Article 47 - Right to an effective remedy and to a fair trial
Key facts of the case:
6. The applicant was born in 1976. He is currently serving a prison sentence.
7. On 11 December 2007 A.K., a school psychologist, informed the police of her suspicion that nine-year-old E. had been sexually abused by her stepfather, the applicant. She had learned about the alleged abuse through E.’s schoolmate.
8. On 12 December 2007 E. was interviewed by a police investigator in the presence of the psychologist. According to E. her stepfather had repeatedly sexually abused her between September 2006 and 9 December 2007.
9. Also on 12 December 2007 criminal proceedings were initiated in respect of the alleged rape and physical abuse by the applicant of his stepdaughter E.
10. On 13 December 2007 E. was again interviewed by a police investigator in the presence of a social worker. On the same day E. was also examined by medical experts. According to their opinion E.’s hymen was intact and without injuries; there was minimal hyperaemia, which could have been caused by urine or mechanical influence. “A strange, unclean smell” that was unusual for a child was noted around her sexual organs. No traces of sperm or lubricant were discovered by a biology expert. E. had two haematomas on the backs of the knees and a scratch on her leg.
11. Also on 13 December 2007 the applicant was taken into custody.
12. On 14 January 2008 E. was examined by a psychiatrist and psychologist, who gave an expert opinion, according to which attending a court hearing would cause her psychological trauma and damage her health, and in a stressful situation her statements might not be consistent. In the opinion reference was made to E.’s medical history, which stated that she had been diagnosed with epilepsy.
13. On 31 January 2008 the applicant asked the investigator to inform him about the course of the criminal proceedings. He also requested that a confrontation be held between him and E. On 4 February 2008 the investigator replied that information about the preliminary investigation could only be released on the authority of a prosecutor, and that no such authority had been given.
14. On 14 February 2008 E. was interviewed for the third time, by two police investigators in the presence of a social worker. The interview was video recorded. At the beginning of the interview an investigator explained to E. that the interview was to be recorded so that they would not have to talk again about what had happened.
15. In a letter to the investigator dated 20 February 2008, the applicant, inter alia, noted that only confrontation with E. could help to clarify the matter. In her reply, dated 26 February 2008, the investigator did not address the question of confrontation.
16. During an interview with the applicant on 14 April 2008 the investigator read out parts of the record of E.’s interview of 14 February 2008. The record of the interview with the applicant does not indicate that he was offered an opportunity to put questions to E. or that he made such a request himself.
17. On 14 April 2008 a psychiatrist gave an additional expert opinion, according to which remote examination of E. would also cause her psychological trauma, and in a stressful situation there was no guarantee that she would give any statements. Reference was made to her age, personality type, emotional state, illness (epilepsy) and what she had gone through.
18. At the outset of the court proceedings both the prosecution and the defence requested that a number of witnesses be called, but neither of the parties requested that E. be called as a witness.
19. According to an expert opinion dated 11 February 2009 no DNA from the applicant was found on E.’s underwear.
20. During the trial, the Harju County Court heard several witnesses who knew E. or had heard about the events in question. A.K. (a psychologist who worked at the school E. attended) had heard from M.K. (E.’s teacher) that E. had told her friend that her stepfather had kissed her and that they had watched pornographic films at home.
21. G.I. (a teacher) and T.S. (a psychologist at a children’s refuge) gave statements about E.’s behaviour and the situation in the school. V.S. (E.’s ten-year-old friend) told what she had heard from E. M.K. (the teacher) had heard of the events from V.S.; she had also seen a male sexual organ made of play-dough by E. M.M. from the child protection service affirmed that E.’s behaviour indicated that she had been abused.
22. K.V. (the applicant’s father-in-law), and J.V. (the applicant’s wife) gave statements in support of the applicant.
23. In addition, the court heard an expert witness, K.G., who had carried out an internal examination of E. In respect of the “strange smell” noted at E.’s sexual organs she submitted that children had certain microflora; if that was interfered with by foreign substances or foreign objects – or sexual intercourse with a man – there would be a strange smell. She explained the essence of inter-labial intercourse and noted that in most cases of sexual abuse the abused children had no injuries. Other expert opinions were examined in writing. The court read out the transcripts of E.’s statements given during the preliminary investigation and the video record of the interview of 14 February 2008 was played at the hearing. The applicant’s request for E. to be examined at a hearing was rejected.
