CASE OF F AND M v. FINLAND
Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-d - Examination of witnesses;Article 6 - Right to a fair trial);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Nicolas Bratza
5. The applicants were born in 1953 and 1950 respectively. 6. F and M are the father and the mother of D, a girl born on 10 June 1984. On 4 June 1991 she was admitted to the child psychiatric department of a hospital for a six-week period for observation. During the observation she mentioned that she had played “finger games” with her father. According to the parents, D had referred to hobby crafts. It appears that the psychologist and the social welfare authorities interpreted this as sexual petting. 7. D received treatment at the hospital from 5 August 1991 to 12 August 1994, following which she went to live in a substitute family. The applicants were allegedly refused access to D during her hospitalisation. 8. Meanwhile, on 18 November 1991 the Social Welfare Board (sosiaalilautakunta, socialnämnden) decided to place D in public care on account of a suspicion that she had been sexually abused. The applicants unsuccessfully challenged the public care decision in the administrative courts. It appears that the Supreme Administrative Court rendered its decision in 1995. 9. The social welfare officials allegedly told the applicants that the girl would return to live with them if they assumed responsibility for the situation and acknowledged the abuse. Although the applicant father was allegedly not guilty of any abuse, on 23 October 1991, he admitted the abuse to the social welfare officials and a psychiatrist in order to have D return home. He did not describe the nature of the abuse. On 7 May 1992 he withdrew his admission as he felt that he could not bear having this lie on his conscience for the rest of his life. 10. In 1995 the applicants lodged an application with a view to having the public care terminated. In the course of those proceedings, on 21 March 1995, the Social Welfare Board reported to the police the alleged sexual abuse committed in 1990-91. As to the fact that several years had passed since the initial suspicion had arisen, the Board explained that it had refrained from taking criminal action in order to afford the applicants an opportunity to seek therapy. If the therapy had proved successful, the public care could have been terminated and D could have returned to live with the applicants. The Board apparently considered that the applicants' therapy had proved unsuccessful. 11. As noted above, the alleged sexual abuse was reported on 21 March 1995. On 19 October 1995 the applicant father was questioned by the police. He denied any abuse. D, now aged 11, was not questioned during the pre-trial investigation. Nor was the father asked whether he wished to have questions put to the girl. The investigation was completed on 17 February 1997. 12. On 27 January 1998 the public prosecutor brought charges against the father for sexual abuse of a minor and for sexual intercourse with a descendant (lapseen kohdistuva haureus ja sukurutsa jälkeläisen kanssa, otukt med barn och blodskam med avkomling). 13. In its written submission of 5 June 1998 to the District Court (käräjäoikeus, tingsrätten) the Social Welfare Board claimed compensation on behalf of D. It also submitted a written medical opinion by Dr S.V., a psychiatrist, according to which the hearing of D before the court would harm her development. It appears that Dr S.V. had not seen D since 1992 or 1993. 14. On 26 August 1998 the applicant father was summoned to the District Court hearing. On 17 September 1998 he submitted his written submission, denying the charges. He criticised the Social Welfare Board for not having reported the alleged abuse sooner, given the fact that the report had been based on a suspicion which had first arisen in 1991. Further, he requested that D, now aged 14, be heard before the court. 15. At the hearing on 28 September 1998 he denied the charges and maintained that D should be heard either before the court or elsewhere. The court refused the request, considering that the hearing of the girl before the court would not be in her best interests having regard to the time that had passed since the alleged offences and the therapy that she had received. The court made reference to the above written medical opinion prepared by Dr S.V. 16. The court received oral evidence from the social welfare director L.K., the applicant mother, Dr S.V., E.V, a psychologist, Dr H-O.P., a psychiatrist, A.V., a social worker, D's substitute mother and D's teacher. E.V. gave evidence to the effect that she had heard about the events from D herself. D had said that her father had tickled her genital area and that she had tickled his penis which had risen following which he had urinated on her hand. She had also said that he had put his penis in her mouth and kept it there for a long time until he had urinated into her mouth. D had also lain on top of her father and his penis had been on her genital area. Dr H-O.P., L.K. and A.V. testified to having been present when the applicant father had admitted the alleged abuse. None of the witnesses had made any observations on the alleged acts. 17. The court noted that the evidence produced before it was based on D's statements to the medical personnel of the institution in which she had been treated, and on circumstances that had been observed during the observation. There was no forensic evidence as to the alleged abuse. On the other hand, there was the admission by the applicant father which had seemed authentic and true to the above witnesses. The court concluded that the statements of Dr S.V. and E.V. proved that the applicant father was guilty of the alleged offences. Having regard to the seriousness of the charges, his admission alone did not suffice to prove his guilt. However, it did not lack significance since according to A.V. and L.K. it had been made voluntarily without any pressure having been exercised on him; nor had he been misled. 