FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 27744/95
by T., A., J. and S.
against Finland
The European Court of Human Rights (Fourth Section), sitting on 9 September 2003 as a Chamber composed of
SirNicolas Bratza, President,
MrM. Pellonpää,
MrM. Fischbach,
MrR. Maruste,
MrS. Pavlovschi,
MrL. Garlicki,
MrJ. Borrego Borrego, judges,
MrM. O’Boyle, Section Registrar,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application lodged on 12 June 1995,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The applicants are Finnish nationals. T. and A. are the father and the mother of J. and S. and were born in 1949. J. and S. were born in 1975 and 1985, respectively. The applicants reside in Helsinki. They are represented before the Court by Mr Olli Pohjakallio, a lawyer practising in Helsinki, advised by Ms Anu Suomela of the Society for Family Rights in Finland (PESUE). The respondent Government were represented by their Agent, Mr Arto Kosonen, Director in the Ministry for Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1.Public care proceedings, access restrictions and criminal proceedings against T.
In September 1990 the parents and the social welfare authority were informed by day care staff that S. had been playing “sexually coloured” games with other children. The family was interviewed at the Helsinki North-East Family Advice Centre between October 1990 and January 1991. S. was interviewed on eight occasions, each interview lasting one hour. S. stated that an older boy had initiated the games.
The Family Advice Centre having been unable to establish the reason behind his “symptoms” S. was, on 29 January 1991, admitted to the A. hospital for further examinations. Up to 25 March 1991 he underwent at least 18 one-hour interviews and related examinations by psychologist M.S.
According to the applicants, there was a complete prohibition on any unsupervised contact between S. and his family from 29 January 1991 to 16 September 1993. This is contested by the Government (see below).
In February 1991 the parents and the social welfare authorities were informed of the hospital staff’s conclusion that S. had been subjected to incest by T. It was suspected that T. had also sexually abused J.
T., A. and J. denied the accusations. In March 1991 the parents nevertheless consented to the placement of S. in public care in a reception home as an open-care support measure based on Section 14 of the Child Welfare Act (lastensuojelulaki, barnskyddslag 683/1983, as amended by Act 13/1990). A decision confirming this measure was taken by the Helsinki Social Welfare and Health Care Board on 16 March 1991. On 26 March 1991 S. was transferred to the H. children’s home.
According to the applicants, the parents agreed to this placement as the authorities had agreed that the whole case would be explored anew. In the end no such fresh investigation was allowed.
According to the applicants, the authorities chose a therapist for S. without even discussing the matter with the parents, though it had been agreed on 20 February 1991 to appoint a therapist whom both parties could accept.
According to the applicants, the authorities promised A. that S. would be returned home if T. moved out. The parents therefore filed for divorce in April 1991.
On 23 April and 4 June 1991 the parents met with social welfare officials to discuss the care of S.
On 20 June 1991 the parents requested that S. be discharged from the children’s home. This request was refused and on 26 June 1991 S. was placed in public care by decision of the Director of the Social Welfare and Health Care Board. This provisional care order was endorsed by the Board on 27 June 1991.
On 20 June 1991 the parents were also notified of the forthcoming meeting of the Social Welfare and Health Care Board. They were furthermore invited to familiarise themselves with the Board’s case-file and to file written submissions.
On 11 July 1991 the Board, in pursuance of section 17 of the Child Welfare Act, ordered public care of S. for an indefinite period of time, with a review of the care plan to take place at the latest in September 1991. The Board took note of an opinion of 12 March 1991 by psychologist M.S. and Dr P.T. and another expert to the effect that there was an incestuous relationship at least between S. and T. S. was deemed to be in need of safe conditions away from his home, so as to prevent a continuation of the incestuous relationship. S. was also in need of therapy which in order to be successful required that he be provided with stable conditions. Public care had become necessary as the parents, as of 20 June 1991, no longer accepted the placement of S. in a children’s home in the form of an open-care measure.
The applicants contend that, following the care order, all unsupervised access was prohibited without their having been heard and without the issuing of any written decision which they could have appealed against.
The Government point to the terms of the care order according to which S. would be meeting with the other applicants in the children’s home at agreed hours. The Government further refer to statements by staff in two children’s homes according to whom S. met his parents regularly during the whole duration of his placement. He also met his brother, his grandfathers, two aunts as well as his mother’s friend.
