CASE OF A.L. v. FINLAND
(Application no. 23220/04)
27 January 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of A.L. v. Finland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
David Thór Björgvinsson,
Nebojša Vučinić, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 6 January 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
II. RELEVANT DOMESTIC LAW
A. The pre-trial investigation
B. The receipt of evidence in court
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
Given that the guarantees in paragraph 3 of Article 6 are specific aspects of the right to a fair trial set forth in paragraph 1, it is appropriate to examine the complaint under the two provisions taken together (see, among other authorities, Asch v. Austria, 26 April 1991, § 25, Series A no. 203, and A.H. v. Finland, no. 46602/99, § 30, 10 May 2007).
Article 6 reads, in so far as relevant:
“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;
Submissions of the parties
When considering admissibility of the video recording as evidence in the Supreme Court, the court firstly notes that absolute prohibitions on testifying are exceptional in the Finnish legal system. The main rule is the principle of free production of evidence, which largely leaves it up to the parties to decide what circumstances and evidence they want to invoke in their case. It is at the court's discretion to decide what evidentiary value it attributes to each piece of evidence.
The prohibition on testifying laid down in Chapter 17, section 11(1)(2) of the Code of Judicial Procedure, concerning recorded statements, is ultimately aimed to ensure a fair trial for suspects. Therefore, in interpreting the extent of this prohibition, attention must be paid to the proceedings as a whole. Chapter 17, section 11(3) of the Code of Judicial Procedure, in turn, lays down the principle that, if a witness cannot be heard before the court in person, the court may admit as evidence his or her recorded statement even if it is, according to the main rule, otherwise inadmissible as evidence.
The Government concluded that, if a defendant had not been afforded an opportunity to put questions to a complainant child, a recorded account from the child in question could be assessed by weighing its value as evidence and that the use of such evidence could not be categorically prohibited.
The Court's assessment
Therefore, there has been a violation of Article 6 § 1 taken together with Article 6 § 3 (d).
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
The Court accepts that the lack of the guarantees of Article 6 has caused the applicant non-pecuniary damage, which cannot be made good by the mere finding of a violation. The Court, making its assessment on an equitable basis, awards the applicant EUR 3,000 in respect of non-pecuniary damage.
B. Costs and expenses
The Court finds that, taking into account the total amount of counsel's fee of EUR 1,000 (without value-added tax), the documents submitted by the applicant in support of his claim are sufficient for the purpose of assessing the amount of the award under this head. Taking into account also all the other circumstances, and having regard to the amount received by way of legal aid from the Council of Europe, the Court awards the applicant EUR 402 (inclusive of value-added tax) in respect of costs and expenses.
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
2. Holds that there has been a violation of Article 6 § 1 of the Convention taken together with Article 6 § 3 (d) of the Convention;
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:
(i) EUR 3,000 (three thousand euros) in respect of non-pecuniary damage;
(ii) EUR 402 (four hundred and two euros) in respect of costs and expenses;
(iii) any tax that may be chargeable on the above amounts;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 27 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President