24. By a judgment of 27 February 2009 the Harju County Court convicted the applicant. In its judgment the court summarised E.’s statements, according to which the applicant went to the toilet at night and then changed beds, came to sleep in her bed and kissed her. On another occasion the applicant had undressed and told her to undress as well; they had gone to bed and the applicant had attempted to insert his sexual organ into hers; she had felt pain but the applicant had told her to bear it. On two occasions the applicant had told her to undress; he had lubricated her sexual organ and told her to sit on his erect penis. Once the applicant had told E. to satisfy him orally and on some occasions manually.
25. The County Court found, considering the expert opinion and in order to protect E., that it had been justified in reading out her statements and watching the video interview made during the preliminary investigation and not examining her in court. It noted: “During the criminal proceedings victim [E.] has given statements on three occasions. In the first two instances she was interviewed in the presence of a psychologist. Thereafter ... the health and mental condition of the nine-year-old girl was ascertained on the basis of an expert opinion, and two months later she was interviewed for the third time and the interview was recorded. On the basis of Article 291 (5) of the [Code of Criminal Procedure] the statements were read out at the hearing, because the court considered that the victim could not appear in court because of “another impediment” that could not be set aside: it is understandable that, in particular, attacks of a sexual nature cause harmful consequences for the personality, especially for minors, and that even for purely medical reasons it may be advisable to avoid recollection of such experiences; examination of sexual crimes may prove to be an ordeal for the victim. Supplementing her statements in the course of the following interviews by a nine-year-old victim, compared to her earlier statements, does not necessarily result in a finding that the statements were unreliable as evidence. Depending on the temporal distance, different interviewers and different emotional background, the degree of detail in reproducing the event may vary, particularly in the case of a child ... The court has not established such contradictions in the statements of the victim that would cause the statements to be unreliable. The child has given statements which are in accordance with her level of maturity, several teachers and psychologists ([T.S., M.M., A.K.]) considered that it was completely logical that the child did not want to talk about an unpleasant topic, and considering the child’s behaviour at the video recording the notion that the child had invented the whole story could be ruled out. The court does not have the slightest ground to doubt the truthfulness of the statements given by victim E. during the preliminary investigation. These [statements] are plausible, correspond to her age and are sufficiently thorough for to establishing that the events took place ...”
26. The County Court further analysed the testimony of the applicant’s wife and father-in-law, according to whom E. had not been at home together with the applicant at the times indicated by E. The court made reference to the particularities of children’s sense of time, noted that the establishment of the exact time of the events was not required in the particular circumstances of the case at hand, and concluded that E.’s statements were not disproved by the statements of the applicant’s wife and father-in-law. It found it implausible that E. had never stayed at home with only the applicant present.
27. The County Court further stated as follows: “The argument of the [applicant] that the victim had seen sexual intercourse between her parents and had watched films on the computer is not sufficient to explain the victim’s detailed statements about what happened during the intercourse. The victim has repeatedly reported in detail, and has described the feeling of pain which cannot be experienced by a child by merely watching a film or seeing sexual intercourse. Furthermore, the fact that the victim made a male sexual organ from play-dough at school proves one thing: the child has personally experienced sexual intercourse with an adult man. The sexual terms used by the victim (which the teachers have reported) also refer to a considerably deeper knowledge of sexual matters than is usual for girls of that age. The argument of the [applicant] that the victim could have obtained her sexual knowledge at school and, moreover, that there was a certain [A.] at school, with whom the victim had closer relations, are disproved by the statements of [V.S.]: [A.] was nine years old, smaller than [V.S.] and the girls had beaten [A.] when [A.] and [E.] had kissed. The [applicant’s] reaction to these statements by [V.S.] was characteristic: having heard at the court hearing that [A.], [a version referred to by the applicant], was a small nine-year-old boy, the [applicant] himself burst out laughing, which confirms the ridiculousness of the version offered [by him]. The court considers that all the [applicant’s] objections are groundless and not based on the established facts. Thus, the four episodes described in the indictment have been proved: on one occasion putting the penis into the mouth [of the victim] and on three occasions into [her] sexual organ. The court considers that the charges have been proved in full, including the episode of 9 December 2007, because there is nothing except the statements of the interested persons to prove that the victim and [the applicant] were never alone together at home. During the trial the court has become convinced that the victim’s statements are truthful and they are not refuted by the statements of [J.V.] and [K.V.] ... ... According to the Supreme Court’s judgments ... the defining criterion [for rape] is that at least one party’s sexual organ is involved. The [applicant’s] sexual organ was involved. According to the expert opinion there could have been inter-labial intercourse in the present case, in the course of which a penis is introduced between the labia and this is to be considered sexual intercourse.”
28. The County Court concluded that the charges against the applicant had been proved in respect both of repeated rape and physical abuse of E. The applicant was sentenced to eight years and three months’ imprisonment.