On 11 July 1991 the Social Welfare and Health Care Board also decided to request an investigation into whether S. had been the victim of a sexual offence. The Board noted that T. and A. had refused to take any action facilitating the investigation of a possible crime. It again referred to the expert opinion of 12 March 1991 concluding that there had been an incestuous relationship at least between S. and T. On the basis of the pre-trial investigation the public prosecutor subsequently charged T. with sexual abuse.
The applicants’ requests at the Board’s meeting on 11 July 1991 that S. be returned home, that a proper investigation be conducted and that proper therapy be arranged for S. were all rejected.
The care order was submitted to the County Administrative Court (lääninoikeus, länsrätten) of Uusimaa for approval. In his appeal T. argued that S. had been examined in a prejudged manner, as already at the outset the hospital staff had taken the view that he had been subjected to incest. The examination of the family members at the H. hospital had resulted in no finding of incest committed either against S. or J.
On 9 August 1991 the A. hospital, while granting T. access to the official case-records (sairauskertomus, sjukberättelse) concerning S., refused T. access to all other material gathered during the examination of S. On 12 September 1991 the hospital advised T. that he could complain about the refused access to the local Health Care Board.
Following a complaint by T., the National Social and Health Care Board (sosiaali- ja terveyshallitus, social- och hälsovårdsstyrelsen), on 1 November 1991, found that under the Act on Publicity of Official Documents (laki yleisten asiakirjojen julkisuudesta, lag om allmänna handlingars offentlighet 83/1951 (section 8) the parents should have been informed immediately both of the grounds for the hospital’s refusal of access to material and of the procedure for challenging that refusal.
In 1993 the parents obtained from the prosecutor the material collected during S.’s examination in 1991 and to which they had been refused access by the A. hospital. It transpired from the video tapes that the presumption of the Family Advice Centre was that S. had been subjected to incest. By the time the parents obtained the material the pre-trial investigation concerning that offence had already been completed.
Meanwhile, on 2 September 1991 S. was transferred to another children’s home. Each parent was granted access separately during one hour on Tuesdays and Thursdays and during two hours on Sundays. The grandmother was allowed to visit S. once a week and others could pay visits based on an agreement with the competent officials. The visits were supervised. No written decision restricting the access rights was made. Any conversation relating, for instance, to the therapy S. was receiving was allegedly interrupted by the supervising staff. The parents were allegedly told that S. might remain in public care until he would reach the age of majority.
In October 1991 the parents’ divorce acquired legal force. J. was ordered to remain in the joint custody of the parents, whereas custody of S. was granted solely to A. In February 1992 T. and J. moved out of the family home.
On 13 March 1992 T.’s appeal against the care order was refused by the County Administrative Court following the witness examination of two staff members at the A. hospital and three other experts called ex officio or by T. The court had at its disposal the video footage made during the initial interviews at the Family Advice Centre, the audio tapes of the examinations at the A. hospital as well as the telephone conversations between S. and his family. The court noted that the examinations both at the Family Advice Centre and the hospital had to some extent been conducted in a suggestive manner and some of S.’s statements had been wrongly interpreted. Although the conclusion by the hospital staff that S. had been subjected to incest could not therefore be fully endorsed, the investigation results could not be wholly disregarded.
The court went on to find as follows:
“On the basis of the child’s behaviour, words, gestures and symptoms at the day care centre, the family welfare office and the hospital, and also on the basis of the observations made during the examination [of S.] at the hospital, it can be found that [his] sexual integrity has been violated. In light of the findings made during the examination of [S.] and considering other documentary evidence, it is not likely that the abuse has taken place outside the family home. In light of the results of the psychological examinations carried out on the other family members, one cannot exclude the possibility that the abuse has taken place in the home.
Accordingly, the conditions in the home seriously endanger the health and development [of S.] and support measures of open care are not possible, considering the reason for the care order. At this stage it can be considered that substitute care is in the best interests of the child. There is thus no reason to alter the ... decision.”
The parents appealed, arguing that the opinions of the specialists at the H. hospital had been disregarded. Reference was further made to the witness testimonies obtained during the criminal proceedings against T.
In the autumn of 1992 J. interrupted his schooling due to a depression resulting from the incest accusations against himself and T.
