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FOURTH
SECTION
CASE OF
A.H. v. FINLAND
(Application
no. 46602/99)
JUDGMENT
STRASBOURG
10
May 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of A.H. v. Finland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr G. Bonello,
Mr K. Traja,
Mr L.
Garlicki,
Ms L. Mijović,
Mrs P. Hirvelä,
judges,
and Mr T.L. Early, Section Registrar,
Having
deliberated in private on 12 April 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 46602/99) against the Republic
of Finland lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Finnish national, (“the applicant”),
on 30 November 1998. The President of the Chamber acceded to the
applicant's request not to have his name disclosed (Rule 47 § 3
of the Rules of Court).
- The
applicant, who had been granted legal aid, was represented by Mr M.
Jantunen, a lawyer practising in Jyväskylä. The Finnish
Government (“the Government”) were represented by their
Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
- The
applicant alleged that the rights of the defence in respect of
witnesses, i.e. the child complainant, had not been respected.
- By
a decision of 31 May 2005, the Court declared the application
admissible.
- The
applicant and the Government each filed further written observations
(Rule 59 § 1). The Chamber having decided, after consulting the
parties, that no hearing on the merits was required (Rule 59 § 3
in fine), the parties replied in writing to each other's
observations.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The investigation
- On
24 February 1997 T., a six-year old boy, described to S., a
psychologist, that he had experienced improper touching while in day
care and referred to the applicant in this connection. The interview
was recorded on videotape in the Family Advice Centre.
- The
next day the alleged offence was reported to the police. On 13 March
1997, T. was interviewed again by S., on that occasion in the course
of the pre-trial investigation which had been opened. That interview
was also recorded on videotape.
- The
applicant was questioned on 26 and 27 March 1997. He was not
aware of the existence of the above recordings.
- On
7 April 1997 S. submitted a written opinion on the credibility of
T.'s statements.
- In
his closing argument on an unspecified date the applicant contested
the alleged improper touching. He noted that the videotape, which he
had become aware of following the submission by S. of the
above-mentioned written opinion, and the opinion itself, were
indirect evidence, which in the light of the Convention had to be
treated with extreme care. He questioned whether the questions put to
the boy had not been leading in nature. He also submitted that the
boy would have to be heard in court, should charges be brought. He
did not request an additional investigation.
B. The Jyväskylä District Court
- The
applicant was charged with having indecently touched the boy when
working at a day nursery which the boy attended. The alleged offence
had taken place repeatedly over a period of several months beginning
in the autumn of 1996.
- The
video recording was played back in the District Court (käräjäoikeus,
tingsrätten) and the court heard evidence from the
applicant, T.'s mother and S., the psychologist who had interviewed
the boy. H., a doctor in psychology specialising in criminology and
forensic psychology, who had not interviewed the boy herself, was
also heard as a witness. Several other witnesses, including the
applicant's colleagues and the parents of other children in day care,
gave testimony. None of the witnesses made any observations on
the alleged acts. The parents gave evidence only on the perceived
changes in their children's personality. The psychologist testified
only about the reliability of T.'s statements.
- On
29 October 1997 the District Court convicted the applicant of sexual
abuse and sentenced him to a suspended term of seven months'
imprisonment. It reasoned:
“...
S. has interviewed T. and the interviews have been
recorded on videotape. The videotape has been played back in the
District Court where witnesses S. and H. have also seen it. S. and H.
have been heard as witnesses and [the applicant] has had an
opportunity to put questions to them. The fact that [the applicant]
had no opportunity to put questions to T., for example during the
pre-trial investigation, does not mean that the above-mentioned
evidence could not be taken into account. At the time of the
pre-trial investigation T. was six years old and he had his seventh
birthday in August 1997. Thus, he could not be heard before the
court. Even though [the applicant] has had no opportunity to put
questions directly to T., the rights of the defence cannot be
considered to have been jeopardised. In the light of the evidence
submitted to it, the District Court has no doubt that [the applicant]
is guilty [...].
...”
C. The Vaasa Court of Appeal
- The
applicant, the prosecution and the complainant appealed, arguing that
the lower court had based his conviction on T.'s testimony as given
to his mother and also later recorded on videotape. He requested the
appellate court to hold that this indirect evidence could not be used
in evidence. He also repeated his view that leading questions may
have been put to the boy. He stated that his right to examine
witnesses had been violated as he had not had an opportunity to put
questions to T.
