The primary purpose of criminal trials is to establish criminal responsibility (deterrent function). Therefore, in accordance with the principle of expediency, trials must be conducted in a clear, thorough and straightforward manner so as to determine substantive criminal responsibility as reliably, promptly and inexpensively as possible. At the same time, criminal trials must also ensure due process for the individual (due process function) and must not infringe his/her human rights. The aim of a criminal trial in a modern constitutional state is essentially to achieve the proper end result in a way that satisfies the requirement for a fair trial and is ethically acceptable.
Establishing criminal responsibility and ensuring due process for the individual have been considered to be mutually opposing objectives. The issue was mainly expressed as a tension between the interests of the public and the individual as represented by the prosecution and the accused. But these objectives are not necessarily mutually exclusive. Nor can it be in the public interest (crime prevention) to convict the wrong person or to subject a defendant to unfair mandatory measures or punishment. Conversely, the conscientious and fair imposition of punishment (substantive law) also promotes legal protection of the individual.
A child may take part to a criminal trial as a suspect/defendant, an injured party or a witness. The minimum age of criminal responsibility in Finland is 15 years, so children under age 15 do not give evidence as defendants in court in criminal trials. For 15- to 17-year-old defendants, giving evidence in court is not normally considered problematic in Finland. Thus the questioning of child suspects/defendants in criminal trials is not discussed in this paper.
Children can also be the victims of very serious crimes. Questioning of children who are an injured party in criminal trials has been the subject of much attention in the press in Finland recently, and the Supreme Court of Finland handed down a decision in the summer of 2008 which addressed the topic of questioning a child as an injured party. There is also recent case law from the European Court of Human Rights (ECHR) concerning the questioning of children as injured party in criminal trials. Using these cases as a starting point, this paper will concentrate on the questioning of children as injured party in criminal procedure.
In Finland, there is a distinction between an injured party and witness. An injured party cannot be questioned as a witness; instead, the injured party gives a statement in evidence. European Convention on Human Rights and the case law of the ECHR does not make this distinction. Therefore what they say about witnesses’ testimony and statements given in evidence also applies to the hearing of an injured party in the Finnish system.
Because an interested party can usually relate the material events him-/herself and there is usually more evidence in a case besides that in the child witness’s testimony, it is not generally necessary to hear a child at trial. As it is possible to avoid hearing children as witnesses when their evidence is not essential, it is rare for children to be heard as witnesses in Finland. For this reason, we have restricted the scope of this paper to a consideration of almost only the position of children as injured parties. In the event that a child is heard as a witness, the child’s testimony is valid as a complainant’s evidence. When a child is heard as a witness, a reminder must be given concerning equal treatment of the interested parties, and both parties must be given an opportunity to put questions to the child witness.
Protecting children from crimes is an ethically proper objective. The most common crimes directed at children are assault and sexual abuse. The fundamental objective in investigating these crimes is to prevent and end child abuse and sexual abuse, and to bring perpetrators to justice for their acts. A practical problem relating to this topic arises when two or more ethically proper and justified objectives, as described above, come into conflict. This problem is even more complex when crimes against children are concerned and it does not exist on a purely theoretical level and that is why it is important to engage with this issue.
In this paper, we shall examine the hearing of child witnesses in criminal procedure as a part of fair and just legal proceedings according to the Article 6 of the European Convention on Human Rights. We shall begin by considering the hearing of child witnesses on a general level, as well as the notion of a fair trial in the light of Art. 6. This is followed by an overview of ECHR case law which is relevant to the Nordic countries. As an example of how Art. 6 is applied on a national level, we then look at the hearing of child witnesses in criminal procedure in Finland. We conclude with our own thoughts and ideas on this matter.
2. HEARING CHILD WITNESSES
To obtain the material facts in a case, it is important that interested parties are present at the trial, because the interested parties themselves generally have more knowledge than anyone else about the circumstantial facts and what actually happened in the case. The benefits to be gained by their presence are comparable in magnitude to the possible reduction in legal protection for the interested parties, or at least the existence of a risk thereof.
Legal safeguards are there to ensure that no innocent person shall be punished and that the interested party shall be treated appropriately. The requirement of protection under the law applies to victims, or injured parties, as well. Appropriate treatment of children in a trial also means ensuring that the investigation of the offence (preliminary investigation and trial) does not cause additional harm to the child. It is worth remembering that a child who is a victim of a crime has the same rights and obligations as other injured parties.
Particularly in cases of sexual abuse, but also in cases involving assault, a child may be the only witness to the alleged offence. In cases involving sexual abuse, additional problems are caused by the fact that there is seldom any physical evidence of the offence. The child’s account of the matter may be the only evidence that corroborates the suspicion of criminal activity. Because of this, it is important that as precise and complete a description of the event as possible is obtained from the child. There is a direct relationship between the quality of the child’s account and the standard of later legal decisions.
Children are fundamentally capable of telling about events. Children recall less than adults if they are asked to give a free account of what they remember about an event that has happened. What they do recall does generally correspond to actual events, though. In general, children’s errors of memory are more often errors of omission than errors of inclusion. A problem with very young children’s accounts is the scanty nature of their responses to general, non-leading questions, regardless of whether or not the child remembers the event.
Research has shown that children recount events just as honestly as adults do. Telling a believable made-up story requires many skills, so the younger the child, the more likely it is that he/she will tell the truth because he/she does not yet know how to lie convincingly.
