AS TO THE ADMISSIBILITY OF
Application no. 34209/96
The European Court of Human Rights (First Section), sitting on 16 January 2001 as a Chamber composed of
Mrs W. Thomassen, President,
Mrs E. Palm,
Mr L. Ferrari Bravo,
Mr Gaukur Jörundsson,
Mr C. Bnrsan,
Mr J. Casadevall,
Mr R. Maruste, judges,
and Mr M. O'Boyle, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 28 August 1996 and registered on 18 December 1996,
Having regard to Article 5 ' 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
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 is a Swedish national, born in 1965 and living in Lyttorp. He is represented before the Court by Mr P.E. Samuelson, a lawyer practising in Stockholm. The respondent Government are represented by Ms E. Jagander, Ministry of Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
In February 1995 the Social Council (socialnämnden) of Borgholm was contacted by the school teacher of M., a ten year old boy, on account of a suspicion that M. had been sexually abused by the applicant. On 29 March 1995, after having made an investigation, the Council reported the matter to the police authorities in Kalmar.
On 7 April 1995, between 10.09 a.m. and 10.51 a.m., a police officer interviewed M. The interview was recorded on video tape. M.'s parents and representatives of the Social Council were present in the adjoining room. At this time, the applicant had not been informed of the suspicions against him and no defence counsel had been appointed for him.
On 10 May 1995 the applicant was interrogated by the police and the public prosecutor. Before the interrogation the applicant was notified, in accordance with Chapter 23, Section 18 of the Code of Judicial Procedure (Rättegångsbalken), of the suspicions against him.
In June 1995 the applicant received a copy of the report of the preliminary investigation and on 3 July a defence counsel was appointed for him. The applicant was given an opportunity to submit observations and request additional interviews and other investigative measures. Finding that further information was necessary with regard to, inter alia, the dates and the number of occasions when the alleged acts had been committed, the applicant's counsel requested that M. be interviewed again.
In accordance with counsel's request, a second interview with M. was held on 20 September 1995, between 12.50 p.m. and 1.14 p.m., by the same police officer. During the interview, which was recorded on audio tape only, M.'s parents were present but not the applicant's counsel. It appears that M.'s counsel, who had not been served the notice for the interview, was opposed to only one counsel being present at an interview. Finding that it would be unreasonable to cancel the interview, as the police officer was present and M. had taken time off from school, the applicant's counsel accepted that the interview be conducted without his being present.
On 29 September 1995 the applicant was indicted for sexual acts with a child (sexuellt umgänge med barn).
The District Court (tingsrätten) of Kalmar heard the case on 31 October 1995. The applicant denied the charges. The video-taped police interview with M. was shown during the hearing. The minutes of the second interview were read out. The court further heard M.'s mother and his school teacher as witnesses. No request for M. to be heard in person was made.
By a judgment of 14 November 1995 the District Court convicted the applicant and sentenced him to eight months' imprisonment. The court, noting that the outcome of the case was entirely dependent on the credibility of M.'s statements, found no reason to call into question their veracity. Thus, basing itself on these statements, the court found that the applicant, on a great number of occasions in 1994, had touched or masturbated M.'s penis and induced M to touch or masturbate the applicant's penis.
The applicant appealed to the Göta Court of Appeal (Göta hovrätt). The appellate court held a hearing on 22 April 1996, during which it heard the applicant and his counsel. M.'s mother and his school teacher gave evidence. The video tape of the first police interview with M. and the audio tape of the second interview were played back. Again, the applicant did not request that M. be heard during the hearing.
By a judgment of 6 May 1996 the Court of Appeal upheld the applicant's conviction but reduced the sentence to three months' imprisonment. It considered that, as there was no technical evidence in the case and nobody had witnessed the alleged acts, the credibility of M.'s statements was of decisive importance in determining the applicant's guilt. Noting that interrogations with children held during pre-trial investigations must meet high standards with regard to the procedure and the contents, the court went on to state the following:
"The information given by [M.] is, in some parts, vague and uncertain. He has not been able to give details of any specific incident covered by the prosecution and he has been able to describe only in more general terms what kind of sexual contact has occurred. It should further be noted that some of the questions put to him have been of a leading nature. Even if these circumstances are taken into account, the Court of Appeal finds that [M.'s] statements cannot be disregarded.