- On
26 June 1998 the Court of Appeal (hovioikeus, hovrätten),
having held an oral hearing, upheld the conviction but increased the
sentence to fourteen months' imprisonment with immediate effect. It
found that the technical quality of the videotape, which had been
played back in the court, was poor as regards its image and sound
reproduction and that the contents of T.'s statements could not be
reliably assessed merely on the basis of that recording. The
recording however showed that S. had carried out the interview
without any preconceived idea of its outcome. The statements of two
of the applicant's colleagues showed that it would have been possible
for the applicant to have acted as described in the indictment
without anyone noticing. The statements of T.'s mother and other day
care children's parents showed that there had been changes in their
children's behaviour after they had been in contact with the
applicant. The court did not mention the applicant's argument that he
had not been able to put questions to T.
D. The Supreme Court
- The
applicant sought leave to appeal, arguing that he had not been
afforded an opportunity to put questions to T. The indirect evidence
should therefore have been rejected.
- On
25 September 1998 the Supreme Court refused leave to appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The pre-trial investigation
- 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).
- 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).
- 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).
- 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).
B. The receipt of evidence in court
- The
Code of Judicial Procedure (oikeudenkäymiskaari,
rättegångsbalken) lays down the applicable rules on
receiving testimony.
- 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).
- 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.
- 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.
C. Subsequent amendments
- 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).
- 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.
- 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.”
- 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.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (d)
OF THE CONVENTION
30. The
applicant complained about a breach of Article 6 § 3 (d) of the
Convention. Given that the guarantees in paragraph 3 of Article 6 are
specific aspects of the right to a fair trial set forth in paragraph
1, it is appropriate to examine the complaint under the two
provisions taken together (see Asch v. Austria, judgment of 26
April 1991, Series A no. 203, p. 10, § 25). Article 6 reads in
so far as relevant:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair and
public hearing ...
3. Everyone charged with a criminal offence
has the following minimum rights:
...
(d) to examine or have examined witnesses
against him and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses against him;”
A. The parties' submissions
1. The applicant
- The
applicant submitted that in his closing argument in the pre-trial
investigation he had pointed out that his right under the Convention
had not been respected in that the police had failed to afford him an
opportunity to put questions to the boy. As they had also failed to
inform him about the planned interviews and subsequently about the
recording, the applicant had not, even in theory, had had an
opportunity to have questions put to the boy. He had highlighted
these shortcomings before the courts. Affording the applicant an
opportunity to have questions put to the boy in the pre-trial
investigation would have been vital as it would appear that the
ability of children to form their own opinions and to reply to
questions truthfully is greater in the initial phase of the
proceedings, before they have been interviewed and received therapy.
- The
applicant argued that it should not be for the defendant to insist
that he or she be given an opportunity to have questions put to a
witness before the court, because the defence did not have a duty to
contribute to the establishment of guilt. That is why the applicant
had not requested that the boy be heard by the courts. It was for the
authorities to ensure that the rights of the defence were respected.
In addition, there was a long-standing practice whereby courts did
not hear very young children. The applicant could not have obtained
the boy's attendance in court had he tried to do so.
- Referring
to domestic procedure and practice, the applicant submitted that it
would have been possible to afford him an opportunity to have
questions put to the boy during the pre-trial investigation or, at
the very least, the prosecutor could have ordered an additional
pre-trial investigation. He could have been given an opportunity to
have questions put to the boy through his counsel or the psychologist
during an additional investigation. This way of proceeding had by no
means been rare at the time. The judicial authorities had failed to
secure the rights of the defence in a situation where the defence had
expressly pointed to the very breach of the Convention.
- While
agreeing that he had been provided with an opportunity to question
the psychologist who had interviewed the boy and the other witnesses
heard by the courts, the applicant pointed out that he had at no time
had an opportunity to have questions put to the boy through, for
instance, the intermediary of the psychologist.
- The
applicant contested the Government's assertion that the Court of
Appeal had not relied on the recording in question. On the contrary,
it had based his conviction on it to a decisive extent. The video
recording had been the key evidence and S.'s statements had been
based on T.'s account of the events as recorded on the videotape.