Researchers generally agree that children under 6 years of age are particularly susceptible to leading questions. There are individual differences in children’s susceptibility to being led, but the manner of questioning influences their susceptibility to being led to a greater extent than does the child’s individual personality.
The conditions for talking about one’s experiences comprise two components: ability and willingness. The problem usually encountered in talking about abuse is the child’s unwillingness to talk about it, not his/her inability to do so. The complainant is said to have a ‘negative duty to tell the truth’ about the case: anything he/she says must be the truth. The child, in his/her capacity as complainant, must also be informed honestly and directly of his/her right to remain silent. A child’s rights cannot be protected by infringing them.
The investigation of offences is not generally part of the duties of social or health care services, nor are therapists routinely subjected to questions about a client’s views. It is also problematic if an opportunity is provided to put questions to a child at an early stage, such as in the preliminary investigation, as the overall picture of the situation may still be incomplete. Then it is not easy to ask all the necessary questions at the same time, as at the trial. Furthermore, the judges are not present to ask any exploratory/supplementary questions. On the other hand, most problematic in terms of assessing the reliability of a child’s version of events are accounts produced in long, repetitive interviews – particularly if leading techniques were used.
In its decision in Bellerín Lagares v. Spain, delivered on 04.11.2003, ECHR held that Art. 6 of the European Convention on Human Rights does not explicitly require the interests of witnesses or victims of crimes to be taken under consideration under this article. ECHR recognises that questioning could affect their private life, freedom or security but considers that such interests are protected by other normative legislation. It therefore means that Contracting States must organise their criminal trials in such a way as to protect those interests as far as possible.
The European Court of Justice (ECJ), in its preliminary ruling delivered on 16.6.2005 concerning the case against Maria Pupino, held that national courts must be able to authorise young children who claim to have been victims of maltreatment to give their testimony in accordance with arrangements allowing those children to be guaranteed an appropriate level of protection. In its ruling the ECJ referred to legislation including the European Convention on Human Rights.
Other suggestions for methods for children to give evidence in criminal trials can be found in the European Commission’s 1997 Proposal concerning the Intimidation of Witnesses and the Rights of Defence, as well as the United Nations (UN) Declaration on the Rights of the Child.
3. FAIR TRIAL
3.1. Civil rights and human rights in general
Discussions on civil rights and human rights in other contexts have often divided these rights into three ‘generations’. First-generation human rights relate to the concept of freedom as defined by classical liberalism, which states that the purpose of the State is to safeguard the individual’s sphere of freedom. The second generation of human rights, which are economic, social and cultural rights, was characterised by the promotion of the rights of the individual. An example of the second generation of human rights is the United Nations International Covenant on Economic, Social and Cultural Rights. The latest, or third, generation often refers to collective rights, such as the right to funding and development and the right to a healthy environment and national self-determination. The European Convention on Human Rights protects mainly first-generation human rights, which can be characterised as freedoms. They can also be termed national and political rights.
The starting point for interpreting the Human Rights Convention is its wording. The Convention can be construed autonomically – that is, the terms used in the text of the Convention have an independent meaning which does not necessarily correspond to the concepts in national legal systems. In applying the Convention, the courts must also have regard to the purpose and objective of the Convention, as well as its nature as a Convention which establishes rights for the individual.
In interpreting the Human Rights Convention, attention must be paid to the prevailing level of implementation of human rights in the Member States of the European Union. This entails a certain adherence to European legal culture. The ECHR has sometimes sought guidance for interpreting the Convention in the UN’s International Covenant on Civil and Political Rights and has referred to international conventions on human rights for specific questions, such as the UN’s Convention on the Rights of the Child.
3.2. Main principles
The oral nature of the proceedings can be viewed as an essential part of the fundamental requirement for a fair trial. While oral proceedings do have a number of advantages, orality is not significant as an end in itself. Rather, it gains value through its promotion of other objectives. These other objectives include the adversarial, or contradictory, nature of proceedings (audiatur et altera pars) and the principle of ‘equality of arms’, as well as the opportunity for the accused to question the witnesses who have been asked to give evidence against him/her. Oral evidence also promotes implementation of the ‘best evidence rule’, and the free consideration of evidence, taking into account the oral hearing, lends a reliable foundation to the consideration of evidence. In oral proceedings, the court has the opportunity to manage the trial efficiently to investigate any unclear issues. Oral proceedings are also more reliable, speedier, and more public.
‘Oral’ means that the substantive content of the case is presented to the court in spoken form. Pre-trial preparations are not considered part of the oral proceedings.
The principle of immediacy, which is closely related to the principle of orality, is used to mean the immediacy of the trial procedure. The requirement for immediacy pertains to the interested parties’ statements as well as actual evidence. An advantage of the principle of immediacy is the court’s direct contact with people giving evidence in the trial. This provides the court optimal conditions for evaluating evidence given and for making observations of factors affecting the reliability of witnesses’ testimony, as well as reaching a substantively correct judgment. The immediacy of evidence ensures that the accused has an opportunity to put questions to the witness.
The principle of examining witnesses, or the contradictory principle, is an indispensable legal principle and is the key central procedural principle. Observing the contradictory principle and the right to examine and cross-examine witnesses is central to a fair trial. The contradictory principle and cross-examination serve the interests of the parties as well as the judges. It is cross-examination that makes it possible to evaluate the credibility of evidence.