18. On 8 October 1998 the District Court convicted the applicant father as charged and sentenced him to a suspended term of one year and two months' imprisonment. He was ordered to pay compensation plus the legal costs of D's representation. 19. On 9 November 1998 the applicant father appealed, maintaining that D should be heard. He also requested that the National Authority for Medico-legal Affairs (terveydenhuollon oikeusturvakeskus, rättsskyddscentralen för hälsovården) be invited to interview her. 20. The Court of Appeal (hovioikeus, hovrätten) refused the requests. It however held an oral hearing and received the same oral evidence as had been presented to the lower court. Dr S.V. now testified to having met D some weeks before the Court of Appeal hearing and to having asked her about the alleged abuse. D had replied that her father had not abused her sexually in any way. The Court of Appeal also received oral evidence from the applicant father. 21. On 1 July 1999 the Court of Appeal amended the District Court's judgment in that it rejected the charge of sexual intercourse with a descendant. It upheld the rest of the lower court's judgment, endorsing its reasoning. It did not comment separately on the testimony of Dr S.V. 22. On 30 August 1999 the applicant father appealed further, maintaining that D should be heard in particular as she had denied the sexual abuse to Dr S.V. some weeks before the Court of Appeal hearing. He repeated his request that the National Authority for Medico-legal Affairs be invited to interview the girl. He also submitted a letter from D in which she stated that nothing improper had taken place between her and her father. 23. On 14 December 1999 the Supreme Court (korkein oikeus, högsta domstolen) granted leave to appeal insofar as the compensation claims were concerned and received the Social Welfare Board's reply to the appeal. 24. On 2 May 2000 the Supreme Court invited an expert opinion from the National Authority for Medico-legal Affairs on, inter alia, whether D could be heard before the court. On 12 September 2000 the Authority received an expert statement running to 7 pages from its standing expert, Dr E.R. It also invited an opinion by the psychiatrist who had treated D, Dr S.V. It was received on 26 February 2001. As these opinions were partly contradictory in respect of the question whether D could be heard before the court, the Authority requested, on 5 March 2001, Dr E.R.'s comment on the opinion of Dr S.V. It was received on 28 March 2001. The Authority submitted its opinion to the Supreme Court on 4 April 2001 following which it was communicated to the parties for comment. 25. On 12 December 2001 the Supreme Court refused leave to appeal insofar as the criminal aspects of the case were concerned. As to the compensation claims, it quashed the lower courts' judgments and remitted the case to the District Court as the Social Welfare Board had lacked competence to represent D in the proceedings. 26. On 14 December 2001 the case was restored to the District Court's case-list. 27. On 16 September 2002 the court, having held an oral hearing at which it heard D, among others, ordered the applicant father to pay compensation to D in the amount of 20,182 euros plus interest from 4 August 1991. 28. The applicant father and D appealed. On 24 August 2004 the Court of Appeal, having held a hearing, revoked the lower court's judgment and rejected the claims. In those proceedings D now aged 20 testified that she had never been sexually abused by her father. No one appealed. 29. Meanwhile, on 10 June 2002 when D reached the age of majority she moved back in with her parents. 30. 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). 31. 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)). 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). 32. 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)). 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). 33. 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). 34. The Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken) lays down the applicable rules on receiving testimony. 35. 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). 36. 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. 37. 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. 38. The Code of Judicial Procedure was amended with effect from 1 October 1997 to the following effect. 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 as evidence such a statement, if the witness in question cannot be questioned before the court (chapter 17, Article 11; Act no. 690/1997). 39. The Code of Judicial Procedure was again 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. 40. 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.” 41. 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.”