On 8 October 1992 the Helsinki City Court (raastuvanoikeus, rådstuvurätten) acquitted T. of the incest charges after hearing fourteen witnesses, most of whom had either examined or cared for S. during his placement outside the family home. The City Court found it established that S. had been subjected to sexual abuse, but noted the contradictory testimony as to whether the incest had been committed by T. The results of the examinations of S. were also open to interpretations.
On 12 and 22 October 1992 A. demanded that the care of S. be terminated in light of T.’s acquittal and his having moved out of the home.
On 10 December 1992 the Social Welfare and Health Care Board refused the request, considering that the conditions for continued public care were still met. The Board noted, inter alia, that S. had been placed in public care “due to incest committed within the family”. A return of S. into the family home would be possible only “if each family member took responsibility for what had happened”.
On the same day the Board also formally restricted access to S., refusing A.’s request to care for S. over Christmas 1992 and ordering that the family members’ meetings with S. were to be arranged solely in the children’s home.
According to the applicants, they were not heard prior to the Board’s decisions.
On 28 December 1992 the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) refused the parents’ appeal against the County Administrative Court’s decision of 13 March 1992.
On 19 May, 15 June and 2 September 1993 the County Administrative Court held an oral hearing in respect of the applicants’ appeal against the Social Welfare Board’s decision of 10 December 1992 to maintain the care of S. and to impose an access restriction. On 27 May 1993 the court heard S. in private in the T. children’s home. At its main hearing the court heard S.’s therapist K.L. and four other officials as witnesses. K.L. testified that in her opinion both parents had committed incest with S. The court furthermore examined psychologist H.H. and Senior Physician P.T. at T.’s request. At the request of A. the court also examined psychologist O.W. and R.L.
In a submission to the court dated 28 June 1993 the Social Welfare Authority stated inter alia (in response to written questions from the court):
“4. What should the mother do in order that the child could return home?
The parents should admit what they have done to S. and take responsibility for their acts. They should come to realise that, from the point of view of S., uncovering the incest, preventing it from continuing and organising [his] care in the form of public care were absolutely necessary with respect to [his] security. It is necessary that the therapy which [S.] will most likely be needing during a longer period of time can be brought to an end in secure conditions. In a situation where the child still retains his sense of reality and is not psychotic, he should not be placed in a situation requiring him to deny reality. This is the danger if none of the parents – neither the mother nor the father – in no way admit to what has happened, but deny everything, as has been the case up till now. S. cannot return to either parent, because neither of them protects him. The reality, for the time being, seems to be that both parents deny all that has happened. Only afterwards, if the previously stated process starts within the parents, can we begin to assess the situation anew. “
On 2 July 1993 the Social Welfare Board, at the suggestion of a psychiatrist at the A. hospital, further restricted the parents’ access to S. to one three-hour-long supervised visit per month. The parents were further prohibited from telephoning S. The psychiatrist considered that the parents had been manipulating S. during their visits.
The applicants’ appeal against this access restriction was joined to the appeal already under examination by the County Administrative Court.
According to the Government, this access restriction had been necessary in light of the changes in S.’s behaviour after the court hearing on 15 June 1993.
According to the applicants, S.’s behaviour had not changed. They refer to the testimony of several staff of the children’s home and to S.’s own statements to a judge of the court to the effect that he wished to see his parents as often as possible.
According to the applicants, this access restriction was also imposed without their having been heard and without any written decision having been issued in so far as the restrictions concerned relatives other than the parents. A list drawn up by S. himself indicating those he wished to be visited by was disregarded by the social authorities.
The applicants further refer to a note by a staff member the children’s home attesting to her refusal to allow one of the applicants’ representatives to meet with S. The note read as follows:
“In compliance with the instructions given I ... have today prevented Ms Anu Suomela from meeting S. on 22 June 1993. ...
The persons close to S. who are allowed to visit him are: [his] father, mother, parental grandfather, maternal grandmother as well as Stara and Maria (his father’s sister).”
On 19 July 1993 the director of the children’s home restricted the right of access in respect of S.’s other relatives during the period from 3 July to 3 August 1993. Visits were completely prohibited for the month of July.
On 6 August 1993 a negotiation was held in the children’s home, where, according to the Government, the access arrangements between S. and some persons close to him were agreed.
