Last Updated on June 22, 2021 by LawEuro
Information Note on the Court’s case-law 252
June 2021
R.B. v. Estonia – 22597/16
Judgment 22.6.2021 [Section III]
Article 3
Effective investigation
Positive obligations
Failure to advise 4-year old child of her duty to tell the truth and her right not to testify against her father, leading to exclusion of her testimony and father’s acquittal of sexual abuse: violation
Article 8
Positive obligations
Failure to advise 4-year old child of her duty to tell the truth and her right not to testify against her father, leading to exclusion of her testimony and father’s acquittal of sexual abuse: violation
Facts – The applicant, who was about four and a half years old at the relevant time, reported that she had been the victim of sexual abuse by her father. Two video-recorded interviews were conducted with the applicant during the pre-trial stage. In neither was she advised by the investigator of her right not to testify against a member of her family and of the duty to tell the truth, such instructions being required by the rules of criminal procedure in Estonia. Given her young age, she was not called to testify in court: the video-recorded statements were disclosed at the hearings and viewed by both first-instance and appellate courts. The applicant’s father was subsequently convicted.
The applicant’s father appealed to the Supreme Court contesting his conviction. The Supreme Court considered that the failure to advise the applicant before her interviews of the obligation to tell the truth and her right to refuse to testify against her father was of such importance as to render inadmissible her testimony, which was decisive evidence in the case. As the omission at issue could not be remedied by remitting the case to the lower-instance courts, where the child victim could not be heard, the exclusion of the main evidence resulted in the acquittal of the accused.
Law – Articles 3 and 8:
The complaint concerned procedural deficiencies in the criminal proceedings as a whole, including the failure of the investigator to inform the applicant of her procedural rights and duties, and the reaction of the Supreme Court to that failure resulting in the exclusion of her testimony and the acquittal of the alleged perpetrator on procedural grounds.
In Estonia, the general rules set out in the law for questioning witnesses were also applicable to child witnesses. Nevertheless, in practice it had been recognised that when questioning child witnesses and advising them of their rights and duties, account had to be taken of their age and level of understanding. In that connection, under the relevant international instruments, investigations and criminal proceedings had to be carried out in a manner which protected the best interests and rights of children, such protection requiring the adoption of child-friendly and protective measures for child victims in criminal proceedings. In that context it was important that the States had in place procedural rules guaranteeing and safeguarding children’s testimony (see G.U. v. Turkey).
In the present case, it was undisputed that the investigator had not given the required instructions to the applicant when interviewing her as a child witness following the institution of the criminal proceedings. The whole criminal case had rested essentially on the credibility of the applicant’s testimony. However, the Supreme Court had excluded that testimony entirely from the body of evidence on procedural grounds relating to the investigator’s failure to provide the required warnings. Since the conviction had been to a decisive extent based on the testimony of the applicant and since there had been no way of remedying the failure associated with it, the accused had had to be acquitted.
Aside from the question whether such warnings could be considered appropriate at all in a case such as the present, the Supreme Court’s decision, combined with the investigator’s omission, had undermined the effective prosecution of the alleged offences. This was because, having regard to the impossibility to re-examine the case in the lower-instance courts, it had ultimately been incapable of establishing the facts of the case and determining the question of culpability of the alleged offender on the merits.
For the effective protection of children’s rights in line with international standards, it was essential to safeguard their testimony both during the pre-trial investigation and trial. Estonian law, as regards the warnings to be given to witnesses, did not make a distinction between witnesses according to their age, and thus did not provide for exceptions or adaptions for child witnesses. According to the Council of Europe Committee of Ministers’ Guidelines on child-friendly justice, where less strict rules on giving evidence or other child-friendly measures applied, such measures should not in themselves diminish the value given to a child’s testimony or evidence, without prejudice to the rights of the defence. However, in the present case the applicant’s testimony had been found to be inadmissible precisely because of the strict application of procedural rules which had made no distinction between adults and children.
In view of the above, there had been significant flaws in the domestic authorities’ procedural response to the applicant’s allegation of rape and sexual abuse by her father, which had not sufficiently taken into account her particular vulnerability and corresponding needs as a young child so as to afford her effective protection as the alleged victim of sexual crimes. Accordingly, without expressing an opinion on the guilt of the accused, the Court concluded that the manner in which the criminal-law mechanisms as a whole had been implemented in the present case, resulting in the disposal of the case on procedural grounds, had been defective to the point of constituting a violation of the respondent State’s positive obligations under Articles 3 and 8.
Conclusion: violations (unanimously).
Article 41 : EUR 16,300 in respect of non-pecuniary damage.
(See also G.U. v. Turkey, 16143/10, 18 October 2016)
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