AS TO THE ADMISSIBILITY OF
Application no. 60966/00
The European Court of Human Rights (Fourth Section), sitting on 4 April 2006 as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr J. Casadevall,
Mr M. Pellonpää,
Mr S. Pavlovschi,
Mr L. Garlicki,
Ms L. Mijović,
Mr J. Šikuta, judges,
and Mrs F. Elens-Passos, Deputy Section Registrar,
Having regard to the above application lodged on 21 June 1999,
Having regard to the partial decision of 16 March 2004,
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 applicant, Mr E.H., is a Finnish national, who was born in 1954. He was represented before the Court by Mr Sami Heikinheimo, a lawyer practising in Helsinki. The respondent Government were 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, may be summarised as follows.
On 27 August 1996 the applicant was charged with four counts of aggravated sexual abuse of a minor under Chapter 20, section 6 of the Penal Code (rikoslaki, strafflagen; 39/1889) and with four counts of indecent behaviour towards a child under Chapter 20, section 3, subsection 3 of the Penal Code. According to the indictment the offences against a 12-year old boy, J., took place from May 1995 to September 1995, including, inter alia, touching of genitals and buttocks, masturbating and ejaculating on J.’s abdomen and face and anal penetrations.
J. had alleged that he was raped and abused twice by the applicant during a class excursion (on 24 May and from 26 to 29 May 1995), which the applicant was supervising together with some other parents. Subsequently J. withdrew his allegations, and at that time there was no contact with the police or medical examination. J. however renewed his allegations later and was interviewed at a child welfare clinic. J.’s parents reported an offence to the police in October 1995. The police also investigated, inter alia, two alleged rapes and other indecent conduct which occurred after a class excursion in June - August 1995.
Apparently J. met psychologist K. of a child welfare clinic twelve times. No video or audio recordings were made during the interviews. Instead, K. made written notes. On the basis of the interviews, K. and a social worker T. signed a report on 12 February 1996.
Criminal proceedings against the applicant were instituted before the District Court (käräjäoikeus, tingsrätten) of Helsinki which heard the case together with J.’s compensation claim of 15,000 Finnish marks (FIM, amounting to 2,523 euros (EUR)) for pain and suffering and FIM 70,000 (EUR 11,773) for mental suffering, made under Chapter 5, section 1 of the Tort Liability Act (vahingonkorvauslaki, skadeståndslag; 412/1974) which was joined to the trial in accordance with Chapter 14, section 8 of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken; 4/1734), as in force until 1 October 1997.
The report of the child welfare clinic of 12 February 1996 was admitted as written evidence at the District Court. The notes written by K. during the interviews were not presented to the prosecutor or the court and thus were not included in the court file.
On 16 September 1996 the victim J., then 13 years old, was heard in person as a witness for the prosecution regarding each count before the District Court. The District Court rejected the request made by J.’s counsel that the applicant be ordered to leave the court room during J.’s testimony. J. was first questioned by his counsel and then by the counsel of the applicant. During questioning by the latter, J., became very agitated and nervous and left the court room. The hearing was suspended. Later J. returned and his questioning by the applicant’s counsel continued. The District Court then heard the applicant, 17 witnesses and expert witnesses, including his psychologist K., as well as two psychiatrists, S. and P. who had treated him. K. testified in court that she had treated J. in therapy for about six months starting in autumn 1995 and that the written report of 12 February 1996 confirming J.’s allegations, was based on her observations during this therapy. Various witnesses stated that they had heard J.’s allegations. There was no direct witness evidence of the alleged rapes besides J.’s own statement. According to the decision of the District Court the only piece of corroborating direct evidence was a witness statement of one of J.’s classmates, who testified having seen the applicant touch J.’s thighs and move his hand towards J.’s groin and caress his genital area. There was also telephone metering information indicating that the applicant had made six phone calls to J. between August – October 1995. The District Court also had regard to some circumstantial evidence concerning the applicant’s conduct and relations to J.