A fact which strongly indicates that [M.] has been subjected to homosexual abuse is his expressed concern that he would become 'gay'. The Court of Appeal has had further regard to the following circumstances. The general impression of the video recording is that [M.] has talked about something he has indeed experienced and that it has been embarrassing and painful for him to give this information. This may explain his unwillingness to go into detail about the specific incidents. [M.] has not shown any tendency to exaggerate his statements and has corrected the interrogator on several occasions. Furthermore, in some respects his statements can be said to contain more personal observations, for example 'Of course, I did not want to touch his but sometimes I did it without gloves' and 'First I asked if I would get any (refers to
pastilles). He did not have any and then I did it voluntarily but I do not know why'. It should further be noted that no information has come to hand which could reasonably explain that [M.] would make untrue statements about events which he obviously considers as shameful. Of importance is also the information given by [M.'s] mother and teacher which describes how [M.'s] personality has changed since the alleged injustice. The fact that it was a long time before [M.] spoke about what he experienced is easily explained by the feelings of guilt he has had and by the fact that thinking about the incidents is distasteful to him. [M.'s] accounts do not contain any improbable elements, neither is the information given by him contradicted by other statements. In view of what has now been said, the Court of Appeal finds that [M.] is credible and that his statements should form the basis for the Court of Appeal's assessment whether [the applicant] has behaved towards him in the manner indicated by the public prosecutor in his statement on the acts charged.'
The Court of Appeal found the information given by M. to show that the applicant had induced M. to touch or masturbate the applicant's penis. However, the statements that the applicant had touched or masturbated M.'s penis were too uncertain and vague and thus did not constitute sufficient evidence.
The applicant appealed to the Supreme Court (Högsta domstolen). Invoking Article 6 '' 1 and 3 (d) of the Convention, he complained that his counsel had not been able to put questions to M. He noted that there was no technical or other evidence in the case to support M.'s statements. He further criticised the manner in which M had been interviewed and stated that M.'s statements were vague and contradictory. In these circumstances, the applicant claimed that he had a right of cross-examination of M. He maintained that the Supreme Court's case-law, which allegedly allowed the line of procedure followed in his case, had to be changed in order either to give counsel for the defence a right to examine the minor or to require clear supporting evidence.
On 26 June 1996 the Supreme Court refused leave to appeal.
B. Relevant domestic law and practice
Domestic provisions of relevance in the present case are found in the Code of Judicial Procedure (hereinafter 'the Code') and in the Ordinance on Preliminary Investigations (Förundersökningskungörelsen, 1947:948; hereinafter 'the Ordinance'). There is also some national case-law of interest.
A preliminary investigation shall take place whenever there is reason to believe that a crime has been committed. Chapter 23, Section 10 of the Code includes provisions pertaining to the categories of persons allowed to
attend an interview during a preliminary investigation. The suspect and his defence counsel are always entitled to attend an interview which takes place following a request made by the suspect himself. This right, however, does not manifest itself until a person has been informed of the suspicions against him in accordance with Chapter 23, Section 18 of the Code. As far as other interviews are concerned, counsel for the defence may attend if his attendance will not harm the investigation. It is for the person who heads the preliminary investigation ' a police officer or a public prosecutor ' to decide who may attend a specific interview during the preliminary investigation. In cases where the suspect or his defence counsel are present during an interview, questions may only be asked in the order that the head of the preliminary investigation decides (Chapter 23, Section 11 of the Code).
When a preliminary investigation has reached the point where a person can be reasonably suspected of having committed a crime, the person in question shall be notified of the suspicions against him, according to Chapter 23, Section 18 of the Code. Under the second paragraph of that provision, an interview or other form of investigation shall be undertaken on request by the suspect or his defence counsel if the measure may be deemed to be of importance to the preliminary investigation as such. If a request for such an investigative measure is not granted, the reasons for the decision shall be given. Following a complaint from the suspect, the issue is settled by the court (Chapter 23, Section 19 of the Code).
Interviews with children conducted in the framework of a preliminary investigation are subject to special regulations. Thus, according to Chapter 23, Section 10 of the Code, a child's custodian should be present whenever a child under the age of fifteen is questioned if this can be done without any harmful effects on the investigation.
Further and more detailed provisions concerning the questioning of children are found in the Ordinance. According to its Section 17, interviews with, inter alia, an injured party under the age of eighteen shall be conducted in such a manner that there is no danger that the interviewed person is harmed. It is also stipulated in that Section that particular care shall be exercised when the questioning concerns sexual matters. Furthermore, particular care has to be taken in order to ensure that the interview does not create a stir and that it does not become more intimate than the circumstances necessitate. Questioning should moreover, according to Section 17 of the Ordinance, occur only on one occasion unless it is more appropriate to conduct several interviews out of consideration for the child who is being questioned.
Section 18 of the Ordinance provides that interviews with children shall be conducted by persons who are particularly apt to perform the task. In addition, Section 19 provides that a person with special expertise in the field of child psychology or interrogation psychology may assist at the questioning or comment on the value of the child's testimony.