Legislators and courts have a duty to uphold the equality of the parties in legal proceedings, although this is a matter of the relationship between the interested parties. It is the court’s task to ensure that the defendant is given an opportunity to test the oral evidence submitted against him/her (right to cross-examine). The contradictory principle, however, normally runs through the entire legal process. Thus the investigating authorities and the prosecution are also under a duty to have regard for the situation and duties of the defence in their own actions.
The ‘equality of arms’ principle, which is closely linked to the contradictory principle, refers to the procedural position of the parties. It states that no one may be procedurally favoured at the expense of another. The equality of arms principle is particularly significant in criminal trials in balancing the prosecution against the defence or the accused. The prosecution must disclose to the accused all materials it has in its possession, even if it does not intend to rely on them at trial. The same also applies to materials that support the defence.
3.3. The European Convention on Human Rights and the right to a fair trial
Article 6 of the Convention, which enshrines the right to a fair trial, is a very important part of the principle of the rule of law. Article 6 provides that:
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. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
a. to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
b. to have adequate time and facilities for the preparation of his defence;
c. to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
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;
e. to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
The elements of a fair trial set out in sections 2 and 3 of Art. 6 of the Convention do not represent an exhaustive list of the content required for a fair trial of a person charged with a crime. They are considered to be the minimum requirements which are to be interpreted in conjunction with the requirements for a public trial in section 1.
The right to prepare a defence and the right to examine or have examined witnesses against the defendant has been construed broadly. It should be noted that for criminal cases, when a trial has concluded with the issue of a judgment finding the defendant not guilty, there can be no question of an infringement of Art. 6 of the Convention, other than with regard to the duration of legal proceedings.
4. ECHR CASE LAW
In practice, Art. 6 of the European Convention on Human Rights has proven to be perhaps the most difficult part of the entire Convention to interpret, as well as the single most problematic article for Contracting States. Even though the ECHR has emphasised the freedom available to the Contracting States in choosing the methods they use to adapt the requirements set out in Art. 6, there have been more infringements against this article than any other single article.
The ECHR has ruled in a few cases on the subject of whether a child as a complainant in a criminal case has been heard in a manner ensuring a fair trial. In those cases the ECHR has held that the guarantees in Art. 6, s. 3 d are special aspects of the fair trial described in s. 1. The ECHR has also examined complaints from both sides. The ECHR has also pointed out that a complainant can be considered as a witness from the point of view of Art. 6, s. 3 d, if his or her statement is used as evidence against the defendant.
The ECHR has emphasised the receipt of evidence is primarily a matter to be determined in national legislation, and it is for the national courts to evaluate the evidence. It is the task of the ECHR to examine whether the trial, considered in its entirety, from the point of view of the type of evidence, was fair. The following section includes some key ECHR decisions in appeals from courts in the Nordic countries which are most relevant to the subject of this paper. Of course the same line of questioning and the same principles arise in many other rulings from the ECHR (see e.g. A.M. v. Italy 14.12.1999, P.S. v. Germany 20.12.2001, Lemasson and Achat v. France 14.1.2003, Accardi and Others v. Italy 20.1.2005, Bocos-Cuesta v. the Netherlands 10.11.2005, W.S. v. Poland 19.6.2007, Kovac v. Croatia 12.7.2007)
4.2. The ECHR’s judgments in appeals from courts in the Nordic countries
S.N. v. Sweden; 2 July 2002
The applicant was investigated on suspicion of committing sexual offences against a child. The applicant denied the charge in the District Court. The videotaped first police interview with the complainant, then aged 11, was shown during the hearing. The record of the complainant’s second police interview was read out for the transcript, but no examination of the complainant in person was ordered. The District Court also heard evidence from the complainant’s mother and teacher. The District Court noted that the outcome of the case was entirely dependent on the credibility of the complainant’s statements and sentenced the applicant to eight months' imprisonment.
The applicant appealed to the Court of Appeal. The same evidence was presented as in the District Court trial, but the audiotape of the second interview was played instead of being read aloud. Again, the applicant did not request that the complainant give evidence during the hearing. The Court of Appeal stated that the credibility of the complainant’s statements was of decisive importance in determining the applicant's guilt. It upheld the applicant's conviction but reduced the sentence to three months' imprisonment.
The applicant appealed to the Supreme Court, complaining that his counsel had not been able to put questions to the complainant. The Supreme Court refused the applicant leave to appeal.
The ECHR observed that the statements made by the complainant were virtually the sole evidence on which the courts' findings of guilt were based. The witnesses heard by the courts – the complainant's mother and his schoolteacher – had not seen the alleged acts and gave evidence only on the perceived subsequent changes in the complainant's personality. The complainant never appeared before the courts and the applicant did not have any opportunity to summon the complainant to the courts in person.
However, the second police interview with the complainant during the pre-trial investigation was held at the request of the applicant's counsel who considered that further information was necessary. The applicant's counsel was not present during the interview, nor was he able to follow it with the help of technical devices in an adjacent room. However, he consented not to be present, notwithstanding the resulting handicap to the defence, and he also accepted the manner in which the interview was to be conducted. It was open to the applicant's counsel to ask for a postponement of the interview until such time as the complainant's counsel was free to attend. However, he chose not to do so. It was also open to the applicant to request that the second interview be videotaped, which would have enabled him to satisfy himself that the interview had been conducted fairly. However, he did not avail himself of that possibility either. Furthermore, the applicant's counsel was able to have questions put to the complainant by the police officer conducting the interview.