29. Both the applicant and his lawyer appealed. They complained, inter alia, that the defence had not had the opportunity to put questions to E., the only person on whose statements the applicant’s conviction had been based.
30. By a judgment of 17 June 2009 the Tallinn Court of Appeal upheld the County Court’s judgment. In respect of the complaint that the defence had had no opportunity to put questions to E., the Court of Appeal noted: “During the preliminary investigation, when the [applicant] was interviewed as a suspect, he was presented and familiarised with the written record of victim [E.’s] interview. Neither the accused nor his lawyer made any requests ... In the indictment drawn up by the prosecutor and sent to the lawyer, the accused and the court a list of persons called to the court by the prosecutor was set out; the victim [E.] who was a minor, was not named ... Nor was [E.] named in the list [of witnesses called by the lawyer and the accused] ... In the present case, experts, a child psychiatrist and a psychologist, have given their opinion that participation in the court hearing of [E.] who suffers from epilepsy, would cause her considerable psychological trauma, damage to her health and in the situation of heightened stress the consistency of her statements could not be guaranteed ... An expert, child psychiatrist has given an opinion that considering [E.’s] age, particularities of mind, emotional state, serious illness and what she had gone through, a remote interview would also cause her psychological trauma, and in a situation where she would be under heightened stress it could not be guaranteed that she would be able to make statements at all ... The [court] finds that in the present case the measures restricting the right of defence were indispensable, and the County Court lawfully declined to summon to the hearing the seriously ill ten-year-old child, on the basis of the opinions given by medical experts.”
31. The Court of Appeal further rejected the argument of the defence that the time of the incriminated acts had not been specified with sufficient precision in the charges. It noted that the period between the summer of 2006 and  December 2007, as stated in the charges, resulted from the nature of the acts and the personality of the victim, who was only nine years old at the material time. According to the experts, it was extremely difficult for someone of that age to give a precise time for past events.
32. As regards the merits, the Court of Appeal agreed with the County Court’s findings, and deemed it unnecessary to repeat the reasoning in full. It noted, inter alia: “The [County] Court has sufficiently clearly reasoned why it considers trustworthy the victim’s statements made during the preliminary investigation, it has assessed the evidence as a whole ... and has given reasons why it does not consider trustworthy the statements given by the accused, his wife [J.V.] and witness [K.V.]. The County Court has also disproved the appellants’ arguments that the use by a nine- or ten-year-old child of expressions containing detailed description of sexual life [and] description of the conduct of [her] stepfather are mere fantasy or that [this] knowledge has been obtained from the school, where a nine-year-old boy had kissed the victim. In this context the [County] Court has lawfully relied on an [expert opinion] according to which the victim was not particularly inclined to invent things and had an adequate contact with the real external world ...”
33. The Court of Appeal went on to deal with the expert opinions concerning the DNA and medical examinations. In respect of the medical expert opinion, the Court of Appeal noted that E.’s hymen had been found to be intact, but at the same time a “strange, unclean” smell and minimal hyperaemia had been noted. It referred to the expert’s opinion that these findings could imply that sexual intercourse had taken place with a man or that penetration with a mechanical object had taken place. Furthermore, reference was made to the medical expert’s opinion according to which the majority of sexually abused children did not have injuries to the hymen. The Court of Appeal considered that the fact that the applicant’s DNA had not been found on the victim’s underpants had no decisive importance.
34. In an appeal to the Supreme Court the applicant’s lawyer reiterated that the defence had had no opportunity to put questions to E. It was noted that during the preliminary investigation the applicant had on several occasions asked for a confrontation with E., but these requests had been disregarded. The applicant had initially not requested that E. be brought to court, as he had thought that the incoherent statements she had made during the preliminary investigation would not weigh against him and he had not wished to traumatise the child. Nevertheless, at the hearing a request for E. to be examined had been made, together with proposals on the conduct of the examination in such a manner as not to harm the child (video interview, putting questions through the court). The County Court had rejected the request without giving any reasons.
35. On 9 September 2009 the Supreme Court refused the applicant leave to appeal.
Results (sanctions) and key consequences of the case:
... THE COURT
1. Declares unanimously the complaint under Article 6 §§ 1 and 3 (d) concerning the applicant’s lack of an opportunity to put questions to the witness admissible and the remainder of the application inadmissible;
2. Holds by five votes to two that there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention;
3. Holds by five votes to two
(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, EUR 5,200 (five thousand two hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
EU Charter of Fundamental Rights - Article: 47 ; European Convention of Human Rights - Article 6 ; in particular paras. 43-44