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FOURTH
SECTION
CASE OF
W v. FINLAND
(Application
no. 14151/02)
JUDGMENT
STRASBOURG
24
April 2007
FINAL
24/07/2007
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 W v. Finland,
The
European Court of Human Rights (Fourth Section), sitting 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 T.L. Early, Section Registrar,
Having
deliberated in private on 27 March 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 14151/02) 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 15 March 2002. 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 was represented by Mr J. Mäkinen, a lawyer practising
in Lahti. The Finnish Government (“the Government”) were
represented by their Agent, Mr A. Kosonen of the Ministry for Foreign
Affairs.
- The
applicant alleged that the rights of the defence in respect of
witnesses, i.e. the child complainants, had not been
respected.
- By
a decision of 17 January 2006, the Court declared the application
admissible. Judge Pellonpää, who at the time of the
decision sat in respect of Finland, continued to participate in the
examination of the case (Article 23 § 7 of the Convention).
- The
Government, but not the applicant, filed further written observations
(Rule 59 § 1). The Chamber decided, after consulting the
parties, that no hearing on the merits was required (Rule 59 § 3
in fine).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The 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
videotape.
- 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 yet been appointed
for him. Neither the applicant nor his counsel was present during the
later interviews. The siblings and one of the other girls underwent a
psychological examination in the Family Advice Centre 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 close of the pre-trial investigation, in his closing statement
the applicant requested, on 7 December 2000, having watched the
above-mentioned video recordings, that the siblings be questioned
again and that his questions be put to them about how and where they
had learnt about the sexual things they had mentioned to him and, in
particular, if they had been subjected to sexual acts at a place
other than the applicant's home. His request was however refused on
21 January 2001. According to the Government, this was because their
mother had refused to allow any further questioning of the children,
now aged 7 and 9.
B. The Lahti District Court
- The
applicant was charged before the District Court (käräjäoikeus,
tingsrätten) with having sexually abused the four children
during the summer of 2000. He denied the charges. He however admitted
having tapped two of the girls on their buttocks.
- 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 evidence. The children were not heard in person.
The videotaped interviews with the children were shown during the
hearing. The court also heard evidence from a psychologist on the
reliability of the statements of the siblings and of one of the other
girls. The applicant did not request that the children give evidence
at the hearing.
- The
mother of the siblings testified that they had told her about the
improper touching in the same manner as they had done on the
videotape. When the touching had become known, on 1 August 2000, her
son had reacted intensely by crying and slamming doors. He had also
suffered from sleeping problems and her daughter had suffered from
headaches. Neither of these ailments had occurred before. According
to two written opinions of the Family Advice Centre, the siblings'
accounts of the events were considered credible given their detailed
and precise nature. There was nothing to suggest that they were the
siblings' own inventions. The mothers of the two other girls
testified that they had told them about the improper touching in the
same manner as they had done on the videotape.
- In
its judgment of 28 February 2001 the District Court observed that the
evidence was mainly of an indirect nature and that the sole direct
evidence was the testimony of a psychologist, who had testified as to
the children's credibility.
- The
court noted that the applicant had argued that the main evidence in
the case was flawed due to the fact that he had not been afforded an
opportunity to put questions to the children and that the authorities
had put leading questions to them. He had also argued that there were
shortcomings insofar as the psychological examinations carried out by
the Family Advice Centre were concerned. The court however found no
such flaws as would significantly have reduced the evidentiary value
of the examinations.
- The
court then stated that the case turned on an assessment of the
credibility of the children's statements. While it was true that the
pre-trial statements' probative value was weakened by the fact that
the applicant had not been able to put questions to the children,
these statements were nonetheless reliable as the children had
provided details about the events and as their young age gave no
reason to believe that they would have sought to lie about the
events. Although some leading questions may have been put to the
children, there was nothing to suggest that they would have sought to
please the interviewer and adapted their replies accordingly. This
being so, the court found that questioning the children in court
would not have added anything significant to the case. Having regard
to their best interests, the questioning of children of such a young
age before a court could not be considered justifiable. The court
found that the testimonies of the psychologist and the parents
supported the credibility of the children's accounts.
- It
convicted the applicant of having sexually abused the four children
and sentenced him to two years and three months' imprisonment.
C. The Kouvola Court of Appeal
- The
applicant appealed, alleging inter alia a breach of
Article 6 § 3 (d) of the Convention in that
he had not been afforded an opportunity to put questions to the
children.