2. The Government
- The
criminal investigation had been carried out in accordance with the
practice at the material time. It had been relatively rare to provide
a suspect, or his or her counsel, with an opportunity to put
questions to the victim during the investigation. The national
legislation did not contain any explicit provisions on the obligation
to provide an opportunity to put questions to other parties to the
proceedings or to witnesses. This was at the investigator's
discretion.
- The
Government submitted that the offence had been reported on the day
after the boy had had his first discussion with the psychologist. The
video recording of that discussion and of a subsequent interview had
been communicated to the police by the Family Advice Centre. These
interviews had not been requested by the police and were not
therefore interviews within the meaning of the Criminal
Investigations Act. No police officer had been present during the
interviews. In his closing statement in the pre-trial investigation
the applicant had not requested to be given an opportunity to have
questions put to the boy but had only stated that should the case go
to court, the boy would have to be heard in person so that he could
put questions to him. He had also stated that he would adduce a
statement by an expert in child psychology as evidence regarding the
credibility of the statements of child victims. He had considered
that there had been no need to hear such an expert in the pre-trial
investigation. The Government submitted that it would not have been
possible, or it would have been very exceptional to hear the young
boy in court. The videotape containing the interviews had been part
of the investigation materials to which the parties as a rule had
access before giving their closing statements.
- The
Government argued that the applicant had been given an opportunity to
challenge the boy's statement and to present his own views on it
first in the pre-trial investigation and later before the courts,
although there had been no possibility of cross-examination. He had
never requested an opportunity to put questions to the boy. The
District Court had relied on the videotape only as additional
evidence and thus the conviction had not been based solely or to a
decisive degree on it. The court had also been aware of the fact that
the videotape could not be used as evidence in the normal sense. The
Court of Appeal, noting that the technical quality of the videotape
was so poor that it did not provide reliable evidence on the details
of the statement, had not relied on the videotape at all. Thus, the
judgment of the appellate court had been entirely based on other
evidence presented at the hearing. The applicant had been given the
opportunity to put questions to all the witnesses including the
psychologist interviewing the boy. There was no indication that
grossly unfair or arbitrary conclusions had been drawn from the
evidence.
- The
proceedings as a whole were fair, taking into account the number of
witnesses, the oral hearing in the Court of Appeal, the fact that the
District Court had not considered the videotape as constituting the
main evidence but only additional evidence, and that the Court of
Appeal had used the videotape only to support the finding that the
boy's interviews had been carried out without any pre-conceived
attitudes.
B. The Court's assessment
- All
the evidence must normally be produced at a public hearing, in the
presence of the accused, with a view to adversarial argument.
However, the use in evidence of statements obtained at the stage of
the police inquiry and the judicial investigation is not in itself
inconsistent with paragraphs 1 and 3 (d) of Article 6, provided that
the rights of the defence have been respected. As a rule, these
rights require that the defendant be given an adequate and proper
opportunity to challenge and question a witness against him or her
either when the statements were made or at a later stage of the
proceedings (see Saïdi v. France, judgment of 20
September 1993, Series A no. 261-C, p. 56, § 43, and A.M. v.
Italy, no. 37019/97, § 25, ECHR 1999-IX). A conviction
should not be based either solely or to a decisive extent on
statements which the defence has not been able to challenge (see,
mutatis mutandis, Doorson v. the Netherlands, judgment
of 26 March 1996, Reports of Judgments and Decisions 1996 II,
p. 472, § 76). Article 6 does not grant the accused an unlimited
right to secure the appearance of witnesses in court. It is normally
for the national courts to decide whether it is necessary or
advisable to hear a witness (see, among other authorities, Bricmont
v. Belgium, judgment of 7 July 1989, Series A no. 158, p.
31, § 89).
- The
child complainant in this case should for the purposes of Article 6
§ 3 (d) be regarded as a “witness”, a term to be
given an autonomous interpretation (see Asch v. Austria, cited
above, p. 10, § 25), because his statements, as recorded on
videotape in the Family Advice Centre, were played back in court and
used in evidence against the applicant.
