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FOURTH
SECTION
CASE OF F AND M v. FINLAND
(Application
no. 22508/02)
JUDGMENT
STRASBOURG
17 July
2007
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 F and M v. Finland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr S. Pavlovschi,
Mr L. Garlicki,
Ms L.
Mijović,
Mr J. Šikuta,
Mrs P. Hirvelä,
judges,
and Mr T.L. Early, Section Registrar,
Having
deliberated in private on 26 June 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 22508/02) against the Republic
of Finland lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Finnish nationals, (“the
applicants”), on 7 June 2002. The President of the
Chamber decided, of his own motion, that the applicants' and their
daughter's identity should not be disclosed (Rule 47 § 3
of the Rules of Court).
- The
applicants, the first of whom had been granted legal aid, were
represented by Mr E. Kivitie, a lawyer practising in Pori. The
Finnish Government (“the Government”) were represented by
their Agent, Mr Arto Kosonen of the Ministry for Foreign
Affairs.
- The
first applicant alleged, in particular, that the criminal proceedings
had been excessive in length and that the rights of the defence in
respect of witnesses, i.e. the child complainant, had not been
respected.
- On
28 October 2005 the Court decided to give notice of the application
to the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1953 and 1950 respectively.
A. Public care of D
- F
and M are the father and the mother of D, a girl born on
10 June 1984. On 4 June 1991 she was admitted to the child
psychiatric department of a hospital for a six-week period for
observation. During the observation she mentioned that she had played
“finger games” with her father. According to the parents,
D had referred to hobby crafts. It appears that the psychologist and
the social welfare authorities interpreted this as sexual petting.
- D
received treatment at the hospital from 5 August 1991 to
12 August 1994, following which she went to live in a
substitute family. The applicants were allegedly refused access to D
during her hospitalisation.
- Meanwhile,
on 18 November 1991 the Social Welfare Board (sosiaalilautakunta,
socialnämnden) decided to place D in public care on account
of a suspicion that she had been sexually abused. The applicants
unsuccessfully challenged the public care decision in the
administrative courts. It appears that the Supreme Administrative
Court rendered its decision in 1995.
- The
social welfare officials allegedly told the applicants that the girl
would return to live with them if they assumed responsibility for the
situation and acknowledged the abuse. Although the applicant father
was allegedly not guilty of any abuse, on 23 October 1991, he
admitted the abuse to the social welfare officials and a psychiatrist
in order to have D return home. He did not describe the nature of the
abuse. On 7 May 1992 he withdrew his admission as he felt that
he could not bear having this lie on his conscience for the rest of
his life.
- In
1995 the applicants lodged an application with a view to having the
public care terminated. In the course of those proceedings, on
21 March 1995, the Social Welfare Board reported to the
police the alleged sexual abuse committed in 1990-91. As to the fact
that several years had passed since the initial suspicion had arisen,
the Board explained that it had refrained from taking criminal action
in order to afford the applicants an opportunity to seek therapy. If
the therapy had proved successful, the public care could have been
terminated and D could have returned to live with the applicants. The
Board apparently considered that the applicants' therapy had proved
unsuccessful.
B. Criminal proceedings
1. The pre-trial investigation
- As
noted above, the alleged sexual abuse was reported on 21 March 1995.
On 19 October 1995 the applicant father was questioned by the police.
He denied any abuse. D, now aged 11, was not questioned during the
pre-trial investigation. Nor was the father asked whether he wished
to have questions put to the girl. The investigation was completed on
17 February 1997.
2. The Pieksämäki District Court
- On
27 January 1998 the public prosecutor brought charges against the
father for sexual abuse of a minor and for sexual intercourse with a
descendant (lapseen kohdistuva haureus ja sukurutsa jälkeläisen
kanssa, otukt med barn och blodskam med avkomling).
- In
its written submission of 5 June 1998 to the District Court
(käräjäoikeus, tingsrätten) the Social
Welfare Board claimed compensation on behalf of D. It also submitted
a written medical opinion by Dr S.V., a psychiatrist, according to
which the hearing of D before the court would harm her development.
It appears that Dr S.V. had not seen D since 1992 or 1993.
- On
26 August 1998 the applicant father was summoned to the District
Court hearing. On 17 September 1998 he submitted his written
submission, denying the charges. He criticised the Social Welfare
Board for not having reported the alleged abuse sooner, given the
fact that the report had been based on a suspicion which had first
arisen in 1991. Further, he requested that D, now aged 14, be heard
before the court.