On 2 September 1993 the County Administrative Court concluded its oral hearing in full court. On 8 September 1993 a judge of the court heard S. in private outside the T. children’s home.
On 16 September 1993 the County Administrative Court upheld the public care order. The court considered, on the one hand, that T.’s acquittal of the incest charges was not decisive when assessing whether the public care of S. needed to be continued. The home environment had seriously jeopardised S.’s development. On the other hand, the family circumstances had changed since S.’s placement in public care, his custodian A. now being capable of providing the necessary care. Since S.’s possible return to live with A. was to be prepared and gradually implemented, the public care order could not yet be revoked. In extenso the court reasoned as follows:
“The examination of the case before the County Administrative Court and the above-mentioned records of the Helsinki City Court have shown that [the applicants’] family situation was difficult before the decision on public care was made, as a result of the mother’s illness and illegal dismissal and because of the parents’ marital problems. At that time S. was insecure and neglected. The question of guilt to be decided in criminal proceedings as such has no decisive significance for the assessment of the need for public care. The conditions at home have more relevance, as they have seriously endangered the child’s development so that his sexual integrity has been violated and his feeling of security has seriously been disturbed.
S.’s therapist K.L. has stated that during the therapy sessions S. brought up facts as showing that he had been the victim of sexual abuse in his home. According to witness statements, S. has clearly benefited from the therapy sessions as well as from the placement in the children’s home. In the light of the evidence adduced S. is still in need of therapy. When the County Administrative Court heard S. himself, he was not able to clearly express where he wished to live, but he mentioned that he had nothing against staying at the children’s home.
The external family conditions have changed after the order was made, as A. and T., the parents of S., were given a divorce on 21 October 1991, and custody was awarded to A. T. has moved out from the family home. A. has stated that she lives alone in the said apartment as [J.] moved out from home at the end of the summer of 1992. The changed conditions in the family and at home are relevant when the need for the continued public care of S. is assessed. The present family situation of [the applicants] has offered possibilities for developing the interaction and contacts between S. and his parents. The County Administrative Court finds that in the changed circumstances S.’s mother, as the child’s custodian, has the capacity to look after S. and his security.
When assessing the possibilities for terminating the public care of S. in the light of the best interests of the child, the duration of public care and the interaction between the child and the parents must also be taken into account. S. has been in public care from 11 July 1991. During its entire duration the parents of S. have been maintaining regular contacts with the child. When the County Administrative Court heard S. he expressed his attachment to his parents and his wish to visit his home. Considering the above-mentioned facts, efforts must be made to support the interaction between S. and his parents by letting S. visit the homes of his mother and relatives, the duration of these visits being extended in stages.
The termination of public care in a manner securing the best interests of the child requires, however, that S.’s possible return home is prepared and implemented in stages. At the same time it is necessary to monitor the effects of meetings between S. and his parents and of his holidays at home , and to support S. in facing the return to a home where the conditions have changed. Also the mother must be supported as the custodian.
In the opinion of the County Administrative Court, the [further] need for the public care of S. may not be [fully] assessed until experience has been gained from the closer interaction between the child and his parents. Therefore the County Administrative Court finds that at this stage the need the public care of S. still exists.”
In its decision of 16 September 1993 the County Administrative Court went on to revoke the access restrictions of 10 December 1992 and 2 July 1993 as being unlawful. It found that the Social Welfare and Health Care Board had in no way motivated the restriction ordered on 10 December 1992 or indicated its duration. The restriction ordered on 2 July 1993 had not been shown to be necessary in the interests of S., either in respect of its extent or in so far as visits could only take place in the children’s home under supervision. In respect of the last-mentioned restriction the Court noted, in particular, that psychiatrist A.H. had not examined S. before issuing her opinion of 1 July 1993. Nor had it been corroborated by the staff of the children’s home that S. had been expressing fear of his parents and an unwillingness to meet them. When heard in private by one of the judges S. had expressed his longing to go home and his wish to see his parents as frequently as possible.
The County Administrative Court further ordered the social authorities to allow unsupervised visits and to monitor their effect on S. A. was considered able to care for S. The parents began fetching S. from the children’s home every night and weekend.
The parents appealed in so far as the care order had been upheld.
According to the Government, the social welfare authorities started to prepare S.’s return to live with A. after the decision of 16 September 1993 had been made. For this purpose they established a group of experts which started its work in December 1993. One member of the group was nominated in accordance with the wishes of the parents, who also accepted the composition of the whole group.
