 8. The applicant appealed against the judgment to the Turku Court of Appeal (hovioikeus, hovrätten), arguing, inter alia, that the District Court should not have decided the case without hearing R. in person. He had not been given the opportunity to put questions to R. at any point of the proceedings. Nor had he been given an opportunity to watch the video recording of her interviews before the main hearing, yet the recording had been an essential part of the evidence leading to his conviction. The applicant requested that the Court of Appeal hold an oral hearing and that R. be heard in person. 9. On 9 January 2003 the Court of Appeal refused the applicant’s request to hear R. in person as it might be detrimental to her, taking into account her level of development and the nature of the issue in question. The court relied on the principle contained in section 10(1) of the Act on the Publicity of Court Proceedings (laki oikeudenkäynnin julkisuudesta, lag om offentlighet vid rättegång, Act No. 945/1984), which provided that a person below the age of 15 could not attend a hearing if the court found that this could be detrimental to him or her, and to section 15(2) of the Child Custody and Right of Access Act (laki lapsen huollosta ja tapaamisoikeudesta, lag angående vårdnad om barn och umgängesrätt, Act No. 361/1983), which provided that a child could be heard in court only if it was clear that this would not be detrimental to him or her. This decision was not subject to separate appeal. 10. In the subsequent oral hearing, the Court of Appeal was presented with the same evidence as had been before the District Court, with the addition of four photographs and the floor plan of the applicant’s apartment. On 27 February 2003 the court upheld the lower court’s judgment finding no reason to deviate from its assessment of the evidence. 11. The applicant sought leave to appeal to the Supreme Court (korkein oikeus, högsta domstolen) maintaining, inter alia, that his Convention right to examine witnesses against him had been breached. He requested, inter alia, that the court refer the case back to the lower courts for re-examination and that he be granted an opportunity to put questions to R., either in an oral hearing or by using other arrangements. In the alternative, the applicant requested that an oral hearing be held in the Supreme Court and that testimony be obtained from the applicant and the three witnesses on his behalf. 12. On 14 January 2004 the Supreme Court refused leave to appeal. A. The pre-trial investigation 13. 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). 14. The Criminal Investigations Act (esitutkintalaki, förundersökningslagen, Act No. 449/1987) provides that 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. 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). 15. As of 1 January 2004, the Criminal Investigations Act provides also that the questioning of a victim or a witness (from now on referred to as 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 witness in person, due to his or her young age or disturbed mental state, 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 also allow 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 the questions through legal counsel or another representative. However, the investigator may order that the questions be put through his or her intermediary (section 39a, Act No. 645/2003). B. The receipt of evidence in court 16. At the time of the proceedings in question, apart from the leave to appeal proceedings in the Supreme Court, there were no legal provisions concerning the use as evidence of a video recording of testimony given by a child during the pre-trial investigation. 17. The Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken) lays down the applicable rules on receiving testimony. The relevant provisions at the time of the proceedings in question, as regarded the proceedings in the lower courts, provided as follows. 18. A statement included in a pre-trial investigation report or another document, or a statement recorded by other means, 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, sections 11(1)(2) and 11(3), Act No. 690/1997). 19. If a person called as a witness is less than 15 years old, 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, section 21, Act No. 571/1948). 20. The Code of Judicial Procedure was amended with effect from 1 October 2003. 21. According to the current provisions, the testimony of a person under 15 years old, or a mentally disturbed person, recorded on audio or videotape 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, section 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. 22. As to hearing a child under the age of 15, or a mentally disturbed person, Chapter 17, section 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 (from now on referred to as 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.