No physical/somatic medical examination had been conducted on J. at any stage. No video or audio recording of J.’s interviews by his psychologist or of his police examinations had been made.
On 7 March 1997, the District Court convicted the applicant on all counts. It did not, however, consider the sexual abuse of a minor to be aggravated. It sentenced the applicant to two years and three months’ imprisonment and ordered him to pay J. FIM 5,000 (EUR 841) for physical pain and FIM 55,000 (EUR 9,250) by way of compensation for mental suffering.
The applicant, the public prosecutor and J. appealed to the Court of Appeal (hovioikeus, hovrätten) of Helsinki. The applicant requested the quashing of the District Court’s judgment or alternatively a retrial by the District Court, or an oral hearing before the Court of Appeal. The applicant submitted further observations dated 18 June 1997 and 23 July 1997, together with a medical doctor’s opinion.
The applicant had meanwhile requested a copy of the notes written by psychologist K., which formed the basis for the child welfare clinic’s report of 12 February 1996. The request was rejected on 26 June 1997 by the Social Welfare Board of Helsinki (sosiaali- ja terveyslautakunta, social- och hälsovårdsnämnden). The applicant appealed to the County Administrative Court (lääninoikeus, länsrätten) of Helsinki, which quashed the Social Welfare Board’s decision on 14 January 1998 and maintained that the applicant had the right to receive information about the notes.
The Court of Appeal held an oral hearing from 10 to 13 February 1998. J. was not heard in the proceedings due to his mental health problems. A medical doctor, who had previously submitted a medical report dated 17 December 1997, was heard. He submitted that testifying would endanger J.’s health. 29 witnesses and expert witnesses were heard before the appellate court. Apparently the applicant requested the appellate court to make K.’s notes available to him, but his request was rejected. The applicant contested the Government’s argument that it was agreed between the parties and the court that the applicant might invoke the notes made by K. if he found that they contained some additional information which had not yet been presented in the court. It was the applicant’s view that the prosecutor requested K. to review her notes and to comment if they contained information which had not been presented before the court.
The applicant asserted that the Court of Appeal had, during a preparatory hearing, requested the prosecutor to produce K.’s notes following the applicant’s request but did not act on the matter later when the prosecutor had not produced the notes at the main hearing. According to the applicant, he requested the court to order production of the information during that hearing and informed them that the County Administrative Court had on 14 January 1998 decided that he had the right to receive copies of the said notes. According to the applicant, the Court of Appeal did not issue any order for the production of the notes to the court.
On 30 June 1998 the Court of Appeal issued its judgment. By two votes to one, the court reduced the applicant’s sentence to one year and six months’ imprisonment, rejecting one count of sexual abuse of a minor and one count of indecent behaviour towards a child. It did not find it established that the applicant had had intercourse with J. Instead, it found the applicant guilty of the remaining three counts of sexual abuse of a minor based on other kinds of sexual acts which were comparable with intercourse. The Court of Appeal ordered the applicant to pay J. FIM 55,000 (EUR 9,250) in compensation for his mental suffering. As to the evidence, the court ruled, inter alia, that
“the evidence presented supported J.’s statement that the applicant had sexually abused him. However, the details of J.’s statement include some inconsistencies and thus his statement cannot in itself be the basis of finding of guilty.“
The applicant sought leave to appeal from the Supreme Court (korkein oikeus, högsta domstolen) on 30 August 1998 requesting the quashing of the Court of Appeal’s judgment. He claimed, inter alia, that he had not had access to material information, namely psychologist K.’s notes of her therapy sessions with J. and that the Court of Appeal had not made a separate decision regarding his request for access to these notes despite his express request. He also complained that he had not had a chance to examine J. before the Court of Appeal and that he had not had a proper chance to examine J. before the District Court as the presiding judge had allegedly allowed J. to leave the witness stand in the middle of the defence’s examination as soon as it became evident that the examination would reveal the untruthfulness of J.’s claims. Nor had the applicant had a chance to put questions to J. during the pre-trial investigation. The applicant also criticised the fact that J.’s interviews or examinations had not been recorded and that he had been convicted purely on hearsay and circumstantial evidence. He also claimed that the Court of Appeal had convicted him of essentially different acts from those described in the indictment. The applicant invoked Article 6 of the Convention and requested an oral hearing before the Supreme Court and that a new witness be heard.