Based on the reasons given above, the ECHR held that there had been no breach of the applicant’s rights under Article 6, ss. 1 and 3 d of the Convention because his counsel had not been in attendance at the second interview of the complainant. Nor was the applicant denied his rights under Article 6, s.3 d on the grounds that he was unable to examine or have examined the evidence given by the complainant during the trial and appeal proceedings. The videotape of the first police interview was shown during the trial and appeal hearings. The record of the second interview was read out before the District Court and the audiotape of that interview was played back before the Court of Appeal. The ECHR held that those measures must be considered sufficient to have enabled the applicant to challenge the complainant’s statements and his credibility. Because the Court of Appeal had also considered the complainant’s statements sufficiently carefully, the ECHR found that after the taped interviews, proceedings against the applicant, taken as a whole, could not be regarded as unfair and there had accordingly been no breach of Article 6, ss. 1 and 3 d of the Convention.
B. v. Finland; 24 April 2007
The applicant was suspected of sexually abusing two children. The applicant contested the alleged sexual abuse before the District Court. The District Court watched two videos of the then 9- and 13-year-old complainants, but the applicant did not request to examine them in court. The District Court heard the applicant, the co-accused and ten witnesses, including a psychiatrist, two psychologists and several persons who had taken care of the children and offered them a foster home over the years. The District Court noted that the case turned on the assessment of the credibility of the children's statements and sentence the applicant to seven years’ imprisonment.
The applicant appealed to the Court of Appeal. In her appeal, the applicant did not request that the children be heard before the Court of Appeal. When the second complainant withdrew her previous accusations prior to the hearing in the Court of Appeal, the applicant's counsel made a request to the Court of Appeal to the effect that the complainant be called as a witness in the forthcoming oral hearing or that she be questioned in an additional investigation conducted by the police during which the interview could be videotaped. Because it had not been established that the hearing of the complainant before the court or by any other means could bring additional evidence significant to the case and because it would be particularly stressful for the now 14-year-old complainant, given the personal nature and significance of the case, the Court of Appeal rejected the request. The same evidence was presented to the Court of Appeal as had been presented at trial. The Court of Appeal also heard four new witnesses, two of whom had been present when the second complainant had withdrawn her allegation against the applicant. The Court of Appeal upheld the lower court's judgment insofar as the applicant's conviction and sentence were concerned. The Court of Appeal noted that the case turned on an assessment of the credibility of the complainants’ statements and dismissed the applicant’s appeal.
The applicant requested leave to appeal to the Supreme Court of Finland, requesting that the applicant be given an opportunity to put questions to the second complainant. The Supreme Court rejected the application.
The ECHR noted that the children’s statements, which had been recorded in the pre-trial investigations and viewed on videotape in the District Court, constituted virtually the sole evidence on which the courts' findings of guilt were based. The witnesses heard by the courts had made no observations on the alleged acts and gave evidence only on the children's reliability.
The applicant and her counsel had been afforded an opportunity to have questions put to the children during the pre-trial investigation. However, they did not avail themselves of that opportunity. For the reasons cited above, the ECHR found that there was nothing to indicate that the rights of the defence were not respected before the applicant's being convicted and sentenced by the District Court. The same considerations applied to the proceedings in the Court of Appeal as far as the use in evidence of the children's pre-trial statements was concerned. As for the new information emerging later against the applicant, the ECHR noted that it was open to both parties to submit to the court whatever arguments they wished to make with regard to the video-recorded evidence and the information about the retraction by the second complainant of her allegations. Thus the ECHR was not convinced that the rights of the defence had been infringed by the absence of an additional interview with the second complainant. Accordingly, there had been no violation of Art. 6, s. 1 taken together with Art. 6, s. 3 d.
W. v. Finland; 24 April 2007
The applicant was charged with having sexually abused four children. The applicant denied the charges before the District Court. The District Court held an oral hearing during which videotaped interviews with the complainants, then aged 7 and 9, as well as two other complainants were presented. The children were not heard in person. The court also heard evidence from the applicant, the parents of the two complainants, the mothers of the other two complainants as well as a psychologist. The District Court stated that the case turned on an assessment of the credibility of the children's statements, and that questioning the children in court would not have added anything significant to the case. The District Court sentenced the applicant to two years and three months' imprisonment.
The applicant appealed to the Court of Appeal. The Court of Appeal was presented with the same evidence as had been before the District Court. The applicant did not request the complainants to give evidence before the court in person, but however rejected the admission of the children's pre-trial videotaped statements as evidence since he had not been afforded an opportunity to put questions to them. The Court of Appeal held that it was possible to use their pre-trial statements in evidence, as the questioning of the children, now aged 8 to 10, before the court would probably have caused them suffering. The Court of Appeal upheld the conviction, but reduced the applicant’s sentence to one year and eight months' imprisonment.
The applicant requested leave to appeal to the Supreme Court of Finland. The Supreme Court rejected his request.
The ECHR found that 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.
