Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22692/93

by Ismo Uolevi VANHATALO

against Finland

The European Commission of Human Rights (First Chamber) sitting

in private on 18 October 1995, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 17 August 1993 by

Ismo Uolevi Vanhatalo against Finland and registered on

28 September 1993 under file No. 22692/93;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as submitted by the applicant, may be

summarised as follows.

The applicant is a Finnish citizen, born in 1950. He is a farmer

and resides at Karinainen, Finland.

In May 1989 the applicant's ex-wife, M, reported to the local

police that the applicant had abused her minor daughter, R, and that

she as her mother had become aware of these incidents about 18 months

earlier from a letter her daughter had written her in October 1987. On

15 August 1989 the local public prosecutor (nimismies) in Pöytyä made

a decision of non-prosecution on the grounds that the time-limit for

prosecution had expired. On the request of M, the Assistant Chancellor

of Justice (apulaisoikeuskansleri) demanded a further investigation in

the case and subsequently on 17 April 1990 orded the county prosecutor

(lääninsyyttäjä) to draw up an indictment against the applicant.

The applicant was thereafter charged with continued sexual

offences against a minor child, his step-daughter, contrary to chapter

20 section 3 and chapter 7 section 2 of the Penal Code. The alleged

incidents had taken place between spring 1984 and autumn 1987, when R,

who was born in 1975, was between the ages of nine and twelve.

During the preliminary investigations R was interrogated by the

police three times, namely on 16 May 1989, 27 October 1989 and

8 March 1990.

The case was heard by the District Court (kihlakunnanoikeus) of

Loimaa. The District Court heard altogether eight witnesses, of whom

five were summoned by the applicant. The prosecutor had summoned, inter

alia, a psychologist at the local family clinic, who had interviewed

R immediately after R's mother had shown the psychologist the letter

in which R had said that she had been abused by her step-father. In the

criminal proceedings instituted against the applicant the victim R was

under the Finnish legal system to be considered a party to the case,

i.e. a complainant. The District Court heard also R in order to obtain

evidence. According to the records, R was questioned in the absence of

both the applicant and R's mother, but their respective lawyers were

present at the hearing. The District Court also received documentary

evidence, inter alia the above-mentioned letter written by R and an

article about sexual abuse of children published by the National Board

of Social Welfare and National Board of Health, containing inter alia

information about the credibility of children's descriptions of sexual

abuse.

On 6 March 1991 the District Court dismissed the charge. The

District Court noted inter alia that in the evaluation of the evidence

it had to weigh the conflicting statements of the accused and the

complainant against each other. Taking into consideration the

seriousness of the charge, the verdict must not be based solely on the

statement of the complainant, in this case an under-age child.

Both the prosecutor and the complainant R appealed to the Court

of Appeal (hovioikeus) of Turku, which by its judgment of

2 December 1991 upheld the District Court's judgment without holding

an oral hearing in the case.

The complainant R appealed to the Supreme Court. According to

Finnish law a complainant has independent standing for prosecution

purposes. The Supreme Court granted R leave to appeal on 6 April 1992.

On 17 November 1992 the Supreme Court held an oral hearing, which

was recorded with a tape-recorder. The Supreme Court heard altogether

four witnesses, of whom three were summoned by the applicant. The

fourth witness was the above-mentioned psychologist at the family

clinic. In addition, the Supreme Court heard the complainant R in order

to obtain evidence. While R was heard for this purpose the judges and

R's counsel were present, while other persons, including the

prosecutor, were excluded. On the advice of his counsel, the applicant

did not oppose this procedure proposed by the Supreme Court. The

applicant and the other parties heard an audio recording of R's

statement and after this they had an opportunity to put questions to

R. The applicant did not avail himself of this opportunity.

By its judgment of 8 July 1993 the Supreme Court, after

evaluating the evidence, found the applicant guilty of the charge

brought against him and sentenced him to one year and four months'

imprisonment and to pay damages to R totalling FIM 50,000. In its

judgment the Supreme Court stated inter alia as follows:

(translation)

"There is no medical evidence in the case.... There were no

witnesses, who would have direct evidence of the incidents

mentioned in the charge. Because of this the case must be

decided on the basis of other evidence, mainly the

statements made by the parties. ...

In academic writings on the subject (Leena Linna and Esko

Varilo, "The sexual abuse of children in families",

Lakimies 2/1991 pages 137-147) it has been submitted, that

according to present research, under 3 percent of children

who tell about sexual abuse are lying. ...

In this case there have not appeared circumstances that

would show or give reason to suspect that R would lie. ...

Having taken into account all the circumstances in the case

the Supreme Court finds R's statement reliable."