Meanwhile, the Social Welfare Board of Helsinki had appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) about the disclosure of the notes written by K. On 28 October 1998 the Supreme Administrative Court upheld the County Administrative Court’s decision. The applicant subsequently received the notes.
The Supreme Court refused the applicant leave to appeal on 22 December 1998. The applicant unsuccessfully applied for annulment of the Supreme Court’s decision on 31 March 1999 relying on new evidence, which did not include K.’s notes. Apparently the Supreme Court rejected his application.
B. Relevant domestic law and practice
Chapter 14, section 4 of the Code of Judicial Procedure (4/1734, as in force at the relevant time and until 1 October 1997) provided that the court had to guarantee an orderly trial and ensure that the case was examined thoroughly. It had been previously generally accepted that the courts bore some inquisitorial responsibility for establishing material facts in criminal cases, although later it had been established in the Supreme Court’s case law that the courts did not have a responsibility for approving indictments (see Government Bill 82/1995 p. 83 and 146 and the Supreme Court judgment 1995:44).
The Code on Criminal Procedure (laki oikeudenkäynnistä rikosasioissa, lag om rättegång i brottmål; 689/1997) entered into force on 1 October 1997. The new procedure is mainly adversarial in its nature and the courts’ role is more passive in matters of obtaining and presenting evidence.
The provisions of the former procedure were applied even after the entry into force of the Code on Criminal Procedure, if the criminal case had become pending before 1 October 1997, as in this case.
According to Chapter 17, section 33, subsection 1 of the Code of Judicial Procedure (as in force at the relevant time) the presiding judge examined witnesses. The court could, however, when appropriate, decide that the parties could question the witnesses. In the latter case the party who had requested the witness examined the witness first, followed by the other party. Subsection 2 of the same section provided that a witness should be encouraged to give an undirected narrative. The presiding judge, and the parties, could put questions after the end of the witness’s own account.
Section 7 of the Criminal Investigations Act (esitutkintalaki, förundersökningslag; 449/1987) provides that facts and evidence both against the suspect as well as those in favour of the suspect have to be taken into account and examined in a pre-trial investigation. The suspect must be treated as innocent in a pre-trial investigation.
Section 11 of the said Act provides that a party in a pre-trial investigation has the right to be informed of the results of the investigation as soon as there is no risk of jeopardizing the criminal investigation.
A new section 39a was added to the said Act with the effect of 1 January 2004 (645/2003). Under this new provision the questioning of a victim or a witness must be recorded on a video tape or by using other comparable audio-visual means if his/her statement is to be used as evidence in court proceedings and if it is not possible to hear that victim or witness in person due to his/her age or mental disturbance.
Section 19 of the Act on the Publicity of Official Documents (laki yleisten asiakirjojen julkisuudesta, lag om allmänna handlingars offentlighet; 83/1951, as in force at the relevant time) provided that even if a document was not public, an applicant, appellant or other person whose interest, right or obligation the matter concerns (a party) had an access to the document if it might have influenced the consideration of the case. Access could be withheld if informing the party about the document would have been contrary to an especially important public or private interest and if the document was not part of the file in a civil or criminal case.
Section 57 of the Social Welfare Act (sosiaalihuoltolaki, socialvårdslag, 710/1982) provides that persons employed by the State or municipalities, other persons performing central or local government functions or working in their units and experts used in the organisation of social welfare shall not disclose any personal or family secret they have learnt by virtue of their position or function without the consent of the person concerned.