In the criminal proceedings against T., the prosecutor’s and the Social Welfare and Health Care Board’s appeals were rejected by the Helsinki Court of Appeal (hovioikeus, hovrätten) on 8 February 1994. The court found that the Social Welfare Board had no standing to bring charges against T. As for the merits, the court found that the charges had to be examined mainly on the basis of S.’s own statements and the observations of his play, given that the investigations forming the basis for the charges had been limited to him alone. The court found that S. had been subjected to leading questions, in part exerting pressure on him. Some of his answers had been wrongly understood. During part of the investigation period S. had been isolated from his parents, which might have affected his behaviour negatively. In particular in view of the differing expert opinions concerning the investigations methods, the Court of Appeal could not find the charges proven.
On 3 June 1994 S. was returned to A.’s home and on 8 June 1994 the public care order was revoked by the Social Welfare and Health Care Board. On 23 January 1995 the Supreme Administrative Court refused the parents’ appeal in so far as it concerned the decision of 10 December 1992, upheld by the County Administrative Court on 16 September 1993, to continue the public care. The Supreme Administrative Court noted that the public care had ended on 3 June 1994 and that the conditions for revoking the care had not yet been met at the time of the challenged decisions.
2.Criminal proceedings initiated by the applicants
On 21 June 1994 the applicants initiated private prosecution proceedings and proceedings for damages against the City of Helsinki and eight officials who had taken part in organising S.’s public care, examinations and treatment. The applicants accused the officials as well as S.’s therapist inter alia of having abused their public office in subjecting S. to inappropriate investigation methods and in drawing erroneous conclusions from the resultant findings. The public prosecutor did not join the private prosecution but participated in the trial ex officio.
Hearings were held before the District Court (käräjäoikeus, tingsrätten) of Helsinki on 24 August and 2 November 1994. During the third hearing on 18 January 1995 the public prosecutor suggested that a police investigation be carried out into the alleged offences and that an opinion be obtained from the National Authority for Medico-Legal Affairs (terveydenhuollon oikeusturvakeskus, rättskyddscentralen för hälsovården; “the Medico-Legal Authority”).
No police investigation was conducted however and on 3 March 1995 the police requested the Medico-Legal Authority to submit an opinion. On 30 May 1995 the Authority requested senior physician S.H. to submit an expert opinion. He returned the documents on 5 July 1995 without however submitting any opinion. On the same day another request was made to professor E.R.
On 5 September 1995 the A. hospital was asked to provide the Medico-Legal Authority with the patient records, video tapes and any other relevant material which were then forwarded to E.R. This expert’s opinion was received on 27 October 1995.
On the same day the police reminded the Medico-Legal Authority that it had not yet submitted its opinion. On 16 November 1995 the police was informed that the Medico-Legal Authority had found it necessary to seek further expert opinions.
On 12 December 1995 the police again reminded the Medico-Legal Authority that its opinion was still outstanding.
On 15 May 1996 the Medico-Legal Authority requested child psychotherapist H-O.P. and psychologist S.T. to submit expert opinions. On 19 July 1996 the Authority reminded H-O.P. that no opinion had been received. S.T.’s opinion was received on 30 July 1996.
On 9 September 1996 the Medico-Legal Authority requested H-O.P. and S.T. to submit more detailed expert opinions.
On 18 October 1996 the police again reminded the Medico-Legal Authority that its opinion was still outstanding. H-O.P.’s opinion was received by the Authority on 31 October 1996.
On 14 January 1997 the Medico-Legal Authority submitted documentary evidence to S.T. in order to facilitate the preparation of a more detailed expert report. An expert meeting was organised by the Authority on 7 February 1997.
On 25 June 1997 the Medico-Legal Authority reminded H-O.P. that no opinion had been received from him.
On 30 June 1997 a supplementary opinion was likewise requested from E.R.
On 4 July 1997 H-O.P. was again reminded that that no further opinion had been received from him.
On 18 July 1997 and 8 August 1997 respectively the Authority received the supplementary opinions of E.R. and H-O.P.
Meanwhile, the case had been before the District Court on 31 May and 22 November 1995, 29 May and 4 December 1996 and 21 May 1997. On each occasion the case had been adjourned in anticipation of the Medico-Legal Authority’s opinion.