The applicant was not given an opportunity at any stage 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 children be interviewed again and that his questions be put to them. But the applicant could not have obtained the appearance of any of the children in person before the courts. The ECHR found that the use of this evidence involved such limitations on the rights of the defence that the applicant could not be said to have received a fair trial and therefore there had been a violation of Art. 6, s. 1 taken together with Art. 6, s. 3 d.
A.H. v. Finland; 10 May 2007
The applicant was charged with having indecently touched a child. The applicant denied the charge before the District Court. A videotaped interview of the complainant, then aged 6, was played in the District Court, but the complainant was not requested to give evidence in person. The court heard evidence from the applicant, the complainant's mother, the psychologist who had interviewed the complainant on the video, a psychologist specialising in criminology and forensic psychology (who had not interviewed the boy herself) as well as several other witnesses. The District Court convicted the applicant of sexual abuse and sentenced him to a suspended term of seven months' imprisonment.
The applicant, the prosecution and the complainant appealed to the Court of Appeal. The complainant was not requested to give evidence in person. The Court of Appeal upheld the conviction but increased the sentence to fourteen months' imprisonment with immediate effect.
The applicant sought leave to appeal to the Supreme Court of Finland. The Supreme Court rejected the application.
The ECHR held that the child’s recorded account that was played in court constituted the only direct evidence implicating the applicant. The witnesses heard by the courts had made no observations on the alleged acts.
The applicant had not been afforded an opportunity to have questions put to the child, nor could the applicant have obtained the complainant’s appearance in person before the courts. An examination of the case file does not disclose any particular circumstances which would have prevented an opportunity to have questions put to the child. In those circumstances, the ECHR found that the use of this evidence involved such limitations on the rights of the defence that the applicant could not be said to have received a fair trial. Therefore there had been a violation of Art. 6, s. 1 taken together with Art. 6, s. 3 d.
F. and M. v. Finland; 17 July 2007
Charges were brought against one of the applicants for sexual offences against a child. The applicant denied the charges before the District Court and requested that the complainant, then aged 14, be heard before the court. The court refused the request, referring to a psychiatrist’s report which stated that the hearing of the girl before the court would not be in her best interests having regard to the time that had passed since the alleged offences and the therapy that she had received. The court heard oral evidence from the complainant’s mother, two psychiatrists, a psychologist, the social welfare director, a social worker, the complainant’s foster mother and teacher. The District Court sentenced the applicant to a suspended term of one year and two months' imprisonment.
The applicant appealed to the Court of Appeal. The applicant also requested that the National Authority for Medico-Legal Affairs be invited to interview the complainant, but the Court of Appeal refused the request. It held an oral hearing and received largely the same oral evidence as had been presented to the lower court, and also heard oral evidence from the applicant. The Court of Appeal amended the District Court's judgment.
The applicant father appealed further, maintaining that the complainant should be heard. The Supreme Court invited an expert opinion from the National Authority for Medico-Legal Affairs on, inter alia, whether the complainant could be heard before the court. The Supreme Court refused leave to appeal against the criminal aspects of the case.
The ECHR held that the statements the child had given to the psychologist several years previously constituted the only evidence implicating the applicant. The witnesses heard by the court had made no observations on the alleged acts.
The applicant was never given an opportunity to have questions put to the child during the pre-trial investigation, and the applicant requested the child’s attendance during proceedings in the District Court and the Court of Appeal, but his requests were turned down. Not a single interview between the psychologist and the child had been recorded on audio or video tape. The prosecution never made arrangements to have a fresh interview recorded so as to allow the court to observe the manner in which the child reacted to the questions put to her or interacted generally with the psychologist during the interview. An examination of the case file does not disclose any particular circumstances which would have prevented the applicant or his counsel being afforded an opportunity to have questions put to the child. Therefore the ECHR held that there had been a violation of Art. 6, s. 1 taken together with Art. 6, s. 3 d.
4.3. Conclusions of the ECHR
According to the ECHR, all evidence should normally be presented in open court in the presence of the accused, having regard to the contradictory principle. Using statements obtained in preliminary investigations is not a violation of Art. 6, s. 1 taken together with Art. 6, s. 3 d per se, if the rights of the accused have been taken into account. Normally these rights of the accused require that the accused is given an adequate and appropriate opportunity to challenge any witness who gives evidence against him/her and to put questions to the witness, either when the witness gives his/her evidence or later. The ECHR has pointed out that Art. 6 of the Convention does not, however, give the accused an unlimited right to have witnesses heard in court.
In light of the ECHR’s case law, the use of evidence obtained in violation of Art. 6, s. 3d of the Convention may be permissible if there was no opportunity to arrange for the accused to put questions to the witness during the trial and if the statements made in the preliminary investigation are not the only evidence in the case. The sentence imposed must not be wholly or significantly based on statements which the accused could not test.
The ECHR has considered the special issues relating to cases concerning sexual offences and has stated that in certain situations, the interests of the accused must be weighed against the opposing interests of the complainant. A complainant in a case involving a sexual offence may find the court proceedings difficult, particularly if he/she must encounter the accused and especially if the complainant is a juvenile. In such cases the protection of the complainant’s individual life must be considered in evaluating the fairness of the trial for the accused. The ECHR has accepted that in cases involving sexual offences, special measures may be taken to protect the complainant if those measures can accommodate the rights of the accused in an appropriate and effective manner. To safeguard the rights of the accused, the court may also require measures which may disadvantage the defence.
