AL V FINLAND  ECHR 23220/04
The Applicant had been charged with the sexual abuse of a girl aged 14, who had the intelligence level of a child aged 6 to 8 ½ years. The child’s account of events had been recorded on videotape and had been treated as decisive evidence against the Applicant. He was convicted at first instance and appealed, saying that he had not been given the opportunity to watch the video recording of the interview or put any questions to the girl. The appeal court dismissed his appeal relying on Finnish statute, which said that a child below the age of 15 could not attend a hearing if the court found that this could be detrimental to him or her. He was then refused leave to appeal to the Supreme Court of Finland.
He complained to the European Court of Human Rights, claiming that the state had breached Article 6(1) and (3) of the European Convention on Human Rights.
The European Court of Human Rights (“ECHR”) considered the operation of Finnish law in relation to criminal investigations involving children. At the time of the proceedings in question, there were no legal provisions concerning the use of a video recording of testimony given by a child during the pre-trial investigation. However that had now been changed, and there were provisions allowing audio or videotape evidence to be used, if the accused had been provided with an opportunity to have questions put to the person giving the testimony. The court could designate a support person for the witness, and would put the questions to the child itself unless there were good reasons to entrust such questioning to the parties.
Article 6 read:-
“1. In the determination of….any criminal charge against him, everyone is entitled to a fair…..hearing…by [a] tribunal…..
3. Everyone charged with a criminal offence has the following minimum rights:
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
The state had submitted that the Applicant had not asked for an opportunity to put questions to the child in the court of first instance. Moreover the video recording had been played back before the court. The applicant’s conviction had not been solely based on this evidence but on other supporting evidence. The Applicant contended that at no stage had he been afforded the opportunity to put questions to the main witness against him, namely the child complainant, and he had made that request in the appellate court. The video evidence was the main evidence against him.
The ECHR said that the admissibility of evidence was primarily a matter for regulation by national law, and as a general rule it was for the national courts to assess the evidence before them. The task of the ECHR was to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair. However paragraphs 1 and 3(d) of Article 6 could not be interpreted as requiring in all cases that questions be put directly by the accused or his lawyer, but rather that the accused had to give an adequate and proper opportunity to challenge and question a witness against him. A conviction should not be based either solely or to a decisive extent on statements which the defence has not been able to challenge. On the other hand, witnesses could be limited by the court.
Criminal offences concerning sexual offences were often perceived as an ordeal by the victim, in particular when the victim was unwillingly confronted with the Defendant. These features were even more prominent in a case involving a minor. Account had to be taken of the right to respect for the private life of the alleged victim, so certain measures could be taken to protect the victim.
It could not be a sufficient safeguard for the rights of the defence where no opportunity to put questions to a person giving the account had been afforded by the authorities. In these circumstances, 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 was a violation of Article 6(1) taken together with Article 6(3)(d).
The Applicant claimed Euro 1062.41 for the amount levied in execution following his conviction. He also claimed compensation for non-pecuniary damage due to suffering, without specifying the amount. The ECHR could find no causal link between that amount and the violation of Article 6. It would award Euro 3000 for non pecuniary damage. In relation to costs and expenses, the Applicant claimed Euro 1252.72 including VAT. An amount of Euro 402 would be awarded.
Interest would also be awarded on the above amounts from the expiry of three months from the final judgment, at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points.