CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 17 janvier 2006

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Casadevall ,   Mr   M. Pellonpää ,   Mr   R. Maruste ,   Mr   K. Traja ,   Ms   L. Mijović ,   Mr   J. Šikuta, judges , and Mr M. O’Boyle, Section Registrar, Having regard to the above application lodged on 15 March 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 1942. He is represented before the Court by Mr Jonni Mäkinen, a lawyer practising in   Lahti. 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 On 7 August 2000 a mother contacted the police on account of a suspicion that her children, a girl born in 1991 and a boy born in 1993, had been sexually abused by a neighbour, the applicant. On 10 August and 2   September 2000 the siblings were interviewed by a police officer experienced in investigating sexual abuse of children. The applicant was also suspected of having abused two other girls, both friends of the siblings and born in 1991. The girls were interviewed by the police on 11 August and 18 August respectively and again on 3 September 2000. All the interviews were recorded on video tape. At the time of the first interviews, i.e. on the morning of 10 August 2000, the applicant had not been informed of the suspicions against him and no defence counsel had been appointed for him. Neither the applicant nor his counsel was present during the later interviews either. The siblings and one of the other girls underwent a psychological examination with a view to assessing whether their testimonies during the pre-trial investigation were reliable. Meanwhile, on the afternoon of 10 August 2000 the applicant was questioned by the police. Before the questioning he was notified of the suspicions against him and it appears that he did not exercise his right to have his counsel present. The applicant was in detention from that day until 7 September 2000 when travel restrictions were imposed on him. He was accompanied by counsel when questioned again on 17, 18, 19 and 23   August and 6 September 2000. He was questioned alone on 12   January   2001. Prior to the closing of the pre-trial investigation, the applicant requested, on 7 December 2000, that the siblings be questioned again and that his questions be put to them, but his request was refused. According to the Government, this was because their mother had refused to allow any further questioning of the children. District Court The applicant was charged before the District Court ( käräjäoikeus, tingsrätten ) of Lahti with having sexually abused the four children during the summer of 2000. He denied the charges. In February 2001 the District Court held an oral hearing during which the applicant, the parents of the siblings and the mothers of the other two girls gave oral evidence. The children were not heard in person. The video taped interviews with the children were shown during the hearing. The District Court also heard evidence from a psychologist as to the reliability of the statements of the siblings and one of the other girls. The applicant did not request that the children give evidence in the hearing. In its judgment of 28 February 2001 the District Court observed that the applicant had argued that the main evidence in the case was flawed, inter alia , due to the fact that he had not been afforded an opportunity to put questions to the children. The court further noted that the oral evidence was of an indirect nature and that the case turned on an assessment of the credibility of the children’s statements. The sole direct evidence was the testimony of a psychologist, who testified as to the assessment of the children’s credibility. The court considered that the pre-trial stage statements’ value as evidence was weakened by the fact that the applicant had not been able to put questions to the children. It however found that the statements were reliable as the children’s young age gave no reason to believe that they would have sought to lie about the events. This being so, the District Court found that questioning the children before the court would not have added anything significant to the case. Having regard to their best interests, the questioning of such young children before a court could not be considered as justifiable. The court found that the testimonies of the psychiatrist and the parents supported the children’s credibility. The District Court convicted the applicant of having sexually abused the four children and sentenced him to two years and 3 months’ imprisonment. Court of Appeal The applicant appealed. The Kouvola Court of Appeal ( hovioikeus, hovrätten ) held an oral hearing and was presented with the same evidence as had been presented before the District Court. The parties agreed that it was in the best interests of the children that they not be heard before the court. The applicant however rejected the children’s pre-trial statements as evidence due to the fact that he had not been afforded an opportunity to put questions to them. In its judgment of 6 November 2001 the Court of Appeal noted that as the questioning of the children, now aged 8 to 10 years, before the court would probably cause them suffering, it was possible to use as evidence their statements at the pre-trial stage, although the applicant’s minimum rights under, inter alia , Article 6 § 3 (d) of the Convention had been violated in that he had not been afforded an opportunity to examine the witnesses against him. In its assessment of the evidence the Court of Appeal reached the same conclusions as the lower court and it upheld the conviction. It however reduced the sentence to one year and 8 months’ imprisonment, which it considered to be fair, having regard to the fact that the applicant had not forced the children into doing anything, the relevant sentencing practice and the fact that the applicant had no previous convictions. Supreme Court The applicant requested leave to appeal, maintaining, inter alia , that there had been a breach of Article 6   §   3 (d) of the Convention. He requested that the charges be rejected. He did not submit any request to the effect that the children be heard. On 28 February 2002 the Supreme Court ( korkein oikeus, högsta domstolen ) refused 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). The 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 showed 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 is 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. COMPLAINTS The applicant complained, under Article 6 §§ 1 and 3 (d) of the Convention, that he was denied a fair hearing in that he was not afforded an opportunity to put questions to the witnesses against him, i.e. the children, and in that the police officer conducting the pre-trial investigation put leading questions to two of the children, which affected their opinion of what had taken place. 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, i.e. the child complainants, 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 in the District Court. In the Court of Appeal he had even agreed that it was in their best interests that they not appear in court. Neither did he request that they be heard before the Supreme Court. He could therefore be considered to have waived that idea. The Government submitted that 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 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. The tapes had been shown during the court proceedings, enabling the courts to establish how the children had behaved when giving their statements. In this way the applicant had been able to examine the evidence against him and make comments. The Government considered that the courts had paid express attention to the assessment of the credibility of the children’s statements and to the fact that the applicant had not been given an opportunity to put questions to them. The Court of Appeal even reduced the applicant’s sentence on this ground. As the parents of the siblings, the mother of the two other girls and a psychologist testified about the conduct of the children and as to whether they were reliable, the video recordings were not the only evidence in the case. Also the applicant’s own account of the events contributed to his conviction. The applicant maintained that prior to the closing of the pre-trial investigation he had unsuccessfully requested that the siblings be questioned again and that his questions be put to them. He contested the Government’s allegation about his having waived his right to examine the witnesses against him. As it was clear from the outset that a Finnish court would never have children under the age of ten appear in court, the applicant’s request to that effect could not have succeeded. The applicant made reference to S.N.   v. Sweden (no. 34209/96, ECHR 2002 ‑ V). The applicant contested the Government’s allegation that his own account of the events contributed to his conviction. The applicant considered that his case bore certain similarities to S.N. v. Sweden (cited above) among other things in the sense that children under the age of ten were not heard before Swedish courts either. In that case the defendant’s counsel had been afforded an opportunity to have questions put to the child in question during the investigation. In the present case, no such opportunity was given. 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’B oyle   Nicolas B ratza   Registrar   President