- At
the hearing on 28 September 1998 he denied the charges and maintained
that D should be heard either before the court or elsewhere. The
court refused the request, considering 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 made reference to the above written
medical opinion prepared by Dr S.V.
- The
court received oral evidence from the social welfare director L.K.,
the applicant mother, Dr S.V., E.V, a psychologist, Dr H-O.P., a
psychiatrist, A.V., a social worker, D's substitute mother and D's
teacher. E.V. gave evidence to the effect that she had heard about
the events from D herself. D had said that her father had tickled her
genital area and that she had tickled his penis which had risen
following which he had urinated on her hand. She had also said that
he had put his penis in her mouth and kept it there for a long time
until he had urinated into her mouth. D had also lain on top of her
father and his penis had been on her genital area. Dr H-O.P., L.K.
and A.V. testified to having been present when the applicant father
had admitted the alleged abuse. None of the witnesses had made any
observations on the alleged acts.
- The
court noted that the evidence produced before it was based on D's
statements to the medical personnel of the institution in which she
had been treated, and on circumstances that had been observed during
the observation. There was no forensic evidence as to the alleged
abuse. On the other hand, there was the admission by the applicant
father which had seemed authentic and true to the above witnesses.
The court concluded that the statements of Dr S.V. and E.V. proved
that the applicant father was guilty of the alleged offences. Having
regard to the seriousness of the charges, his admission alone did not
suffice to prove his guilt. However, it did not lack significance
since according to A.V. and L.K. it had been made voluntarily without
any pressure having been exercised on him; nor had he been misled.
- On
8 October 1998 the District Court convicted the applicant father as
charged and sentenced him to a suspended term of one year and two
months' imprisonment. He was ordered to pay compensation plus the
legal costs of D's representation.
3. The Eastern Finland Court of Appeal
- On
9 November 1998 the applicant father appealed, maintaining
that D should be heard. He also requested that the National Authority
for Medico-legal Affairs (terveydenhuollon oikeusturvakeskus,
rättsskyddscentralen för hälsovården) be
invited to interview her.
- The
Court of Appeal (hovioikeus, hovrätten) refused the
requests. It however held an oral hearing and received the same oral
evidence as had been presented to the lower court. Dr S.V. now
testified to having met D some weeks before the Court of Appeal
hearing and to having asked her about the alleged abuse. D had
replied that her father had not abused her sexually in any way. The
Court of Appeal also received oral evidence from the applicant
father.
- On
1 July 1999 the Court of Appeal amended the District Court's judgment
in that it rejected the charge of sexual intercourse with a
descendant. It upheld the rest of the lower court's judgment,
endorsing its reasoning. It did not comment separately on the
testimony of Dr S.V.
4. The Supreme Court
- On
30 August 1999 the applicant father appealed further,
maintaining that D should be heard in particular as she had denied
the sexual abuse to Dr S.V. some weeks before the Court of
Appeal hearing. He repeated his request that the National Authority
for Medico-legal Affairs be invited to interview the girl. He also
submitted a letter from D in which she stated that nothing improper
had taken place between her and her father.
- On
14 December 1999 the Supreme Court (korkein oikeus, högsta
domstolen) granted leave to appeal insofar as the compensation
claims were concerned and received the Social Welfare Board's reply
to the appeal.
- On
2 May 2000 the Supreme Court invited an expert opinion from the
National Authority for Medico-legal Affairs on, inter alia,
whether D could be heard before the court. On 12 September 2000 the
Authority received an expert statement running to 7 pages from its
standing expert, Dr E.R. It also invited an opinion by the
psychiatrist who had treated D, Dr S.V. It was received on 26
February 2001. As these opinions were partly contradictory in respect
of the question whether D could be heard before the court, the
Authority requested, on 5 March 2001, Dr E.R.'s comment on the
opinion of Dr S.V. It was received on 28 March 2001. The Authority
submitted its opinion to the Supreme Court on 4 April 2001 following
which it was communicated to the parties for comment.
- On
12 December 2001 the Supreme Court refused leave to appeal insofar as
the criminal aspects of the case were concerned. As to the
compensation claims, it quashed the lower courts' judgments and
remitted the case to the District Court as the Social Welfare Board
had lacked competence to represent D in the proceedings.
5. Second examination of the compensation claims
- On
14 December 2001 the case was restored to the District Court's
case-list.