The Supreme Court referred also to the above-mentioned letter

which R had written to her mother just before an appointment in the

local family clinic in October 1987 and to the testimony given by the

psychologist at the clinic, according to which the psychologist as an

expert had not doubted the credibility of R's description. The Supreme

Court noted, when considering the amount of damages, that R had stated

that she had consulted a psychiatrist twice a week over a period of two

years because of the abuse.

The applicant requested the Supreme Court to reopen the case on

the grounds that R had been questioned without his presence and that

the decision was based on the opinion of experts, who had, however, not

been heard during the trial. By judgment of 16 May 1994 the Supreme

Court rejected his request. The Supreme Court noted that R had been

heard in order to obtain evidence. Because of the nature of the case

her evidence had by virtue of chapter 17 section 34 of the Code of

Judicial Procedure (oikeudenkäymiskaari) taken place without the

presence of the applicant and other parties. The applicant and other

parties had been informed about this before the hearing. They had heard

R's statement on tape. After this the applicant, who had been assisted

by counsel, and other parties had had an opportunity to put questions

to R. The Supreme Court also noted that the article about sexual abuse

of children did not constitute evidence in the present case, but the

findings described in the article were taken into account as

comparative material when evaluating the credibility of R's statement

in the case.

Chapter 17, section 34 of the Code of Judicial Procedure to which

the court referred reads, in so far as relevant, as follows:

(translation)

"If the court considers that the witness will out of fear

or for some other reason not reveal everything he knows

about the case in the presence of the party, or if the

party disturbs or tries to mislead the witness when he is

speaking, the witness shall be questioned without the

presence of the party. Then the statement given by the

witness shall be read to the party, and he shall have the

right to put questions to the witness..."

COMPLAINTS

The applicant complains that he did not have a fair trial. He

claims in this respect that his right to examine witnesses against him

was violated. He submits that neither he nor his counsel were allowed

to be present during the time R gave evidence in the Supreme Court,

although its judgment was based solely on the statements made by R. He

further submits that R's counsel was, however, present while she gave

her evidence. Furthermore, the applicant maintains that he could hear

R's statement only on tape and that he did not have a chance to

question her. Finally, he contends that the recording of the

proceedings means that the procedure cannot be considered as having

been direct.

He further complains that his right to examine witnesses against

him was violated also because the Supreme Court based its judgment on

an article published in an ordinary magazine without questioning the

authors of the article as experts.

The applicant invokes Article 6 of the Convention.

THE LAW

The applicant complains of several infringements of Article 6

(Art. 6) of the Convention in connection with the criminal proceedings

instituted against him.

As far as relevant Article 6 (Art. 6) of the Convention reads as

follows:

"1. In the determination ... of any criminal charge

against him, everyone is entitled to a fair ... 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 applicant submits that because the Supreme Court excluded him

as well as his counsel from the courtroom during the evidence of the

complainant R, he did not have an opportunity to examine witnesses

against him. He also observes that the tape-recording of the hearing

was against the principle of directness of proceedings.

The Commission notes firstly that the taking of evidence is

governed primarily by the rules of domestic law and that it is in

principle for the national courts to assess the evidence before them.

The Commission notes further that it has consistently been held that

the guarantees contained in paragraph 3 of Article 6 (Art. 6-3) of the

Convention are specific aspects of the concept of a fair trial set

forth in paragraph 1 (Art. 6-1) (cf., inter alia, Eur. Court H.R.,

Unterpertinger judgment of 24 November 1986, Series A no. 110, p. 14,

para. 29). Accordingly, the Commission will have regard to them when

examining the facts under paragraph 1 of Article 6 (Art. 6-1).

The Commission further recalls that it must consider the

proceedings as a whole. Its task is to ascertain whether the

proceedings in their entirety, including the way in which evidence was

taken, were fair (cf. for example Eur. Court. H.R., Stanford judgment

of 23 February 1994, Series A no. 282-A, p. 10, para. 24). It follows

that the Commission must examine the question of fairness on the basis

of the proceedings at all three instances, including the Supreme Court.

This also follows from the fact that the guarantees of Article 6

continue to apply to the appeal proceedings where the opportunity to

lodge an appeal in regard to the determination of a criminal charge is

provided for under domestic law, since those proceedings form part of

the whole proceedings which determine the criminal charge at issue (cf.

for example Eur. Court. H.R., Monnell and Morris judgment of

2 March 1987, Series A no. 115, p. 21, para. 54).

All the evidence must normally be produced in the presence of

the accused at a public hearing with a view to adversarial argument.

As a rule the respect of the rights of the defence requires that the

defendant be given an adequate and proper opportunity to challenge and

question a witness against him either when he was making his statements

or at a later stage of the proceedings (see, among other authorities,

the Asch judgment of 26 April 1991, Series A no. 203, p. 10, para. 27).

