FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 17122/02 by B against Finland

The European Court of Human Rights (Fourth Section), sitting on 10 January 2006 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr J. Casadevall , Mr M. Pellonpää , Mr R. Maruste , Mr K. Traja , Ms L. Mijović , Mr J. Šikuta , judges , and Mr M. O ’ Boyle , Registrar ,

Having regard to the above application lodged on 16 April 2002 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Finnish national, who was born in 1957. She is represented before the Court by Mr Timo Skurnik . The respondent Government are represented by their Agent, Mr Arto Kosonen , Director in the Ministry for Foreign Affairs.

A. The circumstances of the case

The facts of the case, as submitted by the parties and as they appear from the documents, may be summarised as follows.

Investigation

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 .

On 3 December 1998 at the pre-trial stage, the applicant was shown the videotapes. It appears that her counsel was also present. She was given an opportunity to have questions put to the children, but she did not avail herself of the opportunity.

District Court

The applicant , among others, w as charged before the District Court ( käräjäoikeus , tingsrätten ) of Lahti with having sexually abused the two children on several occasions, from 1992 to 1996. The defendants denied the charges.

The District Court heard the applicant, the co-accused and ten witnesses, including a psychiatrist, two psychologist s 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. T he pre-trial investigation minutes and several medical reports were referred to as evidence . The children did not appear before the court. Nor did the applicant make any request to that effect.

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 ’ imprison ment. She was detained .

Court of Appeal

The applicant, among others , appealed, denying the charges. She argued that the conviction was based on indirect evidence but in her writ of appeal she did not, however, request that the children be heard before the Kouvola Court of Appeal ( hovioikeus , hovrätten ) .

On 26 April 2001 K. visited the applicant in prison. It appears that the applicant asked K. whether she had ever abused her. In front of other people K. withdrew her previous accusations, stating that she had never been abused by the applicant .

Having learnt of K. ’ s above statement, the applicant ’ s counsel made a request by phone to the Court of Appeal to the effect that K. be called as a witness to the forthcoming oral hearing or that she be questioned in an additional investigation conducted by the police where the interview could be videotaped.

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. and M.K. who had been present during the above visit to the prison . The videotapes, the pre-trial investigation minutes and the medical reports were referred to as 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 . S he 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 ” .

The applicant ’ s counsel repeated the above request at the oral hearing on 10 May 2001 . She also requested that she be allowed to pose questions to K. The Court of Appeal refused the requests , finding that the applicant and the witnesses each had given somewhat different testimonies on the discussions taking place during the above visit to the prison. 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 posed to K. at all. M.K. stated that K. had only answered “a question that appeared from the context”. However, the court found it established that K. had replied in the negative to the applicant ’ s question whether she had given truthful statements about the sexual abuse. The Court of Appeal noted that K. had not on her own initiative expressed her wish to withdraw her accusations against the applicant. It rather appeared that K. had been trying to forget her early childhood. Moreover, as K. had expressed her wish to re-approach her mother, whom she had not met for a long time, it was evident that she had been unable to give a considered response to the applicant ’ s question. The Court of Appeal also paid regard to the fact that it would be stressful for K. to be heard again. It was thus not established that the hearing of K. before the court or by any other means could bring additional evidence significant to the case.

In its judgment of 8 June 2001 the Court of Appeal considered that as a hearing in court could be harmful to the children, it was possible to use as evidence their statements during the pre-trial investigation. As to the discussion during the visit to the prison, the court repeated the reasons in its decision of 10 May 2001 . It concluded that the discussion of 26 April 2001 was not relevant. It also paid regard to the fact that it would be stressful for K. to be heard again. The Court of Appeal upheld the lower court ’ s judgment insofar as the applicant ’ s conviction and sentence were concerned.

Supreme Court

The applicant requested leave to appeal, arguing, inter alia , that K. should have been heard before the Court of Appeal and requesting that K. be heard before the Supreme Court ( korkein oikeus , högsta domstolen ), in person in one way or the other , and that the applicant be given an opportunity to put questions to her .

On 18 October 2001 the Supreme Court refused the applicant leave to appeal.

B. Relevant domestic law and practice

The Decree on Criminal Investigations and Coercive Measures ( asetus esitutkinnasta ja pakkokeinoista , förordning om förundersökning och tvångsmedel ; 575/1988) provides that when questioned during a pre-trial investigation the child shall be treated with due respect having regard to his or her age and level of development. Care shall be taken, in particular, that unnecessary harm is not caused to him or her at school, in a workplace or in any other environment important to the child. If possible, the questioning of a child 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 child is questioned (section 11).