- On
16 September 2002 the court, having held an oral hearing at which it
heard D, among others, ordered the applicant father to pay
compensation to D in the amount of 20,182 euros plus interest from
4 August 1991.
- The
applicant father and D appealed. On 24 August 2004 the Court of
Appeal, having held a hearing, revoked the lower court's judgment and
rejected the claims. In those proceedings D now aged 20 testified
that she had never been sexually abused by her father. No one
appealed.
- Meanwhile,
on 10 June 2002 when D reached the age of majority she moved back in
with her parents.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The pre-trial investigation
- The
Decree on Criminal Investigations and Coercive Measures (asetus
esitutkinnasta ja pakkokeinoista, förordning om förundersökning
och tvångsmedel; Act no. 575/1988) provides that when
questioned during a pre-trial investigation the child must be treated
with due respect having regard to his or her age and level of
development. Where possible, the interview should be carried out by a
police officer acquainted with that task. If need be, a doctor or an
expert must be consulted before the interview (section 11).
- The
Criminal Investigations Act (esitutkintalaki,
förundersökningslagen; Act no. 449/1987) provides that
questioning and other investigation measures requested by a party
must be carried out, if that party shows that there is a possibility
that these measures could have an effect on the case, provided that
the expenses so incurred are not disproportionate to the nature of
the case (section 12). The competence to decide on investigation
measures requested by a party lies with the head of investigation
during the pre-trial investigation and with the public prosecutor
after the case has been transferred to him or her (section 15(3)). A
pre-trial investigation has to be carried out in such a manner that
no one is placed under suspicion without due cause and no one is
unnecessarily subjected to harm or inconvenience. Nor must the rights
of those concerned be infringed more than is necessary for the
achievement of the purpose of the investigation (section 8).
- The investigator may
permit a party and his counsel to be present during the questioning
of another party or witness, provided this does not hinder the
investigation of the offence (section 32(1)). A party and his or her
counsel may, with the permission of the investigator, put questions
to the person being questioned in order to clear up the case. The
investigator may decide that the questions are to be put through him
or her. Also, the prosecutor may put questions to the person being
questioned. A party and his or her counsel have the right to request
the investigator to ask the person being questioned about matters
necessary for the clearing up of the case at other times also
(section 34).
- Before
the closing of the criminal investigation, the parties must be
afforded the opportunity to present to the criminal investigation
authority their statement on the material gathered during the
investigation, if this is conducive to hastening or facilitating the
hearing of the case in court. The statement is to be appended to the
investigation record (section 42).
B. The receipt of evidence in court
- The
Code of Judicial Procedure (oikeudenkäymiskaari,
rättegångsbalken) lays down the applicable rules on
receiving testimony.
- A
witness must give testimony orally before the court and must not
refer to a written testimony. Oral evidence given during a pre-trial
investigation may be read out when the witness in question is heard
by the court only if he or she retracts in court an earlier statement
or states that he or she is unable or unwilling to testify before the
court (chapter 17, Article 32; Act no. 571/1948).
- If
a person called as a witness is less than 15 years of age, is
mentally ill or mentally retarded, or his or her mental capacities
have otherwise been impaired, the court shall, taking into
consideration the circumstances, assess whether or not he or she may
be heard as a witness (Chapter 17, Article 21). Although the hearing
of evidence from children falls within the court's discretion, there
has been a long-standing practice not to hear evidence in court from
children under the age of ten.
- At
the time of the proceedings in question, there were no legal
provisions concerning the use as evidence of a video recording of a
statement given by a child during the pre-trial investigation. There
was however a practice to admit such recordings as evidence.
C. Subsequent amendments
- The
Code of Judicial Procedure was amended with effect from 1 October
1997 to the following effect. A statement in a pre-trial
investigation record or another document may as a rule not be
admitted as evidence in court. The court may exceptionally admit as
evidence such a statement, if the witness in question cannot be
questioned before the court (chapter 17, Article 11; Act no.
690/1997).
- The
Code of Judicial Procedure was again amended with effect from
1 October 2003 to the effect that the testimony of a person
under 15 years of age, or a mentally disturbed person, recorded on
audio or videotape during a pre-trial investigation may be used as
evidence if the accused has been provided with an opportunity to have
questions put to the person giving the testimony (chapter 17, Article
11(2); Act no. 360/2003). According to the explanatory report to the
relevant Government Bill (no. 190/2002), this new provision places
emphasis on both the idea that giving testimony before the court may
be detrimental to inter alia a child and on the importance of
respecting the rights of the defence.