In the instant case, the complainant R was heard in order to

obtain evidence at the District Court in the presence of the

applicant's counsel. At the Supreme Court the applicant and his counsel

were excluded while R was heard for the aforementioned purpose. The

purpose of obtaining R's evidence at first without the presence of the

applicant was to ensure that she could tell everything she knew about

the case without fear. After this questioning by the members of the

court the applicant and his counsel were, however, given the

opportunity to listen to the whole hearing on tape and challenge and

question R. The Commission also notes that the Supreme Court had

informed the applicant about the planned arrangements and the applicant

had not opposed this way of proceeding.

The Commission has regard to the special features of criminal

proceedings concerning sexual offences. Such proceedings are often

conceived of as an ordeal by the victim, in particular when the latter

is unwillingly confronted with the defendant. 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 victim's

private life. Therefore, the Commission 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 (Baegen v. the Netherlands, Comm. Report 20.10.94,

para. 77).

The Commission recalls that the charge involved a case of very

sensitive nature and that the complainant R was still a minor at the

time of the hearing at the Supreme Court. The purpose of her hearing

was to give the judges an opportunity to evaluate her credibility by

observing her demeanour without her being affected by the presence of

the applicant in any way and in this way obtain evidence for the case.

The Commission finds that the proceedings in the Supreme Court cannot

be regarded as arbitrary or unreasonable.

In addition, the statement of R was not the only evidence in the

case. In the course of the main proceedings in the District Court eight

witnesses and the complainant R were heard. The Supreme Court heard

three witnesses summoned by the applicant and a psychologist in the

presence of the applicant and his counsel.

The tape-recording was a technical method of recording the

hearing instead of using written documents and it did not in any way

violate the applicant's right to a fair trial.

Taking into account the particular nature of the offence at issue

and the possibilities the applicant had of defending himself against

the charges against him, the Commission finds that the applicant was

not deprived of the right to examine witnesses against him.

b. The applicant submits further that he and his counsel were

excluded from the court-room, yet R's counsel was present while she was

questioned.

In the Commission's opinion the fact that only R's counsel was

present during the whole hearing at the Supreme Court may raise a

separate question of whether the proceedings before the Supreme Court

also respected the rights of the defence and the principle of equality

of arms, which are features of the wider concept of a fair trial. The

Commission notes that it was only R who had brought the case to the

Supreme Court. She was, as already mentioned afore, to be concidered

not only as a victim but as a party to the case. The Commission recalls

that Article 6 para. 1 (Art. 6-1) of the Convention requires "equal

treatment" in the proceedings (see Eur. Court H.R., Bönisch judgment

of 6 May 1985, Series A no. 92, p. 14, paras. 28 et seq. and Eur. Court

H.R., Borgers judgment of 23 October 1991, Series A no. 214-B, p. 31,

paras. 24 et seq.), implying a "fair balance" between the parties (see

Eur. Court H.R., Feldbrugge judgment of 29 May 1986, Series A no. 99,

p. 17, para. 44).

With regard to the equality between the parties, the Commission,

notes, however, that R was still a minor and that she had apparently

had psychological problems and was thus more in need of assistance than

a complainant in general would have been. Furthermore, since the

purpose of R's hearing was solely to obtain evidence, neither she nor

his counsel submitted any claims against the applicant during this

hearing. Lastly, the Commission notes that the applicant had the

opportunity to put questions to R but he did not avail himself of this

opportunity.

Having regard to the nature of the case and R's special

circumstances, the Commission finds that the principle of equality of

arms has not been violated although R's counsel was present during her

evidence while at the same time the applicant's counsel had been

excluded from the court-room.

c. The applicant also complains that the Supreme Court based its

judgment on an article without questioning the authors of the article

as experts. The Commission, however, notes that a major part of the

trial was focused on evaluating the credibility of children's

descriptions of abuse. Over the proceedings as a whole the applicant

would have had the opportunity to summon an expert to give evidence

about this issue in general. The Commission notes that during the

proceedings he did not ask that an expert should be heard. The

Commission furthermore notes that the article was about abuse of

children in general. It did not contain any factual findings concerning

the parties in the present case (cf. No. 10532/83, Dec. 15.12.87,

D.R. 54, p. 25).

As regards the article on sexual abuse the Commission finds that

the article cannot be considered as equivalent to witness evidence and

that because of this there was no need to hear evidence from its

authors in the court.

The Commission accordingly finds no appearance of a violation of

Article 6 (Art. 6) of the Convention.

It follows that the application is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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VANHATALO v. FINLAND

VANHATALO v. FINLAND

LEXI