Date when decision was rendered: 17.6.2008

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report no. 1258; R2007/206

Reference to source

KKO 2008:68.

Decisions of the Supreme Court 2008 I January-June

Avgöranden av Högsta domstolen 2008 I januari-juni

Korkeimman oikeuden ratkaisuja 2008 I tammi-kesäkuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2008

Pages: pp. 470-478

Subject

fair trial, right to examine witnesses, witnesses,
rättvis rättegång, rätt att förhöra vittnen, vittnen,
oikeudenmukainen oikeudenkäynti, oikeus kuulustella todistajia, todistajat,

Relevant legal provisions

chapter 17, section 2-1 of the Code of Judicial Procedure

= rättegångsbalken 17 kapitel 2 § 1 mom.

= oikeudenkäymiskaari 17 luku 2 § 1 mom.

ECHR-6-3-d; CCPR-14-3-e

Abstract

The court of first instance had convicted X for sexual abuse of his five-year-old daughter.The court of appeal agreed with the lower court.The conviction was mainly based on the reports and testimony of a psychologist who had interviewed the child three times.During the first two interviews, issues had come up which gave cause to suspect sexual abuse.These interviews were not recorded on audio or video tape.The third interview, which was recorded on video tape, took place after the pre-trial investigation had been initiated.

The Supreme Court noted that although hearsay evidence was not in conflict with Finnish legislation, it was problematic considering the rights of the defendant.The Court referred to Article 14-3-e of the CCPR, Article 6-3-d of the ECHR and the decisions of the European Court of Human Rights in the cases of Unterpertinger v.Austria (24 November 1986), Delta v.France (19 December 1990) and Rachdad v.France (13 November 2003).It also cited the case of F and M v.Finland (17 July 2007), where the European Court of Human Rights had ruled in a sexual abuse case that a child complainant should have been regarded as a "witness", because the child's statements, given to a psychologist, had been used as evidence against the defendant, although the child had not been heard during pre-trial investigation or in court.The Supreme Court held that the requirements concerning presentation of evidence, as set in the quoted human rights provisions and case law, must be taken into account when assessing the significance of hearsay evidence in a criminal case.In this case, the credibility of the child's statements would have to be assessed on the basis of the psychologist's testimony only.In the third, videotaped interview the child had also changed her account as compared to the two previous interviews.The significance of the third interview could not be assessed reliably, because its contents could not be compared with the original contents of the two previous interviews.Considering also that X was not present during the interviews and that he had not at any stage of the process been afforded an opportunity to put questions to the child, the Supreme Court concluded that, under the circumstances, a judgment could not be based solely on the psychologist's account and interpretation of the contents of the interviews with the child.Because other evidence supporting the sexual abuse charge was weak, the Supreme Court dismissed the charge as unsubstantiated.

The decision was made by a vote.Two dissenting justices found an oral hearing should have been held before the Supreme Court.One of the two dissenting justices also found that the fact that X had not had the opportunity to put questions to the child could in this case not form the grounds for dismissing the charges, because X had used his opportunity to give his views on the value of the videotaped interview as evidence.Moreover, on the basis of the video recording the lower courts had been able to assess the statements and behaviour of the child.

25.3.2010 / 25.3.2010 / RHANSKI