- Chapter
17, Article 21 (as amended by Act no. 360/2003) of the Code of
Judicial Procedure reads with effect from 1 October 2003 as follows:
“(1) A person who has not attained the age of
fifteen or whose mental capacities have been impaired, may be heard
as a witness or for the purpose of obtaining evidence if the court
finds it appropriate and:
(i) if the hearing in person is of significant relevance
for the establishment of the facts of the case; and
(ii) the hearing is not likely to cause such suffering
or other harm to the person to be heard as could be detrimental to
the person concerned or his or her development.
(2) Where necessary, the court shall designate a support
person for the person to be heard, pursuant to the provisions of
chapter 2 of the Criminal Procedure Code (Act no. 689/1997).
(3) The person to be heard shall be questioned by the
court, unless the court finds particular reason to entrust the
questioning to the parties in accordance with the provisions of
section 33. The parties shall be provided with an opportunity to put
questions to the person to be heard through the intermediary of the
court or, if the court finds it appropriate, directly to the person
concerned. Where necessary, the hearing may take place on premises
other than the court room.”
- In
2003, the Criminal Investigations Act was supplemented with a new
section 39a (Act no. 645/2003) that entered into force on
1 January 2004 and reads as follows:
“The questioning of a victim or a witness must be
recorded on videotape, or by using other comparable audio-visual
means of recording, if there is an intention to use the statement
given in the interview as evidence in court proceedings, and where it
is not possible to hear the victim or the witness in person, due to
his or her young age or mental disturbance, without causing likely
harm to him or her. The special requirements set by the level of
maturity of the questioned person for the methods used, for the
number of participating persons, and for other conditions, must be
taken into account in the questioning. The person in charge of the
criminal investigation may decide that authorities other than the
investigators may, under the supervision of the investigator, put the
questions to the person being interviewed. The suspect must be
provided with an opportunity to put questions to the questioned
person. On the request of the suspect, he or she may also put the
questions through a legal counsel or other representative. However,
the investigator may order that the questions be put through his or
her intermediary.”
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION
- The
applicant father complained that the criminal proceedings had been
excessive in length and that D had not been heard at any stage of the
proceedings. He also complained that the courts had allowed the
Social Welfare Board to submit claims on behalf of D although it
lacked the competence to do so and that the public prosecutor and the
Social Welfare Board had only relied on witness evidence supporting
the charges, thus violating the equality of arms principle. Moreover,
in their submission of 10 October 2005 the applicants complained
about the length of the compensation proceedings ending with the
Court of Appeal judgment of 24 August 2004.
Article
6 reads insofar as relevant:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair and
public hearing within a reasonable time...
...
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 contested those arguments.
A. Admissibility
- The Court notes that the complaints about the length
of the criminal proceedings and the fact that D was not questioned
during the proceedings are not manifestly ill-founded within the
meaning of Article 35 § 3 of the Convention. It further notes
that they are not inadmissible on any other grounds. They must
therefore be declared admissible.
- The
applicant father also complained that the courts had allowed the
Social Welfare Board to submit claims on behalf of D although it
lacked the competence to do so and that the public prosecutor and the
Social Welfare Board had only relied on witness evidence supporting
the charges, thus violating the equality of arms principle. Lastly,
in their submission of 10 October 2005 both applicants
complained about the length of the proceedings ending with the Court
of Appeal judgment of 24 August 2004.
- Insofar
as the applicants complained about the length of the civil aspect of
the proceedings, the Court finds that the applicant mother cannot
claim to be a “victim” within the meaning of Article 34
of the Convention and, moreover, as regards both applicants, that
this complaint was introduced more than six months after the final
domestic decision for the purposes of Article 35 § 1 of the
Convention. It follows that this complaint must be rejected in
accordance with Article 35 §§ 3 and 4 and
Article 35 §§ 1 and 4 of the Convention
respectively.
- As
for the remaining complaints, the applicant father has not explained
how the fact that the Social Welfare Board, in addition to the public
prosecutor, lodged claims against him had violated his right to a
fair trial. Nor has he specified what evidence, in addition to the
testimony of D, should in his opinion have been produced before the
courts. Accordingly, this part of the application is manifestly
ill-founded for lack of substantiation and must be rejected pursuant
to Article 35 §§ 3 and 4 of the Convention.
