DISSENTING OPINION OF JUDGE NIEMI

I respectfully disagree with the majority ’ s conclusion that there has been a violation of Article 6 § 1.

I find that the present case raises important aspects of a fair trial . I certainly agree with the majority that criminal proceedings concerning sexual offences are often perceived as an ordeal by the victim, and that these features are even more prominent in a case involving a minor (paragraph 42 in the present judgment).

The majority has based the violation of Article 6 § 1 of the Convention on the ground that the use of the child ’ s videotaped account as essential evidence, without an adequate and timely opportunity to put questions to the child on the basis of sufficient background information, involved such limitations on the rights of the defence that the applicant cannot be said to have received a fair trial (paragraph 51).

In the case of Asch v. Austria , 26 April 1991 , § 26-31, Series A no. 203, only a police officer recounted the facts of the case as the victim had described them to him on the day of the incident. The Court stated that i t would clearly have been preferable if it had been possible to hear the victim in person, but the right on which she relied in order to avoid giving evidence cannot be allowed to block the prosecution . Her statements , as related by an officer , did not constitute the only item of evidence on which the first-instance court based its decision. The Court found that the rights of the defence were not violated.

On the other hand, the Court has held in several cases that a conviction should not be based either solely or to a decisive extent on statements which the defence has not been able to challenge (paragraph 41 of the present judgment).

In the present judgment there is a dichotomy of indirect and direct evidence . This aspect has been discussed in recent cases such as the cases of A.H. v. Finland , no. 46602/99, 10 May 2008; and A.L. v. Finland , no. 23220/04, 27 January 2009. In the case of B. v. Finland (no. 17122/02, 24 April 2007) there was a situation where the children ’ s statements as recorded on videotape constituted virtually the sole evidence on which the courts ’ findings of guilt were based since the witnesses had made no observations on the alleged acts and gave evidence only on the children ’ s reliability . However, in the latter case the applicant and counsel had been afforded an opportunity to have questions put to the children during the pre-trial investigation in 1998 but they did not avail themselves of that possibility.

In the present case the complaint is based on two aspects: Firstly, that the applicant had not been afforded an opportunity to put questions to E . while she was examined at the hospital or at any later stage of the proceedings . S econdly, that the applicant had not been given access to E ’ s examination material at a stage where it would have been of proper use for his defence.

Starting with the latter question I find that, although the facts of the case are stated correctly, t here is a certain vagueness in respect of the use of terms “ examination report ”, “examination material”, “ medical report”, “medical file ” and “patient record”. The applicant had at his disposal the expert statements of Drs S . and H . from the University H ospital from the very beginning of the pre-trial investigation. Also the four video recordings, which were to be important for the outcome of the case, were shown to him at an early sta g e of the pre-trial investigation. He did not, however, have access to E . ’ s whole medical file ear lier than three months before the main proceedi ngs at the District Court began.

In this respect it is crucial to bear in mind the applicant ’ s triple role as the father and guardian of E . but also as the suspect and later accused. Article 6 guarantees his rights as a suspect and an accused and in this relation E . is the vi ctim. I do not see that Article 6 would give an accused , and even less a person who is merely suspected of an offence, unlimited access to the victim ’ s medical file taking into account the victim ’ s right to private life .

The majority ’ s reasoning seems to suggest that the medical file should have been given to the applicant before he was charged with the offence – or even before the pre-trial investigation was opened [1] , this implying that a person suspected of a sexual offence should have access to the victim ’ s medical file regardless of whether charges are ultimately brought. If this is the majority ’ s view, I must express my disagreement. All in all, I cannot agree that the lack of early access to E . ’ s whole medical file would play a role when assessing the applicant ’ s defence rights as a whole . This is so in particular in view of the fact that the applicant had access to the whole medical file some three months before the main hearing and thereby he had sufficient time to prepare any arguments he wished to raise on the basis of that file.

A more difficult aspect of the case is how the questioning of E . was conducted.