5. APPLICATION OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS AT THE NATIONAL LEVEL, AN EXAMPLE: FINLAND
5.1. The Finnish Constitution
Like Art. 6 of the European Convention on Human Rights, the Finnish Constitution provides institutional protection for the most important aspects of a fair trial. Finnish Constitution states that everyone has the right to have his/her case dealt with appropriately and without undue delay by a legally competent court of law or other authority, as well as to have a decision pertaining to his/her rights or obligations reviewed by a court of law or other independent organ for the administration of justice. Provisions concerning the publicity of proceedings, the right to be heard, the right to receive a reasoned decision and the right of appeal, as well as the other guarantees of a fair trial and good governance shall be laid down by an Act.
5.2. Previous legislation
There were few provisions concerning the hearing of children in previous Finnish legislation. The Criminal Investigations Act stated that the guardian was to be permitted to be present when a child under the age of 15 was questioned. According to a decree issued on preliminary investigations and mandatory measures, children under 18 years of age were to be treated in preliminary investigations in a manner appropriate to their age and level of development. According to the Child Protection Law, the social services were to be represented in preliminary investigations and trials for punishable offences that a child was accused of, unless this was clearly unnecessary. Depending on the child’s age, level of development and the situation, a child could be heard in main legal proceedings in court. No strict age limit or other requirements for hearing children were set out categorically in Finnish legislation.
If a person summoned to be heard had not reached the age of 15 years, the court must consider, having regard to any special circumstances arising in the case, whether he/she could be heard as a witness. Children under age 15 were not be present in oral proceedings if the court considered it to be harmful to the child.
There were not any legislative provisions concerning special situations in which a very young child was a complainant, such as in cases involving serious sexual offences. Nor were there specific legislative measures for the conditions in which a child could be heard as a witness before a court or in a statement given in evidence or how a child witness should have been questioned. Despite this lack of specific legislation, it was considered that Finnish legislation permitted the videotaping of statements in preliminary investigations and the use of those video recordings in trials.
5.3. Current legislation
In 2002 the Finnish government submitted a Bill which proposed to incorporate more detailed terms concerning the hearing of children in legal proceedings into the Code of Judicial Procedure. The amendments to the Code of Judicial Procedure came into force on 1 October 2003. The amendments to the Criminal Investigations Act were also adopted at the same time. They came into force on 1 January 2004.
5.3.2. Pre-trial investigation
Broadly speaking, there are three stages in criminal proceedings in Finland: 1. a pre-trial investigation that is undertaken by the police on the basis of a suspicion that an offence has been committed. This pre-trial investigation is directed and overseen by a public prosecutor; 2. consideration of charges by the public prosecutor based on the pre-trial investigation, and a decision to charge the suspect; and 3. trial before a court of law.
The main purpose of a pre-trial investigation is to determine whether an offence has been committed, as well as the circumstances and affected parties. In its consideration of charges, the prosecution considers whether there are sufficient grounds to press charges. Any charge is identified in an application for a summons, which the prosecution submits to the court. This application for a summons contains a list of the prosecution’s evidence. At trial, the prosecution proceeds with the indictment and the court performs its duties for the administration of justice. The current legal provisions concerning the hearing of children which are applied in pre-trial investigations and trials are described below. It is generally not necessary to hear children in the stage involving the consideration of charges.
According to current legislative provisions, children under age 15 can be heard in pre-trial investigations. According to the amended Criminal Investigations Act, a child’s guardian has the right to be present when a child under age 15 is questioned. At least one guardian must be given the opportunity to be present. A guardian can be prohibited from being present for reasons including if the guardian disturbs the progress of the investigation. If the guardian is suspected of an offence against a minor, the guardian will not have a right to speak in the matter, nor will he/she have a right to be present during the questioning. A particularly strong position must be adopted in cases involving sexual offences in which a guardian who has committed offences against a minor must not be present under any circumstances when the child is questioned as a complainant.
Criminal Investigations Act contains a provision for a child who is a complainant or a witness to give a statement via recording. In the government Bill proposing this provision, no fixed age limit was set for the condition for videotaping. The grounds for this state that when questioning of a child under age 12, his/her statement should always be videotaped if it is planned to use his/her statement as evidence in a trial and the child cannot be questioned in court without causing harm to the child due to his/her age or level of development. Practice has shown that prosecutors do not generally summon children under age 15 to be heard in person for trials – at least not in cases involving serious offences.
Once a pre-trial investigation has been initiated concerning an offence committed against a child, the police must notify the prosecution of this matter. Offences committed against children, particularly sexual offences, are those which by their very nature mean that the prosecution is justified in being involved in the case from the very beginning.
Investigations are generally conducted by the police. Criminal Investigations Act also provides that if the atmosphere and circumstances of questioning, the child’s level of development and the seriousness of the case so require, questioning may be conducted by an expert with special training in interviewing children, such as a psychologist. If this is the case, the police must also be present. Questioning may also take place at a location other than a police station, such as at the child’s home or some other appropriate place. In some parts of Finland, questionings in cases involving sexual offences have been concentrated in central hospitals. Neither the accused nor his/her legal counsel may be in the same room as the child while the child is being questioned.