- The
Court of Appeal (hovioikeus, hovrätten) held an oral
hearing and was presented with the same evidence as had been before
the District Court. The parties agreed that it was in the best
interests of the children that they should not be heard before the
court. The applicant however rejected the admission of the children's
pre-trial statements as evidence since 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 the
children had been interviewed twice during the pre-trial
investigation and all but one of the girls had been examined in the
Family Advice Centre using tests and interviews. As the questioning
of the children, now aged 8 to 10, before the court would probably
have caused them suffering, it was possible to use in evidence their
pre-trial statements, although the applicant's minimum rights under,
inter alia, Article 6 § 3 (d) of the Convention would
thereby be violated. In evaluating the weight to be attached to the
children's statements, the court found that it had to take into
account the discrepancies pointed out by the applicant and the fact
that the police had not put to the children the questions proposed by
him in his pre-trial closing statement.
- In
its assessment of the evidence the appellate court reached the same
conclusions as the lower court and upheld the conviction. It however
reduced the sentence to one year and eight months' imprisonment,
which it considered 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.
D. The 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 did not submit any request for the children to be
heard.
- On
28 February 2002 the Supreme Court (korkein oikeus, högsta
domstolen) 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), Act
no. 692/1997). 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), Act no. 692/1997). 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, Act no. 692/1997).
- 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
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 such a statement as evidence, if the witness in
question cannot be questioned before the court (chapter 17, Article
11; Act no. 690/1997). 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
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 OF THE CONVENTION
- The
applicant complained, under Article 6 §§ 1 and 3 (d) of the
Convention, that he had been denied a fair hearing in that he had not
been 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 had put leading questions to
two of the children, which affected their opinion of what had taken
place.
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”
A. The parties' submissions
- The
applicant maintained that prior to the close of the pre-trial
investigation he had unsuccessfully requested that the siblings be
questioned again. He contested the Government's allegation that he
had waived his right to examine the witnesses against him. As it had
been clear from the outset that a Finnish court would never have
children under the age of ten appear in court, any request to that
effect would not have succeeded. The applicant made reference to
S.N. v. Sweden (no. 34209/96, ECHR 2002 V), in which
it was noted that children under the age of ten were not heard before
Swedish courts either.
- The
applicant contested the Government's allegation that his own account
of the events had disclosed indications of improper touching.
- The
applicant considered that his case bore certain similarities to S.N.
v. Sweden (cited above) but was different in that the defence
counsel in S.N. v. Sweden had been afforded an opportunity to
have questions put to the child during the investigation whereas in
his case no such opportunity had been given.
- The
Government 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 should
not appear in court. Nor had he requested that they be heard before
the Supreme Court. He could therefore be considered to have waived
his right in this connection.
- 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 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 on it.
- The
Government considered that the courts had paid close 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 had even reduced the
applicant's sentence on this ground. The parents of the siblings, the
mothers of the two other girls and a psychologist had testified about
the conduct of the children and as to whether the children were
reliable. Accordingly, the video recordings were not the only
evidence in the case. Also, the applicant's own account of the
events, such as the improper touching of the children, the relevance
of which he had contested, had nevertheless been relevant to his
conviction.
- In
their observations of 13 March 2006, the Government submitted that
the applicant had not requested that the children be heard again or
that additional questions be put to them during the pre-trial
investigation. He had requested this only in his closing statement of
7 December 2000. That request should have been made earlier.
B. The Court's assessment
- 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).
- 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 complainants in this case should for the purposes of Article 6
§ 3(d) be regarded as “witnesses”, a term to be
given an autonomous interpretation (see Asch v. Austria, cited
above, p. 10, § 25), because their statements, as recorded on
videotape by the police, 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, 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 children. Before the close of the pre-trial
investigation, and having watched the video recordings of the
children's statements, the applicant requested that the siblings be
interviewed again and that his questions be put to them. This request
was however refused. As to the proceedings in the District Court and
the Court of Appeal, it should first be noted that the applicant did
not request the attendance of the children. Before the Court the
applicant stated that he had refrained from requesting that they give
evidence in person during the hearings as, in line with long-standing
practice, any such request would have been refused. In view of the
apparent absence of cases where counsel for the defence has
successfully requested the cross-examination of a child complainant
of a similar age as those in the present case, the Court accepts that
the applicant could not have obtained the appearance of any of the
children in person before the courts.