The guide n:o 23 of the National Research and Development Centre for Welfare and Health (Sosiaali- ja terveysalan tutkimus- ja kehittämiskeskus, Forsknings- och utvecklingscentralen för social- och hölsovården, STAKES) includes guidelines on the questioning of a minor. According to the guide it is necessary to make a recording on tape or video of an interview involving a child. The child should be asked for permission to make the recording.
The applicant complained under Article 6 of the Convention that he could not prepare his defence properly as he did not have access to the psychologist K.’s notes (which would have been necessary in order to assess how J.’s statements originated and to cast doubt upon J.’s and K.’s statements) and that he did not have the opportunity to examine J. as he had left the court room in the middle of the defence’s examination in the District Court and the presiding judge had not allowed further questions.
He further complained that the pre-trial investigation had not been conducted properly as facts favourable to him were not investigated and alleged that the police and the psychologist K. colluded during the criminal investigation, invoking Article 6 § 2 in that respect.
A. Alleged violation of Articles 6 § 1 and 6 § 3 (b) and (d)
The applicant complained under Article 6 of the Convention that he was hindered in preparing his defence due to the lack of access to the notes of the psychiatrist K. and that he had no proper opportunity to have J. cross-examined. Article 6, insofar as relevant, reads as follows:
“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ...
3. Everyone charged with a criminal offence has the following minimum rights:
(b) to have adequate time and facilities for the preparation of his defence;
(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”.
1. The parties’ submissions
The Government submitted that the notes by the psychologist K. were not presented as evidence, nor were they in the possession of the courts examining the case and therefore, did not constitute a part of the case file. Accordingly, they considered the allegation that the applicant was placed at a disadvantage vis-à-vis the other parties of the proceedings in this respect erroneous.
In the Government’s view there were no reasonable grounds to present the notes by K. as evidence in court. Indeed, when addressing the court, she had not expressed a different opinion from that set out in the report dated 12 February 1996. If K. had reversed her statement during the proceedings in the District Court or the Court of Appeal, the notes could have become relevant in assessing the reliability of her testimony.
The Government further pointed out that the applicant’s access to the notes was at first restricted by the local Social Welfare Board by virtue of Section 57 of the Social Welfare Act, as they contained matters which could be qualified as personal or family secrets. The Government recalled that after being granted access to the notes, the applicant did not, however, invoke them in his application of 31 March 1999 for annulment of the Supreme Court’s decision, where he relied on new evidence. Moreover, the Government noted that the applicant had not claimed that his conviction was based on evidence that was contained in the notes by K.
As to the lack of video or audio recordings of J.’s previous interviews, the Government noted that K. was heard as a witness before the District Court and the Court of Appeal. The applicant was provided with a proper opportunity to question her about J.’s conduct during the interviews and all other issues related to them.
As to the applicant’s right to examine J. as a witness, the Government submitted that J. appeared in person before the District Court, and that the applicant had an opportunity to put questions to him and observe his conduct during the questioning. Though J. left the courtroom in the course of his testimony, he returned after a while and the hearing could be completed. The Government pointed out that the applicant was not debarred from putting any questions to J. They further submitted that during the pre-trial investigations the applicant did not express any wish to question J. either directly or indirectly.
In the Government’s view, the proceedings in question met the requirement of an adversarial process and the applicant was given an adequate and proper opportunity to challenge and question J. when he was giving evidence during the District Court proceedings. The fact that J. did not appear before the Court of Appeal could not, in the Government’s view, be decisive when assessing the fairness of the trial in its entirety.
The Government finally considered that the District Court and the Court of Appeal assessed the value of the evidence carefully. They took into account J.’s statements given in the child welfare clinic, in the pre-trial investigation and in the District Court. In addition, the District Court had a possibility to directly observe the conduct of J. during his questioning. The Court of Appeal also assessed the examination of J. by K. It expressly stated that “the examination and the examination methods can be validly criticised” and considered the case in light of that.