B. Merits of the length complaint
- The
period to be taken into consideration began on 19 October 1995 when
the applicant father was questioned by the police and ended on
12 December 2001 when the Supreme Court refused leave to appeal
in the criminal case. It thus lasted almost six years and two months
for three levels of jurisdiction.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicants and the relevant authorities and what
was at stake for the applicants in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- The
Government argued that the criminal proceedings had been more complex
than the average case. The fact that there had been parallel
administrative proceedings concerning the care order had to some
extent prolonged the pre-trial investigation. Also the fact that the
applicant father had requested an expert opinion had prolonged the
proceedings by eleven months. There had been no periods of
unnecessary inactivity attributable to the courts or other
authorities.
- The
applicant father contested the Government's contention that there had
been public care proceedings running parallel to the pre-trial
investigation. Furthermore, the length of the proceedings could not
be explained in terms of the factual complexity of the case.
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Frydlender, cited above).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court considers
that in the instant case the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
C. Merits of the complaint concerning the rights of the
defence
- The
Government argued that D had the right pursuant to the Code of
Judicial Procedure not to testify against her father. She had
neurological problems and in her mental development she was below
normal. The experts consulted during the investigation and the trial
proceedings considered that D could not be heard in person because
she had not reached the normal level of development and that hearing
her would have jeopardized her treatment.
- The
applicant father considered that the Government's submission that D
could have refused to testify against her father was shocking in that
she had tried to use all the resources at her command to convince the
authorities that no act of incest had ever occurred. Her testimony
would have prevented the trial and the immeasurable distress and
suffering caused to the whole family.
- The
Court reiterates that all the evidence must normally be produced at a
public hearing, in the presence of the accused, with a view to
adversarial argument. However, the use in evidence of statements
obtained at the stage of the police inquiry and the judicial
investigation is not in itself inconsistent with paragraphs 1 and 3
(d) of Article 6, provided that the rights of the defence have been
respected. As a rule, these rights require that the defendant be
given an adequate and proper opportunity to challenge and question a
witness against him or her either when the statements were made or at
a later stage of the proceedings (see Saïdi v. France,
judgment of 20 September 1993, Series A no. 261-C, p. 56, §
43, and A.M. v. Italy, no. 37019/97, § 25, ECHR 1999-IX).
A conviction should not be based either solely or to a decisive
extent on statements which the defence has not been able to challenge
(see, mutatis mutandis, Doorson v. the Netherlands,
judgment of 26 March 1996, Reports of Judgments and Decisions
1996 II, p. 472, § 76). Article 6 does not grant the
accused an unlimited right to secure the appearance of witnesses in
court. It is normally for the national courts to decide whether it is
necessary or advisable to hear a witness (see, among other
authorities, Bricmont v. Belgium, judgment of 7 July
1989, Series A no. 158, p. 31, § 89).
- The
child complainant in this case should for the purposes of Article 6
§ 3 (d) be regarded as a “witness”, a term to be
given an autonomous interpretation (see Asch v. Austria,
judgment of 26 April 1991, Series A no. 203, p. 10, §
25), because her statements, as given to a psychologist in 1991, were
used in evidence against the applicant father.
- Criminal
proceedings concerning sexual offences are often conceived of as an
ordeal by the victim, in particular when the latter is unwillingly
confronted with the defendant. These features are even more prominent
in a case involving a minor. In the assessment of the question
whether or not in such proceedings an accused received a fair trial,
account must be taken of the right to respect for the private life of
the alleged victim. Therefore, the Court accepts that in criminal
proceedings concerning sexual abuse certain measures may be taken for
the purpose of protecting the victim, provided that such measures can
be reconciled with an adequate and effective exercise of the rights
of the defence (see Baegen v. the Netherlands, judgment of 27
October 1995, Series A no. 327-B, opinion of the Commission, p. 44, §
77). In securing the rights of the defence, the judicial authorities
may be required to take measures which counterbalance the handicaps
under which the defence labours (see Doorson, cited above,
p. 471, § 72, and P.S. v. Germany, no. 33900/96, §
23, 20 December 2001).
- The
Court observes that the applicant was never given an opportunity to
have questions put to the girl during the pre-trial investigation. In
fact, she was never questioned at all in the course of the
investigation. As to the proceedings in the District Court and the
Court of Appeal, it should be noted that the applicant requested her
attendance but his requests were turned down.