Whenever the testimony of a witness below the age of fifteen is invoked in a criminal case, the court shall determine, taking account of all relevant circumstances, whether the child shall testify (Chapter 36, Section 4 of the Code). There is no corresponding provision applicable to children who are in the position of being the injured party. In practice, however, such evidence is normally presented to the court in the form of a video recording of the police interview, which is played back during the court's main hearing. In allowing this to take place, the court applies Chapter 35, Section 14 of the Code. According to that provision, a statement made to the police or to the prosecutor or otherwise out of court may be invoked as evidence in a trial only if this is specifically prescribed, if the person who has submitted the statement cannot be heard before the court or if there are particular reasons for the statement to be invoked considering the costs or inconveniences that a hearing before the court may entail on the one hand and the advantages of a hearing before the court, the importance of the statement and all other relevant circumstances on the other hand.
The application of Chapter 35, Section 14 of the Code in relation to Article 6 of the Convention has been examined by the Supreme Court on one occasion. In the case in question, published in NJA (Nytt Juridiskt Arkiv) 1992, p. 532 et seq., the court quashed a judgment by a court of appeal and referred the case back to the latter court for re-examination. The reason for this was that the appellate court, as well as the first instance court, had allowed the prosecutor to invoke as evidence written records of a police interview with the injured party in a case concerning indictment for robbery. It had not been possible to serve a summons to the main hearing on the injured party. The court of appeal had been of the opinion that the information submitted by the injured party to the police had to be given credit and convicted the defendant of robbery. The Supreme Court, on the other hand, emphasised that Article 6 of the Convention and its application and interpretation was of major importance in respect of the application of Chapter 35, Section 14 of the Code. In light of the fact that the European Court of Human Rights had come to the conclusion that there was a breach of Article 6 when a court invoked statements by a person ' who had not been heard before the court and whom the defendant had not had the opportunity to question in some other context ' in support of a conviction,
the Supreme Court in its turn came to the conclusion that the provision of the Code should be applied more restrictively than was called for by its wording and what appeared to be the original intentions behind the provision. According to the Supreme Court, the inferior courts had applied the provision in such a way that the defendant had not been afforded a fair trial in accordance with the Convention.
Issues concerning the quality and evaluation of evidence have been examined by the Supreme Court in two published cases, NJA 1993 p. 68 et seq. and 1993 p. 616 et seq., which are of relevance in this context. The first-mentioned case concerned the alleged sexual abuse of a minor, aged 14, who could not be heard before the court on account of mental problems. The evidence consisted mainly of information supplied by the injured party to the police. The police interview had been recorded on video tape. The Supreme Court came to the conclusion that it is inevitable that the value of such statements as evidence is not equal to the value of statements presented during the main hearing. Even so, the evidence in that case, i.e. the injured party's testimony together with other evidence, was deemed to be strong enough for a conviction.
In the latter case, the injured parties were born in 1981 and 1983, respectively. The essential evidence consisted of video taped interviews with them. The interviews had taken place in the absence of the suspect and his defence counsel. They were given the opportunity to examine the information and to request that additional information be provided prior to indictment. However, defence counsel was of the opinion that further questioning would prove pointless, since in his view the injured parties would only repeat from memory what they had submitted previously. The Supreme Court stated that, bearing in mind that the accused had chosen not to request that additional questions be posed, his right to a fair trial could not be seen as having been breached on account of the fact that the video tapes had been invoked as evidence against him. As far as the evaluation of the evidence was concerned, the Supreme Court stressed the fact that the injured parties had only been questioned out of court and that it could therefore not assess their credibility and the trustworthiness of their information by means of impressions conveyed through questioning taking place directly before the court. It followed, according to the Supreme Court, that the information submitted by the injured parties should be assessed with particular care. The fact that the accused had been prevented from posing questions through his defence counsel to the injured parties and that also the court itself was prevented from doing so pointed in the same direction. According to the Supreme Court this did not entail, however, that the video taped interviews could not be sufficient in order to prove the guilt of the accused beyond reasonable doubt. The injured parties' submissions combined with other evidence led the Supreme Court to the conclusion that the judgment should be based on, inter alia, the submissions in question.
The applicant claims that he did not have a fair trial, as he was not given the opportunity to question M. He maintains that the police interviews with M. were faulty, inter alia, as they contained leading questions and as, during the second interview, no questions on the issues indicated by the applicant's counsel were asked. Further, the applicant asserts, there was no evidence in the case to support M.'s statements. He invokes Article 6 '' 1 and 3 (d) of the Convention.
Invoking Article 6 '' 1 and 3 (d) of the Convention, the applicant claims that he did not have a fair trial. He submits that, as the public prosecutor and the Court of Appeal refused his request for a re-examination of M., he was not given an opportunity to put questions to him.
'1. In the determination ... any criminal charge against him, everyone is entitled to a fair ... hearing ...