The Medico-Legal Authority’s opinion was delivered on 14 November 1997, its conclusion being that the investigation into the suspected sexual abuse of S. had been conducted in accordance with approved and generally applied practice in the beginning of the 1990s. For reasons of competence, the Authority limited itself to reviewing the professional conduct of child psychiatrist L.K. of the Family Advise Centre, of child psychiatrist R.H. at the A. hospital and of V.-M.T., senior physician at the said hospital. Referring to the expert opinions it had obtained, the Authority detected no errors or deficiencies in the conduct of those three officials, taking into account the practice applied at the relevant time.
Attached to the Authority’s opinion was a list of the material available to it for the purpose of drawing up its opinion. The material included minutes from the earlier proceedings before the Helsinki District Court and the Uusimaa County Administrative Court as well as various other material in the form of written statements, case records as well as audio and video recordings.
At its next hearing on 3 December 1997 the District Court heard as expert witnesses the three authors of the opinions submitted to the Medico-Legal Authority for the preparation of its own opinion.
The case was next heard on 14 January, 15-16 April, 2 June, 10-11 June and 26 August 1998. The subsequent hearing scheduled for 29 September 1998 was cancelled since the presiding judge had died.
The next hearings were held on 12 February, 10 March and 16 April 1999. The following hearing scheduled for 6 May 1999 was cancelled due to the presiding judge’s illness. The next hearings were held on 11 June and 2 September 1999.
According to the applicants, the presiding judge who had taken over the case towards the end of 1998 refused to allow any questions by the applicants’ representative as to the scientific qualifications of the experts consulted by the Medico-Legal Authority.
Four other expert witnesses were also heard in the District Court but the presiding judge who had taken over the case refused to allow the hearing of two counter experts proposed by the applicants (A. and H.-S.) and whereby they had sought to prove that the Medico-Legal Authority’s opinion had not been prepared in accordance with scientific standards.
On 29 October 1999 and after having dealt with the case on 23 occasions the District Court delivered its judgment, finding that none of the alleged offences had been proved by the applicants. The applicants were ordered to pay the defendants’ costs in the amount of FIM 840,000 (over EUR 140,000). This amount was accumulating FIM 7,000 in interest per month and the Bailiff levied execution on one third of A.’s and J.’s salaries.
The applicants appealed to the Helsinki Court of Appeal and requested a re-hearing. They proposed to hear experts A. and H.-S. They were granted two extensions of one month each in order to file and complete their appeal.
In its judgment of 27 March 2002 the Court of Appeal upheld the District Court’s conclusions without having held a re-hearing. As the lower court had applied the relevant provisions as in force on 1 October 1997 the Court of Appeal applied them likewise. As a consequence, it could have held an oral hearing under chapter 26, section 7 of the Code of Judicial Procedure had it found that necessary. It noted however that there was no dispute as to the contents of the written testimony recorded in the District Court’s minutes. Whereas no question arose as to the credibility of witnesses there was disagreement as to how the written expertise should be interpreted. Given that the joint opinion of A. and H.-S. had already been recorded in the minutes and given the other evidence at its disposal, the Court of Appeal concluded that an oral hearing was not necessary.
The applicant parents were ordered to pay the defendants’ fees and costs but the court lifted the applicant children’s obligation to participate jointly in their reimbursement.
On 22 November 2002 the Supreme Court (korkein oikeus, högsta domstolen) refused the applicants leave to appeal. In seeking such leave the applicants had argued, inter alia, that the lower courts had refused to take oral evidence from expert A. since his written testimony had been recorded in the minutes of the criminal proceedings against T. By failing to examine A. in the criminal proceedings initiated by the applicants the lower courts had violated the principle of immediacy in the taking of evidence. Furthermore, no decision had been recorded and no reasons had been given for the courts’ refusal to take oral expert testimony from H.-S. The District Court’s refusal had occurred after a prior agreement to the contrary.
B.Relevant domestic law and practice
1.Public care
The relevant legislation is outlined in the Court’s judgment in K. and T. v. Finland ([GC], No. 25702/94, §§ 94-136, ECHR 2001-VII). Those provisions of particular relevance to the present case are described below.