A requirement which is of particular importance for video questioning is the contradictory principle. A person accused of an offence has the right to know what has been uncovered in the pre-trial investigation. Thus the accused must be offered an opportunity to put questions to the child. This may be organised by having the accused follow the questioning of the child in another room and then giving the accused to have questions put to the child on the same occasion. The right to cross-examine may also be exercised by permitting the accused to have questions put to the child after the accused has watched the child being questioned on videotape. But the accused must not put questions to the child in person; his/her questions must be relayed via the person who questioned the child. To avoid inappropriate questions, the questioner may rephrase the questions in an appropriate way.
According to the Finnish Code of Judicial Procedure a videotape recording or other mode of video recording recorded by virtue of the Criminal Investigations Act may be taken into consideration in a trial, without hearing the complainant or witness at trial, if the accused has been given an opportunity to have questions put to the person being questioned. A videotape or other mode of video recording may also be taken into consideration in a trial even if the complainant or witness also gives evidence in person during the trial. In the latter case, the recording is additional evidence or reference material for the statement given in court.
The amended Finnish Code of Judicial Procedure sets out the conditions under which a child can be heard as a witness in court or in a statement given in evidence, and how such questioning must be done. Questioning of children under age 15 is generally always at the discretion of the court. The age limit is the same as the age of criminal responsibility. The nearer the child is to 15 years of age, the more likely it is that he/she can be heard in court. The younger the child, the less likely it is that he/she will be questioned in court. Children under age 10 generally are not heard in court. The court can also take into consideration whether hearing of child videotaped in the pre-trial investigation is sufficient to present the child’s observations clearly.
A requirement of questioning witnesses is that testimony given in person must be of central importance for deciding the case. In principle, this means an issue that is crucial to the evidence and the end result of the case. If there is no other evidence produced, examination of witnesses will be of central importance for deciding the case. “Central importance” is also used to refer to the importance of testimony for the evaluation of other evidence. Consideration can also be given to whether a recording of the person’s testimony can be utilised. If there is a recording and it is of good quality, testimony given in person will not be of central importance for deciding the case.
An additional requirement is that the questioning must not be likely to cause suffering or other harm to the person being questioned which could damage him/her or his/her personal development. The point of departure in considering this must be whether questioning in court per se causes suffering or harm. To assess the effects of questioning, the court may consult a child psychologist or family counsellors and if necessary may question experts such as these. In assessing the requirements, the court must have regard to the Finnish Code of Judicial Procedure, which provide for witness to be heard in the absence of the accused or without mutual eye contact. Examinations performed appropriately, in observance of these provisions, can reduce the suffering or harm caused by questioning.
If both requirements are fulfilled and the court also determines that it is appropriate, a child under 15 years of age may be heard in court.
The Finnish Code of Judicial Procedure contains a provision for the appointment of a support person. It is up to the court’s discretion as to whether it is necessary to appoint a support person. The purpose of this provision is to make questioning as easy as possible for the child. If a child under age 15 is questioned as a complainant, a support person would be appointed according to the terms of this provision.
When children are concerned the court normally examines the witness. This differs from the point of departure in the Finnish Code of Judicial Procedure, which states that the parties are to perform the examination of witnesses. The purpose of this procedure is to ensure that examinations are performed appropriately in court. The court may permit interested parties to perform the examination, but in such cases the court must monitor the relevance of the questioning. The interested parties must always be given an opportunity to put questions. Normally questions will be put via the court. An example of an appropriate way of doing this is for the parties to submit their questions to the court before the examination. At any rate, the parties must be given an opportunity during the trial to put additional questions to witnesses via the court.
It is possible for witnesses to be examined in a location other than in the courtroom. The purpose of this provision is to ensure that the examination can be conducted without disturbance if the witness is under 15 years of age. The other location may be another place in the court or at some other site. The opportunity to put questions to a witness must be ensured no matter where the examination takes place.
The current Act on the Publicity of Court Proceedings contain additional provisions which can protect the interests of a child who is a party to a case or in the public in court.
5.3.4. The theory of free evaluation of evidence
The majority of Finnish legal provisions pertaining to evidence are included in the Finnish Code of Judicial Procedure, which is founded on what is known as the ‘theory of free evaluation of evidence’. In the Finnish Code of Judicial Procedure it is stipulated that the court must decide, having careful regard to all matters raised in the case, what shall be considered to be the truth in the case. Two contributory factors emerge from this provision: free deliberation on evidence and free evidence.
The notion of free deliberation on evidence is central to the theory of free evaluation of evidence. It means that in its evaluation of the persuasiveness of evidence, the court is not fettered by any stipulations, and has a duty to consider freely the probative force of evidence presented to the court.
Exceptions to the principle of free evaluation of evidence are prescribed primarily from the perspective of ensuring that evidence is taken reliably and is received directly and centrally. The main rule is that all persons are to be heard at the trial without technical assistance. The ‘exceptions to the exceptions’ mentioned above are necessary for children under age 15 because of the underlying disadvantages to children in judicial questioning and considerations of credibility for evidence.
On the basis of Art. 6 of the European Convention on Human Rights and the case law of the ECHR, it can be said that a fair trial can be achieved only if the rights of all the parties are protected. No one can have a position that can cause someone else to end up without legal rights as a result. Nor may such a situation be permitted to arise where the rights of a child are involved.
The only time it is possible to make an exception to the contradictory principle is when there is a significant obstacle to cross-examine a witness. That is in situation when it is impossible to do so. In such cases, the verdict must not be based solely or significantly on this non-cross-examined evidence. The court must not decide matters against the accused on the basis of oral evidence for which it was not possible to arrange cross-examination.