- The
children's statements as recorded on videotape during the pre-trial
investigation and played back in the District Court and the Court of
Appeal constituted virtually the sole evidence on which the courts'
findings of guilt were based. The witnesses heard by the courts, the
parents, had made no observations on the alleged acts and gave
evidence only in respect of the perceived changes in the children's
personality and on their reliability. The psychologist testified only
about the reliability of the children's statements. In contrast to
the case of S.N. v. Sweden, in the present case the applicant
and his counsel had at no point been afforded an opportunity to have
questions put to the children.
- 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 heading of non-pecuniary damage the applicant claimed 50,000
euros (EUR) for suffering and distress caused by the alleged
violation.
- The
Government considered the claim excessive. Any compensation should
not exceed EUR 2,200.
- The
Court accepts that the lack of the guarantees of Article 6 has 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 reimbursement of his costs before the District
Court and the Court of Appeal in the amount of EUR 5,222.07 and
EUR 1,395.29 respectively. His costs before the Court ran to EUR
6,062.05 (all amounts inclusive of value-added tax).
- The
Government did not consider the claim regarding the costs before the
District Court valid in the sense that the costs did not relate to
the alleged violation but to the entire criminal proceedings against
the applicant. Any award for the costs in the national proceedings
should not exceed EUR 500 and any award concerning the costs
before the Court should not exceed EUR 2,500, both amounts net of
value-added tax.
- The
Court reiterates that an award under this head may be made only
insofar as the costs and expenses were actually and necessarily
incurred in order to avoid, or obtain redress for, the violation
found (see, among other authorities, Hertel v. Switzerland,
judgment of 25 August 1998, Reports 1998-VI, p. 2334, §
63).
Taking
into account all the circumstances, the Court awards EUR 2,000
as regards the costs in the national proceedings and EUR 6,062 for
the costs before the Court (both amounts 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
- Holds by six votes to one that there has been a
violation of Article 6 § 1 of the Convention taken together
with Article 6 § 3 (d) of the Convention;
- Holds unanimously
(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
8,062 (eight thousand and sixty-two euros) in respect of costs and
expenses; and
(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 unanimously the remainder of the
applicant's claim for just satisfaction.
Done in English, and notified in writing on 24 April 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the dissenting opinion of Mr Maruste
is annexed to this judgment.
N.B.
T.L.E.
DISSENTING OPINION OF JUDGE MARUSTE
With
some hesitation I voted against finding a violation because I found
the alleged violation somewhat formal and minimal in nature and
considered that the finding of a violation would cross the border
between the supervisory role of the Court and the prerogative of the
domestic courts in assessing the evidence and in weighing up the
conflicting interests.
The
investigation and adjudication of cases involving sexual abuse of
minor children is always very complicated, sensitive and delicate. In
these matters the international court should be very cautious in
drawing conclusions on formal grounds, not having any direct contact
with the case and with the persons involved. It seems to me that the
domestic authorities did what they were reasonably expected to do in
such a case – they took into account the best interests of the
children, asked for a specialist's opinion about the children's
status and the credibility of their statements and made an analysis
of the applicant's allegation of a violation of his minimum
Convention rights under Article 6 § 3 (d). The courts recognised
the discrepancies pointed out by the applicant and acknowledged that
there had been a certain infringement of the applicant's Convention
rights. The District Court also agreed that the probative value of
the children's statements was weakened but nonetheless found that the
statements were reliable, the various items of evidence corroborated
one another and the infringement was justified. The Court of Appeal
reached the same conclusion as the lower court and reduced the
sentence.
Two
more things have to be pointed out. Firstly, the applicant never
asked or insisted that the witnesses be heard before the court. He
only insisted at the very end of the preliminary investigation stage
that a question be put to the children. Secondly, it falls within the
discretion of the investigating authorities and the courts to decide
whether or not to hear direct evidence from the children and what
questions to put to them. I leave open the question whether the right
to examine witnesses applies to an equal extent during the
investigation and the trial stage and whether the problem, if there
is one, could be remedied at the trial stage. It is clear that in the
case at hand the applicant had the opportunity to ask for the
children to be questioned during the trial stage, but he failed to do
so.
It
has to be believed that the authorities had good grounds under the
circumstances not to subject children younger than 10 years to
unnecessary harm or inconvenience. Our Court has accepted that in
criminal proceedings concerning sexual abuse certain measures may be
taken for the purpose of protecting the victims, provided that such
measures can be reconciled with the basic rights of the defence under
the Convention (see, mutatis mutandis, Baegen v. the
Netherlands, judgment of 27 October 1995, Series A no. 327-B). It
seems to me that this case falls into this category and the measures
taken were proportionate and counterbalanced and did not reach the
level of a substantive violation of the Convention.