(a) Conditions
According to section 16 of the Child Welfare Act, the Social Welfare Board shall take a child into care and provide substitute care for him or her if (a) the child’s health or development is seriously endangered by lack of care or other conditions at home, or if the child seriously endangers his or her health and development by abuse of intoxicants, by committing an illegal act other than a minor offence, or by any other comparable behaviour, (b) the measures of assistance in open care are not appropriate or have proved to be inadequate; and (c) foster care is considered to be in the best interests of the child. Foster care shall be provided without delay where it is needed and is in the best interests of the child (section 9, subsection 2).
According to section 47 of the Social Welfare Act (sosiaalihuoltolaki, socialvårdslag 710/1982), a decision made by the Social Welfare Board is enforceable regardless of an appeal (a) if the decision requires immediate implementation; (b) if, for reasons due to the arrangement of social welfare, the enforcement of the decision cannot be delayed; or (c) when the Social Welfare Board has ordered the decision to be enforced at once.
(b) Hearing of interested parties
The child’s custodians, biological parents and de facto carers shall be heard in respect of a proposed public care order and be notified of the decision taken (section 17, subsection 1, of the Child Welfare Act, as amended by Act no. 139/1990). The hearing procedure is governed by the Administrative Procedure Act (hallintomenettelylaki, lag om förvaltningsförfarande 598/1982). Under section 15 of the said Act a party shall be afforded the opportunity to reply to any claims put forward by others as well as to any evidence that may affect a decision to be taken. The Administrative Procedure Act does not lay down any minimum period of time which a party shall have at his or her disposal for preparing such a reply. A matter may be decided without a preceding hearing of a party, inter alia if such a hearing would be manifestly unnecessary, would jeopardise the purpose of the decision or if the decision cannot be postponed. Section 17 of the Administrative Procedure Act requires that the competent authority duly investigate the matter before it and ensure the equality of the parties.
(c)Restrictions on access and other contact
According to section 24 of the Child Welfare Act, a child who is being cared for outside his or her original home shall be ensured those important, continuous and secure human relations which are important for his or her development. The child is entitled to meet his or her parents and other close persons and to keep in touch with them (subsection 1). The Social Welfare Board shall support and facilitate the child’s contacts with his or her parents and other close persons (subsection 2).
According to section 25 of the Child Welfare Act and section 9 of the Child Welfare Decree, the Social Welfare Board or the director of a children’s home may restrict the right of access of a child in foster care to its parents or other persons close to him or her if (a) such access clearly endangers the development or safety of the child; or if (b) such a restriction is necessary for the safety or security of the parents, or the children or staff in the children’s home. The restriction shall be limited in time. It shall mention the persons whose rights are being restricted, the kind of contacts concerned by the restriction and the extent of the restriction.
In his letter to the Council of the State (valtioneuvosto, statsrådet) dated 9 June 1998 (no. 1179/98) the Parliamentary Ombudsman stated as follows:
“Since restrictions on contact between parents and children placed in public care entail an interference with the protected family life, it is important that such restrictions be confirmed in a legally valid decision whenever there is even a slight difference in opinion as to the amount of contact allowed or as to the arrangements for this purpose. A party is entitled to a legally valid decision in respect of every de facto restriction on contact.”
(d)Care plan
The care plan to be drawn up in respect of a child in public care shall mention (a) the purpose and objectives of the placement; (b) what kind of special support will be organised for the child, for the persons in charge of the child’s care and upbringing and for the child’s parents; (c) how the child’s right of access to its parents and other persons close to the child will be organised; and (d) how after-care is going to be organised. According to section 4 of the Child Welfare Decree, the care plan shall be elaborated in co-operation with those involved.
2. Criminal proceedings
(a) Complaint against procedural delay
Under Chapter 16, section 4 (2) of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken, as amended by Act no. 1052/1991 and in force at the relevant time, any party who considered that the proceedings before a district court were being unjustifiably delayed by an adjournment had the right to lodge a complaint (kantelu, klagan) with a Court of Appeal within 30 days from the date of the adjournment. Under the said provision the district court could adjourn the case upon request by a party, for example if the said party wished to adduce further evidence. The court could not adjourn the hearing proprio motu save on special grounds.
In a decision of 16 October 1997 (No. 3755) the Helsinki Court of Appeal held that an adjournment in a civil case had not been unjustified, inter alia, because of a pending criminal case concerning the same complainant. The Supreme Court did not grant leave to appeal.