In the case A.H. v. Finland (cited above) the Court accepted that the applicant A.H. could not have obtained the child ’ s appearance in person before the courts . In the present case it is also clear that there were no possibilities of hearing E . before a court taking into account her young age and the time that had elapsed . However, t his answer does not, as such , cov er the pre-trial investigation.

It is undisputed that the applicant has not been able to put questions to E . directly or through experts. It is not, however, clear in what manner and when he stated that he wished to do so.

In the present judgment (para graph 47) it is stated that the applicant did not request that E . be heard by the police or before the trial courts but this is found understandable for several reasons. One of the reasons is that the pre-trial investigation had not even begun before E. started receiving therapy. However, her therapy started in January 2001 and the pre-trial investigation in the middle of February 2001.

It is of course difficult to say after wards whether an opportunity to question E . could have been arranged during the spring of 2001 as such a request was never made. On the other hand, there does not seem to be any reason why the applicant, who was assisted by a lawyer, should not have made such a request. His repeated requests concerning access to the medical file show that he was able to act actively in the proceedings instead of passively waiting for the authorities to instruct him what to do.

Furthermore, I am unable to see that the lack of access to E . ’ s whole medical file still in spring 2001 could have prevented the applicant from formulating questions he wanted to be examined in more detail. After all, he had at his disposal the expert statements and video recordings, and the victim and her mother were his family members. The applicant ’ s background information cannot be seen as insufficient for formulating questions to be discussed with E. in a manner suitable for a child not yet four years old.

This case raises the question as to how far the obligations of Article 6 reach . Should the doctors of the University H ospital , later expert witnesses, really have understood that it was their duty “to facilitate the applicant ’ s attempts to build a proper defence” (paragraph 48 of the present judgment) ? Or should they have postponed the therapy for a couple of months? I would be reluctant to take these steps. The role of the doctors examining E . was not to take stand on the question of guilt, all the more since otherwise there would have been strong reasons for the applicant to criticiz e their neutrality towards him.

In my view, the majority ’ s judgment too lightly appears to impose on doctors such obligations that do not normally and naturally belong to their role. It is on this important point that the judgment also takes a new, problematic step as compared to the other Finnish cases, in which the finding of a violation has been based on actions or omissions by authorities in charge of pre-trial investigation or by judicial authorities.

For me the question remains whether the police should, during the pre-trial investigation in the beginning of 2001 , have clearly asked the applicant and his counsel about their view on questioning E. Ideally they should , as the Court of Appeal unequivocally state d. The police should have acted actively in this regard, although I cannot leave without mentioning anew that at the same time the applicant acted very actively in order to obtain E . ’ s medical file.

When balancing the aforementioned deficiency in the proceedings as a whole I find that this case falls between the cases of A.L. v. Finland and A.H. v. Finland (violation of Article 6) and B. v. Finland , where no violation of Article 6 was found (all cited above).

Firstly, the applicant did not avail himself of the opportunity to ask for supplementary questions to be put to E. at a time when this would still have been possible, that is in early 2001. In this context I must repeat that I do not accept that, at earlier stages, it was incumbent on the doctors of the University Hospital “to facilitate the applicant ’ s attempts to build a proper defence”.

Secondly, the Court of Appeal was aware of the requirement to treat indirect evidence very cautiously. T hree doctors , who had personally met E . , testified about her behaviour and the applicant could cross-examine them . A team leading doctor at the University Hospital was also heard. The applicant had also an expert witness, children ’ s and youth psychiatrist, evaluating the examination methods and the results drawn.

The proceedings were not perfect. E . ’ s statements were not, however, the only evidence. In the circumstances of the case, t he fact that the applicant had not actively been offered an opportunity to have questions put to E . does not , in my view, restrict the rights of the defence to the extent that the applicant would have been deprived of a fair trial , taking into account the proceedings as a whole. Consequently, there has been no breach of Article 6 § 1.

[1] The reasoning in para. 46 seems to contain criticism of the fact that by the time of the feedback discussion of 14 September 200 0 (see para s . 8 and 23), that is before the beginning of the pre-trial investigation, the applicant did not have full access to E.’s medical report s / medical file.