3. Everyone charged with a criminal offence has the following minimum rights:
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
The Government question in the first place whether the applicant should not be considered to have waived his right to be present through his defence counsel at the second interview with the injured party. In the Government's opinion, the applicant cannot reasonably agree in September 1995 to the second interview being conducted in counsel's absence and less than a year later, after having submitted his complaints under the Convention, claim that the rights of the defence have been infringed. The Government add in this context that at no point later on did the applicant request that the injured party be heard before any of the courts handling the case. In the alternative and with reference to the same facts, the Government question whether the applicant can claim to be a victim, in the meaning of the Convention, of a violation of Article 6 ' 1 taken together with ' 3 (d) of the same Article.
Should these arguments not be accepted and Article 6 be considered applicable, the Government is of the opinion that the application is manifestly ill-founded, for the following reasons.
The injured party's statements were invoked before the domestic courts in the form of video and audio recordings, which were played back to the courts or transcripts of which were read out to them. This gave the courts a much better opportunity to assess the value of the statements as evidence then if, e.g., the statements had been related to the courts by a police officer or been written down and read out to the courts. The video technique, in particular, enable the courts to observe the injured party's demeanour under questioning. In this way the courts were given the opportunity to assess the value of his statements in a more accurate manner by, e.g., paying attention to the way he reacted to certain questions, compared to when other techniques of relating statements are employed.
The video and audio tapes of the police interviews were not the only evidence invoked by the prosecutor against the applicant. Both M.'s mother and his teacher testified before the District Court and the Court of Appeal about the change in personality, which he had undergone since the injustice had been inflicted upon him. His submissions were thus corroborated by other evidence.
Furthermore, the Government maintain, the applicant never even requested that M. be heard before the courts. Although aware of the hesitations of courts, generally, to allow children to give testimony, the Government recall that M. had reached the age of 12 when the Supreme Court decided not to grant the applicant leave to appeal.
In addition, the Government submit that it is clear from the Court of Appeal's judgment that the court was aware of the flaws attached to the police interviews with M. The court, thus, took note of, inter alia, the fact that 'some of the questions put to him have been of a leading nature'. Already at the outset of its reasoning, the court referred to the above-mentioned Supreme Court case published in NJA 1993 p. 616 et seq. The Court of Appeal then went on to reflect on the different factors which were of relevance when it came to assessing the credibility of M. and the veracity of his account. In the Government's opinion, the Court of Appeal's reasoning indicates clearly the special diligence shown by the court when it set out to assess the value of the evidence provided by the video and audio recordings.
The Government also maintain that it should be taken into consideration that the Court of Appeal's thorough and careful analysis of M.'s account actually led to the applicant's partial acquittal.
In addition, the Government submit that M. was harmed to a much lesser extent by the two interviews during the preliminary investigation than if he had had to endure being questioned in a court setting. While these
circumstances cannot be allowed to block prosecution it has also to be considered, in the Government's opinion, proportionate to safeguard the interests of the injured party by sparing him one or more appearances before a court in view of the fact that the applicant had the opportunity to discuss M's version of events and to put his own, first to the police and later to the courts.
The applicant disputes the Government's opinion for the following reasons.
What is at stake is the fact that an accused according to Swedish law and practice is not allowed to ask questions himself. Even if the applicant's counsel had attended the second interview with M., he would not have been allowed to put one single question to M. Consequently, the applicant has not waived any right to examine M. because he had never had one.
The applicant maintains that he is not complaining that his counsel was not allowed to attend the interview, sitting beside the police, but about the fact that under Swedish law it is permitted to find him guilty solely on the basis of the injured party's statement although the applicant was not allowed to cross-examine him. It would have been meaningless for him to request that M. be heard before the courts because for more than 30 years this had not been allowed according to court practice. If such a request had been made in spite of this, it would certainly have been rejected and counsel would have risked being criticised for invoking evidence against his better judgment.
Further, the applicant maintains that it is not correct, as stated by the Government, that supplementary evidence was invoked against him.
Lastly, the applicant maintains that, according to Swedish law, defence counsel is not allowed to question a child, because it could be harmed by too critical questions. The system that instead the police shall replace counsel for the accused is unreasonable. A police officer can never replace a defence counsel. Since the object of the system is to prevent an examination which is too critical the idea is, obviously, that the police are not as critical as a defence counsel. This is probably correct, and is thus also devastating for the legal security of the accused. If there is a wish to protect victims of crime from being harmed by hearings, defence counsels and cross-examinations, the accused persons will have to be acquitted in such cases. Under prevailing circumstances people are convicted anyway, which in practice means that the burden of proof in cases regarding sex crimes against children is very low.
The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. The
Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 ' 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court unanimously
Declares the application admissible, without prejudging the merits of the case.
Michael O'Boyle Wilhelmina Thomassen
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