The applicant submitted that the notes of K. should have been disclosed to him as he assumed that the material would have provided supporting proof of his innocence. As the Court of Appeal found him guilty the notes of K. and other material of the social welfare officials would have been of vital importance for him. The Administrative Court had reviewed the said material and ruled that it related to the criminal proceedings and might have an influence on the outcome of the case. Therefore the Administrative Court obliged the social authorities to disclose the material to the applicant.
The applicant maintained that the fact that J.’s interview by K. was not recorded violated his legal safeguards. It could not be compensated for by the appearance of the interviewer in the court proceedings and his/her cross-examination. The applicant further stated that all documentation available in the court proceedings supported J.’s statements, and none of the interviewers had questioned his credibility. Even though the Court of Appeal stated that the examination and the examination methods could be validly criticised, it concluded that J. had been abused.
The applicant finally submitted that he did not have an adequate and proper opportunity to challenge and question J.’s testimony against him. J. was heard in the District Court as a prosecution witness and his questioning was not completed in a normal manner. He alleged that J.’s testimony consisted mostly of answers to the prosecution’s questions. Having asked questions of a general nature, the applicant’s counsel began to ask about the alleged abuse. This was when J. left the courtroom in a state of agitation. When he returned, the presiding judge advised the applicant’s counsel not to provoke him. It was the applicant’s contention that no questions were allowed about the alleged incidents in the class excursion. The applicant claimed that if his counsel was not allowed to ask critical questions or questions testing the witness’s reliability, the hearing did not fulfil the legal requirements. He underlined that J.’s statement before the District Court was virtually the sole evidence on which the courts’ findings of guilt were based. The rest of the oral evidence was indirect as none of the other witnesses had seen the alleged acts.
2. The Court’s assessment
i. The Court recalls that when determining whether Article 6 of the Convention has been complied with, it must take into account the proceedings as a whole. Furthermore, it recalls that the guarantees in Article 6 § 3 are specific aspects of the right to a fair trial set forth in general in Article 6 § 1 (see, inter alia, Foucher v. France, judgment of 18 March 1997, Reports of Judgments and Decisions 1997-II, p. 464, § 30). Therefore, the Court finds that the applicant’s complaints should be examined under the two provisions taken together. It will therefore confine its examination to the question whether the proceedings in their entirety were fair.
It is a fundamental aspect of the right to a fair trial that criminal proceedings, including the elements of such proceedings which relate to procedure, should be adversarial and that there should be equality of arms between the prosecution and defence. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party (see e.g. Brandstetter v. Austria, judgment of 28 August 1991, Series A no. 211, p. 27-28, §§ 66-67). In addition Article 6 § 1 requires that the prosecution authorities disclose to the defence all material evidence in their possession for or against the accused (see Rowe and Davis v. the United Kingdom [GC], no. 28901/95, § 60, ECHR 2000-II).
The Court further reiterates that the admissibility of evidence is primarily governed by the rules of domestic law, and that, as a rule, it is for the national courts to assess the evidence before them. The task of the Court is to ascertain whether the proceedings in their entirety, including the way in which evidence was taken, were fair (see e.g. Asch v. Austria, judgment of 26 April 1991, Series A no. 203, p. 10, § 26, Van Kück v. Germany, no. 35968/97, § 47, ECHR 2003-VII).
All the evidence must normally be produced at a public hearing, in the presence of the accused, with a view to adversarial argument. There are exceptions to this principle, but they must not infringe the rights of the defence. As a general rule, the accused must be given an adequate and proper opportunity to challenge and question a witness against him, either when he makes his statement or at a later stage (see the Van Mechelen and Others v. the Netherlands, judgment of 23 April 1997, Reports of Judgments and Decisions 1997-III, p. 711, § 51).