- The
child's statements given to the psychologist E.V. in 1991 constituted
the only evidence implicating the father. Not a single interview
between the psychologist and the girl had been recorded on audio or
video tape. It is surprising that the prosecution never made
arrangements to have a fresh interview recorded so as to allow the
court to observe the manner in which D reacted to the questions put
to her or interacted generally with the psychologist during the
interview. The psychologist repeated before the court what D had said
to her under observation (see paragraph 16 above). The psychologist's
statement was highly incriminating. As to the fact that the applicant
father had admitted the alleged abuse, the Court observes that the
admission, which was unspecific in nature, had been made four years
before the criminal investigation had been opened into the case and
in connection with public care proceedings. It was later retracted
and during the pre-trial investigation and the criminal proceedings
he had explained the circumstances in which it had been made (see
paragraph 9 above). The witnesses heard by the courts had made no
observations on the alleged acts (see paragraph 16 above). In
contrast to the case of S.N. v. Sweden (no. 34209/96,
ECHR 2002 V) in the present case neither the applicant
father nor his counsel had at any stage been afforded an opportunity
to have questions put to the child. An examination of the case file
does not disclose any particular circumstances which would have
prevented this. It is to be observed in this connection that at the
time of the pre-trial investigation D had been 11 years old and at
the time of the District Court hearing 14 years old.
- In
these circumstances, the applicant father's inability to question or
to have questions put to her involved such limitations on the rights
of the defence that he cannot be said to have received a fair trial.
Therefore
there has been a violation of Article 6 § 1 taken together
with Article 6 § 3 (d).
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicants further complained that their right to respect for their
family life had been violated in that they had been prohibited from
visiting D during her hospitalisation.
Article
8 of the Convention:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
- The
Court observes that D was hospitalised from 1991 to 1994. The
applicants have not shown that they took proceedings against the
restriction of access order or, if they had, that they lodged their
application with the Court within a period of six months from the
date on which the final decision was taken. It follows that this
complaint must be rejected under Article 35 §§ 1
and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“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.”
A. Damage
- The
applicants claimed 350,000 euros (EUR) as compensation for pain and
suffering.
- The
Government considered the claim exorbitant as to quantum.
- The
Court accepts that the length of the criminal proceedings and the
impossibility for the applicant father to have questions put to the
girl caused him 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 father EUR 4,500 in respect
of non-pecuniary damage.
B. Costs and expenses
- The
applicant father claimed EUR 10,246 for costs and expenses incurred.
The legal aid granted by the Council of Europe (EUR 850) had not been
deducted in calculating the claim.
- The
Government left it to the Court's discretion whether sufficient
detailed information to support the claims had been submitted, as was
normally required by the Court. The total amount of compensation for
costs and expenses should not exceed EUR 5,000 (inclusive of
value-added tax).
- The
Court reiterates that an award under this head may be made only in so
far as the costs and expenses were actually and necessarily incurred
in order to avoid, or obtain redress for, the violation found (see,
among other authorities, Hertel v. Switzerland, judgment of 25
August 1998, Reports 1998-VI, p. 2334, § 63).
The
Court finds that the claims have been fully substantiated only as far
as the fees and expenses amounting to EUR 4,083.80 (inclusive of
value-added tax) are concerned. As to the rest of the claims, no
documentation as required by Rule 60 of the Rules of Court has been
submitted. These claims must therefore be rejected. The Court also
notes that part of the applicant father's complaints has been
declared inadmissible. Taking into account the legal aid granted by
the Council of Europe and all the circumstances, the Court awards the
applicant father EUR 2,150 (inclusive of value-added tax).
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints concerning the length of
the criminal proceedings and the applicant father's inability to
question the complainant or to have questions put to her admissible
and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the length of the criminal
proceedings;
- Holds that there has been a violation of Article
6 § 1 of the Convention taken together with Article 6 §
3(d) of the Convention on account of the applicant father's inability
to question the complainant or to have questions put to her;
- Holds
(a) that
the respondent State is to pay the applicant father, within three
months from the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, the following
amounts:
(i) EUR
4,500 (four thousand five hundred euros) in respect of non-pecuniary
damage;
(ii) EUR
2,150 (two thousand one hundred and fifty 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;
- Dismisses the remainder of the claims for just
satisfaction.
Done in English, and notified in writing on 17 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