- Criminal
proceedings concerning sexual offences are often conceived of as an
ordeal by the victim, in particular when the latter is unwillingly
confronted with the defendant. These features are even more prominent
in a case involving a minor. In the assessment of the question
whether or not in such proceedings an accused received a fair trial,
account must be taken of the right to respect for the private life of
the alleged victim. Therefore, the Court accepts that in criminal
proceedings concerning sexual abuse certain measures may be taken for
the purpose of protecting the victim, provided that such measures can
be reconciled with an adequate and effective exercise of the rights
of the defence (see Baegen v. the Netherlands, judgment of 27
October 1995, Series A no. 327-B, opinion of the Commission, p. 44, §
77). In securing the rights of the defence, the judicial authorities
may be required to take measures which counterbalance the handicaps
under which the defence labours (see Doorson v. the Netherlands,
cited above, p. 471, § 72, and P.S. v. Germany, no.
33900/96, § 23, 20 December 2001).
- The
Court observes that the applicant was never given an opportunity to
have questions put to the child. Before the close of the pre-trial
investigation and having contested the allegation that he had
improperly touched the child, he noted that the videotape and the
written opinion of S. were indirect evidence, which in the light of
the Convention had to be treated with extreme care. He stated that
leading questions may have been put to T. and that T. would have to
be heard in court, should charges be brought. He did not request an
additional investigation. As to the proceedings in the District Court
and the Court of Appeal, it should first be noted that the applicant
did not request T.'s attendance. In view of the apparent absence of
cases where counsel for the defence had successfully requested the
cross-examination of a child complainant of the same age as the child
in the present case, the Court accepts that the applicant could not
have obtained T.'s appearance in person before the courts.
- T.'s
statements as recorded on videotape in the Family Advice Centre,
attached to the pre-trial investigation record and played back in the
District Court and the Court of Appeal, constituted the only direct
evidence implicating the applicant. The witnesses heard by the courts
had made no observations on the alleged acts (see paragraph 15
above). In contrast to the case of S.N. v. Sweden
(no. 34209/96, ECHR 2002 V) in the present case neither the
applicant nor his counsel had at any stage been afforded an
opportunity to have questions put to the child. An examination of the
case file does not disclose any particular circumstances which would
have prevented this.
- In
these circumstances, the use of this evidence involved such
limitations on the rights of the defence that the applicant cannot be
said to have received a fair trial.
Therefore
there has been a violation of Article 6 § 1 taken together
with Article 6 § 3 (d).
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- Under
the head of pecuniary damage the applicant claimed 118,258.43 euros
(EUR) for loss of income following his sentence.
Under
the head of non-pecuniary damage he claimed compensation for
suffering and distress in the amount of EUR 85,900 broken down as
follows: EUR 52,500 caused by the imprisonment; EUR 8,400 caused by
the probationary period; and EUR 25,000 caused by the sentence
itself.
- The
Government considered that there was no causal link between the
alleged violation and the pecuniary damage alleged.
As to
the claim for non-pecuniary damage the Government considered it
excessive. Were the Court to find a violation, any compensation
awarded should not exceed EUR 2,200.
- The
Court cannot speculate about the outcome of the proceedings had they
been in conformity with Article 6. The Court has found a violation of
the applicant's right to a fair trial but finds no sufficient causal
link between that violation and the pecuniary damage allegedly
suffered. This claim must therefore be rejected.
The
Court accepts that the impossibility for the applicant to have
questions put to T. caused the applicant non-pecuniary damage, which
cannot be made good by the mere finding of a violation. The Court,
making its assessment on an equitable basis, awards the applicant EUR
3,000 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant claimed costs and expenses in the Strasbourg proceedings in
the amount of EUR 9,532. The legal aid granted by the Council of
Europe (EUR 801) had been deducted in calculating the claim.
- The
Government considered the hourly rate excessive.
- Having
regard to the information in its possession, the Court awards the
applicant EUR 6,000 (inclusive of value-added tax).
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds that there has been a violation of
Article 6 § 1 of the Convention taken together with Article
6 § 3 (d) of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts:
(i) EUR
3,000 (three thousand euros) in respect of non-pecuniary damage;
(ii) EUR
6,000 (six thousand euros) in respect of costs and expenses;
(iii) any
tax that may be chargeable on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's
claims for just satisfaction.
Done in English, and notified in writing on 10 May 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