As to the present case, the applicant complained that he could not prepare his defence properly as he did not have access to the psychologist K.’s notes. The Court finds it undisputed that these notes were not disclosed to the applicant during the criminal proceedings against him, even though he had requested that they be disclosed at various times during the proceedings. The Court also takes note of the County Administrative Court’s decision by which it allowed the applicant to receive information about the notes. However, it is clear from the case-file that neither the prosecutor nor the domestic court had K.’s notes at their disposal. Thus they did not form part of the court file and thus were not used as evidence against the applicant. It follows that there is no indication that the non-disclosure of the K.’s notes infringed the applicant’s right to adversarial proceedings and deprived him of a fair trial. Furthermore, the Court finds it undisputed that the applicant had access to the psychologist’s report of 12 February 1996, which was written on the basis of her notes and used as evidence against the applicant. K. was also heard in the oral hearings before the District Court and the Court of Appeal and the applicant was given a full opportunity to examine her.
ii. Turning to the other alleged violation of Article 6, namely the applicant’s inability to examine J. properly, the Court considers that this centres on the allegation that J. left the court in the middle of the defence’s examination of him in the District Court. The Court recalls that where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or have examined, whether during the investigation or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Article 6 (see Van Mechelen and Others judgment, cited above, p. 712, § 55).
The Court observes that in the present case the statements made by J. were the decisive evidence on which the courts’ findings were based as the other witnesses heard by the courts had not seen the alleged acts and gave evidence only on perceived changes in J.’s personality or on what he had said after the alleged incidents. It must therefore be examined whether the applicant was provided with an adequate opportunity to exercise his defence rights within the meaning of Article 6 of the Convention in respect of the evidence given by J. (see, mutatis mutandis, S.N. v. Sweden, no. 34209/96, § 46, ECHR 2002-V).
The Court had had 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. 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 perceived 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 S.N. v. Sweden, cited above, § 47).
In the present case, the Court finds that it was not disputed between the parties that J. was heard by the District Court and that the applicant’s counsel had the right to question him as well. The applicant was however of the opinion that his questioning did not satisfy the guarantees of a fair trial as J. left the court room in the middle of his counsel’s questioning and that even though he later returned his counsel was not allowed to ask any questions about the alleged incidents in the class excursion. The Government contested this view and argued that when J.’s examination the applicant’s counsel was not debarred from putting any questions to him. The Court has been provided with the minutes of the District Court of 16 September 1996, according to which the applicant’s counsel put several questions to J. before he left the court room. Later J. returned and there is no indication that he was hindered in his questioning of him.
As to the fact that J. was not heard before the Court of Appeal, the Court reiterates that evidence obtained from a witness under conditions in which the rights of the defence cannot be secured to the extent normally required by the Convention should be treated with extreme care (see Doorson, Doorson v. the Netherlands, judgment of 26 March 1996, Reports of Judgments and Decisions 1996-II, p. 472, § 76). The Court takes note of the judgment of the Court of Appeal, in which it noted that the witnesses’ statements supported J.’s own statement but that as his testimony included some inconsistencies, the conviction could not solely be based on his evidence. In these circumstances the Court is satisfied that the necessary care was applied in the evaluation of J.’s statements.
Having regard to the foregoing, the Court considers that the criminal proceedings against the applicant, taken as a whole, cannot be regarded as unfair. Accordingly, there is no indication of any violation of Article 6 §§ 1, 3 (b) and (d) of the Convention.
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
B. Alleged violation of Article 6 § 2
The applicant also complained under Article 6 § 2 about an alleged failure to comply with the presumption of innocence during the pre-trial investigation. Article 6 § 2 reads as follows:
“ Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
The Court observes that it does not appear from the material submitted that the applicant had exhausted domestic remedies as required by Article 35 § 1 of the Convention by raising this complaint in his submissions to the domestic courts. In any event, referring to its findings above in relation to the applicant’s complaint under Article 6 §§ 1 and 3(d) of the Convention, the Court does not consider that the circumstances invoked by him under Article 6 § 2 disclose any appearance of violation of this provision. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Françoise Elens-passos Nicolas Bratza
Deputy Registrar President
E.H. v. FINLAND DECISION
E.H. v. FINLAND DECISION