The ECHR ruling of June 22, 2021 in the case "R.B. v. Estonia" (complaint No. 22597/16)
In 2016, the applicant was assisted in preparing the complaint. Subsequently, the complaint was communicated to Estonia.
The case is being appealed against the failure to explain to a four-year-old girl her duty to tell the truth and her right not to testify against her father, which led to the exclusion of the girl's testimony from the case file and the acquittal of her father in the sexual abuse case. The case involved a violation of the requirements of article 3 of the Convention.
THE CIRCUMSTANCES OF THE CASE
The applicant, who was about four and a half years old at the time of the circumstances of the case, reported that she had been the victim of sexual violence by her father. During the investigation, two video recordings of conversations with the applicant were made. None of them explained to her about her right not to testify against a member of her family and about her obligation to tell the truth, as required by the norms of the procedural legislation of Estonia. Given the applicant's age, she was not summoned to the court to testify: video recordings of conversations with the applicant were shown at the hearing, which were examined by the courts of the first and second instances. Subsequently, the applicant's father was convicted.
The applicant's father appealed the verdict to the Supreme Court of Estonia, which decided that the failure to explain to the applicant before the start of conversations with her her duty to tell the truth and her right not to testify against her father was of such importance that her testimony, which was decisive evidence in the trial, was inadmissible. Since this flaw could not be eliminated by sending the case for review to lower courts, where the child could not testify, the exclusion of key evidence from the case file led to the acquittal of the accused.
LEGAL ISSUES
Regarding compliance with articles 3 and 8 of the Convention. The complaint concerned procedural violations in the criminal case as a whole, including the investigator's failure to explain to the applicant her procedural rights and obligations, and the reaction of the Estonian Supreme Court to these violations, which led to the exclusion of the applicant's testimony from the case file and the acquittal of the alleged perpetrator on procedural grounds.
The general rules on the interrogation of witnesses established in Estonian legislation also apply to the interrogation of children. Nevertheless, in practice it is recognized that during the interrogation of witnesses who are children, when explaining to them their rights and obligations, it is necessary to take into account the age of the children and their level of understanding of the situation. In this regard, according to applicable international instruments, criminal investigations and proceedings should be conducted in a manner that best protects the interests and rights of children, which requires targeted protection measures against child victims in criminal cases. In this context, it is important that the States parties to the Convention establish procedural rules that ensure and protect the testimony of children (see the Ruling of the European Court in the case "G.U. v. Turkey" (See: The Ruling of the European Court in the case "G.U. v. Turkey" (G.U. v. Turkey) dated October 18, 2016, complaint No. 16143/10)).
In the present case, it was not disputed that the investigator did not provide the necessary explanations to the applicant during her interrogation as a witness when she was a child in the criminal case. The entire criminal case was based essentially on the credibility of the applicant's testimony. However, the Supreme Court of Estonia completely excluded these statements from the evidence in the case on procedural grounds, citing the lack of required explanations from the investigator. Since the verdict was decisively based on the applicant's testimony and it was not possible to eliminate the shortcomings associated with the testimony, the accused should have been acquitted.
In addition to the question of whether the clarification in question should be considered necessary in all cases similar to the present one, the decision of the Supreme Court of Estonia, together with the shortcomings committed by the investigator, damaged the effectiveness of the prosecution of the alleged crime. This situation arose for the reason that, given the lack of the possibility of reconsideration of the case in lower courts, the Supreme Court of Estonia did not have any opportunity to establish the factual circumstances of the case and consider the guilt of the alleged offender on the merits.
In order to effectively protect the rights of children in accordance with international standards, it is essential to provide guarantees for their testimony both at the investigation stage and at the trial stage. Estonian legislation in the field of information that must be communicated to witnesses before giving evidence did not distinguish between witnesses on the basis of their age and, thus, did not contain exceptions or special provisions for witnesses of child age. According to the Guidelines of the Committee of Ministers of the Council of Europe on Child-friendly Justice (See: Guidelines of the Committee of Ministers of the Council of Europe on Child-friendly Justice and the Explanatory Memorandum thereto. Adopted by the Committee of Ministers of the Council of Europe on November 17, 2010. at the 1098th meeting of Ministerial representatives //CM/Del/Dec(2010) 1098/10.2abc-app6.), if less stringent standards on testimony or other child-friendly measures are applied, these measures should not in themselves detract from the value of the child's testimony or evidence obtained from him without prejudice for the rights of the defense party. However, in the present case, the applicant's testimony was declared inadmissible solely due to strict observance of procedural norms that did not distinguish between an adult and a child.
Thus, there were serious shortcomings in the Estonian authorities' procedural response to the applicant's complaint of sexual abuse by her father, which did not sufficiently take into account her particularly vulnerable situation and related needs as a young child in order to provide her with effective protection as an alleged victim of sexual crimes. Accordingly, without expressing its opinion on the guilt of the accused, the European Court concluded that the method of activating the criminal law mechanism in the present case as a whole (which led to the cancellation of the sentence on procedural grounds) contained such a number of shortcomings that it violated the positive obligation of the Estonian authorities provided for in Articles 3 and 8 of the Convention.
RESOLUTION
The case involved a violation of the requirements of article 3 of the Convention (adopted unanimously).
COMPENSATION
In the application of article 41 of the Convention. The European Court awarded the applicant 16,300 euros in compensation for non-pecuniary damage.