T he Criminal Investigations Act ( esitutkintalaki , förundersökningslagen ; section 12; 449/1987 as in force at the relevant time ) provided that questioning and other investigation measures requested by a party should be carried out, if that party show ed that there was a possibility of these measures having an effect on the case , provided that the expenses so incurred were not disproportional to the nature of the case. The competence to decide on investigation measures requested by a party lay with the head of investigation during the pre-trial investigation and with the public prosecutor after the case had been transferred to him or her (section 15(3)). A pre-trial investigation had to be carried out in such a manner that no one wa s placed under suspicion without due cause and no one was unnecessarily subjected to harm or inconvenience (section 8(2)).

The Code of Judicial Procedure ( oikeudenkäymiskaari , rättegångsbalken ) lays down the applicable rules on receiving testimony. A statement in a pre-trial investigation record or another document may not be admitted as evidence in court, unless otherwise provided by an Act (chapter 17, section 11; 690/1997). The provision also concerns audio and video recordings of an oral 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 in court retracts an earlier statement or states that he or she is unable or unwilling to testify before the court (chapter 17, section 32; 571/1948).

The court may exceptionally admit as evidence an oral testimony given during a pre-trial investigation, if the witness in question cannot be questioned before the court (chapter, 17, section 11).

At the time of the proceedings in question, there were no provisions concerning the use as evidence of a video recording in which a child had given a statement during the pre-trial investigation. The law was however amended with effect from 1 October 2003 to the effect that a testimony by a person under 15 years of age or a mentally disturbed person recorded on audio or video tape 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 testimony (chapter 17, section 11(2); 360/2003). This new provision places emphasis on both the idea that giving testimony before the court may be detrimental for a person such as the above and on the importance of the rights of the defence being respected.

COMPLAINT

The applicant complained , under Article 6 §§ 1 and 3 (d) of the Convention, that that she was denied a fair hearing in that she was not given a n adequate opportunity to put questions to the witnesses against her, i.e. the children, before the domestic courts. It is true that she was afforded such an opportunity during the pre-trial investigation, but she did not realise that it would be the only opportunity . She also complained about the refusal of her request that K. be heard before the Court of Appeal, either at the oral hearing or elsewhere.

THE LAW

The applicant complained, under Article 6 §§ 1 and 3(d) of the Convention, that the rights of the defence in respect of witnesses had not been respected.

Article 6 reads, in so far as relevant:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] tribunal ...

...

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”

The Government contested the allegation. They emphasised that the applicant had not requested that the children be heard before the District Court and that she had in fact accepted that they not be heard given their age. The Government submitted that repeated questioning was upsetting for a child, in particular in situations where the child was a victim of a serious sexual offence. The children in the present case had been harmed to a much lesser extent by the interviews at the pre-trial stage than they would have been had they appeared in court.

The Government considered that the domestic authorities and courts had sought to respect the rights of the defence in that the children had been videotaped when they gave their statements during the pre-trial investigation. Following the interviews, the video tapes had been shown to the applicant with counsel and they had been asked whether they wished to put questions to the children. They had declined. The tapes had also been shown during the court proceedings, enabling the parties and the courts to establish how the interviews had been conducted and how the children had behaved when giving their statements. In addition, the applicant had been able to make comments which she had also done.

The Government considered that the courts had paid express attention to the uncertainties concerning the credibility of the children ’ s statements and to the assessment of it. The District Court stated, for instance, that it took into account the possibility that the children ’ s chaotic background might have had an influence on their ability to distinguish fantasy from the truth. The District Court and the Court of Appeal heard ten and 14 witnesses respectively. The video recordings were thus not the only evidence in the case. There was a large amount of evidence supporting the children ’ s credibility.

The applicant maintained that the rights of the defence had not been respected. It was significant that everyone who had been present during the visit to the prison stated that K. had answered the question about the alleged abuse in the negative. L., M.K. and the applicant had thus agreed on this point. The treating psychologist ’ s opinion that K. should not be heard only concerned giving evidence in court whereas the applicant had pointed to the fact that there were other ways of questioning her. A police officer had even stated that he was ready to question K. anew, but the court refused to order an additional investigation.

The applicant considered that the Court of Appeal ’ s reasoning that K. had not altered her statement of her own motion was irrelevant. What was decisive was that she had answered that no abuse had taken place.

The applicant submitted that since at the pre-trial stage she had not been informed of the fact that there would not be any opportunity to put questions to the children after the closing of the investigation, she had not been afforded a sufficient opportunity to put questions to them. At the pre-trial stage the applicant had found the suspicions against her too absurd to require use of the possibility to pose questions. The police officer conducting the interview did not inform her of the manner in which the questioning would be carried out.

The applicant did not contest that the injured party in general felt anguish when questioned about the events, be it in a pre-trial investigation or before a court. Nonetheless, the applicant ’ s rights required that at least K. be heard. In any event, given the fact that K. had stated that no abuse had taken place, the Court of Appeal should have ensured that she was heard her. Lastly, the applicant pointed to some discrepancies in the children ’ s statements showing the uncertain basis of the conviction.

The Court considers, in the light of the parties ’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

Michael O ’ Boyle Nicolas Bratza Registrar President