A party must have an opportunity to challenge the evidence but cross-examination is not the only way to do it. In case a party does not have the opportunity to cross-examine the witness an opportunity to challenge evidence in such cases generally is organised in another way. It is required that any infringement of the rights of the defence must be counterbalanced by other measures which safeguard the legal protection of the defence. Examples of such measures could be particularly thorough rules for evidence which pay special attention to the evaluation of the credibility of evidence. From a purely practical point of view, there is no permission to restrict the right to cross-examine.
The European Convention on Human Rights does not contain special measures relating to children. The Convention rights apply uniformly and in their entirety to everyone, adults as well as children. The ECHR has taken a stand on the application of Convention rights in cases where children have been parties to a case and has issued decisions which affect the legal protection of children in criminal cases.
With regard to the principle of a fair trial set out in Article 6 of the Convention, in cases involving children it is essential to consider the individual nature of the child and the case and to reconcile those factors with the interest of judicial expedience and the other parties’ interest of legal protection. From a fair trial perspective, the parties in the case must be given an opportunity to put questions to a child witness, either in the pre-trial investigation or at trial. Neither the ECHR nor the European Convention on Human Rights have established a requirement for videotaping children’s testimony for a fair trial, but the advantages of videotaping are well known.
In light of Art. 6 of the European Convention on Human Rights and the decisions issued by the ECHR, the changes made to Finnish legislation in 2003 and 2004 were a move in the right direction. Thus Finnish criminal procedure largely conforms to the fair trial requirements set out in the Convention for the testimony of children.
6.2. The authors’ views
In crimes committed against children, the main evidence is usually the child’s testimony which is obtained in the pre-trial investigation. The procedures used for obtaining the child’s testimony are therefore absolutely critical for the entire trial. Investigative procedures can also influence a child’s testimony, even if this is unintentional. In our view, the use of video recording is justified in pre-trial investigations because then the process can be monitored and sources of errors are discernible.
In theory, deficiencies arising in a contradictory pre-trial investigation can be remedied at trial by giving the accused an opportunity to put questions to the witness then. Another possibility is to return the case to the police for further inquiries. This is often not sensible from the point of view of trial costs and procedural efficiency, however. It is of critical importance to have regard to the requirements for a fair trial even in the pre-trial investigation if it is anticipated that the child will not be examined in person at trial. We recommend that the testimony of children under age 15 should always be recorded on video and the accused should be given an opportunity to put or have put questions to the child.
On the other hand, a child’s testimony can change if he/she is questioned repeatedly. The reason for this may be that the child imagines the examiner thought his/her first statement was incorrect if he/she is questioned about the same matter again. Leading questions from the examiner are another danger, if the examiner wishes to obtain further descriptions or details from the child. For this reason we recommend that a child should not be questioned many times during the pre-trial investigation. The examiner should prepare sufficiently for the examination so that one or two occasions of questioning are sufficient.
When a child is examined, he/she should be permitted, and should be able, to speak freely about matters without his/her testimony being influenced. For this reason the child’s guardian should generally not be present in the room with the child. In our view, a good way of proceeding would be for the guardian present as support for the child when the child is introduced to the questioner, but when the conversation moves on to the actual case, the guardian should leave the room.
The child can be heard with people observing the hearing from behind a two-way mirror or via some technical link. It is possible that an awareness that his/her hearing is being observed, or who is observing, can influence the child’s statement. In our view, the child’s rights require that the child be told who is following the pre-trial investigation. Having regard to the points mentioned above, we also believe that the accused should not observe the hearing. To safeguard the legal protection of the accused, his/her legal counsel could be given an opportunity to observe the hearing of the child.
Normally, the parties would be heard in person at trial. This could, however, be a frightening situation for young children, and judges are not necessarily experts at hearing child witnesses. For this reason, we believe it is important that the issue can be decided by hearing the child outside the court. If this were not possible, it could be unreasonably difficult to obtain evidence in many crimes.
If a child witness is heard in court, this must be done as tactfully as possible, taking the child’s individual character into account. In our view, an appropriate way of handling this in court would be for the judge to hear the child witness in private, with the parties listening to the hearing via a technical link. Afterwards, the parties would be given an opportunity to put questions to the child via the judge.
6.3. Concluding remarks
Offences committed against children are difficult to deal with for many reasons. Children are particularly unprotected against criminal offences and do not have the legal capacity to represent their own interests. Children are also dependent on adults to provide protection and care for them. Crimes committed against children give rise to extremely strong emotions.
Integrating children into criminal process is like trying to mix oil and water. Crime and punishment are matters that belong to the world of adults. Unfortunately it is a matter of fact that children are also the victims of crime and so become part of the criminal legal process.
The aim of a criminal procedure is to reach the right decision. That is a decision in accordance with the substantive criminal provisions. This and legal safeguards require the use of procedures which are most likely to lead to a result that is right, fair and just. Offences against children are no exception to this principle. If a legal process is fair, the child’s interest of protection must be taken into account in cases involving offences against children, along with the interest of investigating the case and the legal protection interest of the accused. Although the evidence in crimes committed against children is often only personal testimony, it should be remembered that the issue in crimes against children is not whose account – that of the child or the accused – is more credible. There can never be any remaining reasonable doubt as to guilt.