In its decision of 12 September 1995 (No. 3870), the Turku Court of Appeal held that an adjournment in a criminal case had not been unjustified, given the reasons for the request for adjournment and the extent of the case.
The provision in Chapter 16, section 4(2) of the Judicial Procedure was repealed as from 1 October 1997, when new provisions generally prohibited adjournments.
(b) Oral hearing on appeal
According to the Criminal Procedure Act (laki oikeudenkäynnista rikosasoissa, lag om rättegång i brottmål, 689/1997) which entered into force on 1 October 1997, proceedings which were already pending before a court on that date were to be governed by previously applicable legislation.
According to Chapter 26, section 7, of the Code of Judicial Procedure (as amended by Act no. 661/1978 and in force until 1 May 1998, when amended by Act no. 165/1998), the Court of Appeal could, when necessary, hold an oral hearing where parties, witnesses and experts could be heard, and other evidence could be taken. The appellate court was to pay particular attention to any conflicting oral testimony taken by the lower court and which would require the higher court to re-assess the credibility of such testimony.
(c)Finland’s reservation to Article 6 § 1 of the Convention
The instrument of ratification of the Convention deposited by the Finnish Government on 10 May 1990 contained the following reservation in respect of the right to a public hearing guaranteed by Article 6 § 1:
“ For the time being, Finland cannot guarantee a right to an oral hearing insofar as the current Finnish laws do not provide such a right. This applies to:
1.proceedings before the Courts of Appeal, ... in accordance with Chapter 26 Sections 7 and 8, ..., of the Code of Judicial Procedure, ...;
On 1 May 1998, following the entry into force of Acts no. 689/1997 and 165/1998, Finland withdrew inter alia the above part of its reservation, with the exception of proceedings in which the district court’s judgment had been rendered before 1 May 1998, as well as criminal proceedings which had been pending before district courts when Act no. 689/1997 had entered into force, the courts having continued to deal with those cases according to previously applicable legislation.
COMPLAINTS
1.The applicants complain that the interference with their family life resulting from the taking of S. into public care and the related access and contact restrictions violated Article 8 of the Convention as being unlawful and disproportionate. The care order was based on a groundless incest accusation. Rather than seeking to reunite the family the authorities attempted to cut off the ties between S. and the rest of his family. The access restrictions were excessively rigid, as a result of which S. was only once during his placement permitted to visit the family home. In addition, no appeal lay open against the various access restrictions.
2.The applicants further complain under Article 6 of the Convention that since no charges were brought against A. and J. they were unable to prove their innocence in respect of the incest accusations. Instead they were subjected to pressure to confess to incest as a precondition for the revocation of the care order. Moreover, despite T.’s acquittal of the incest charges the social welfare authorities continued to presume him guilty, in violation of Article 6 of the Convention.
3.The applicants also complain under Article 6 that the police failed, during a period of six months, to inform T. of the crime of which he was being suspected.
4.The applicants complain that the effective deprivation of S.’s liberty and the questioning and therapy to which he was subjected amounted to inhuman treatment proscribed by Article 3 of the Convention.
Moreover, J. was also subjected to inhuman treatment in that he was accused of having committed incest with his brother and purported to be a victim of incest committed by his father.
5.The applicants complain that S.’s right to freedom of expression as guaranteed by Article 10 of the Convention was violated in that the authorities failed to hear his opinion impartially.
6.The applicants further complain that they had no effective remedies at their disposal, in violation of Article 13 of the Convention, against the incest accusations against T., A. and J., the public care order and the access restrictions.
7.On 8 January 2001 the applicants additionally complained under Article 6 § 1 of the Convention about the length and unfairness of the criminal proceedings initiated by them.
The applicants underscored that the proceedings had been delayed by almost three years due to the Medico-Legal Authority’s procrastination in delivering its opinion to the District Court. They had suffered financial and other hardship not least as a result of their obligation to pay the very significant costs and expenses which the District Court had awarded to the defendants.
As for the alleged unfairness, the District Court had refused at its hearings to allow certain questions to be put to the experts consulted by the Medico-Legal Authority and had refused to take oral testimony from experts A. and H.-S. as proposed by the applicants.
Neither had the applicants been able to comment on the opinions submitted by the experts consulted by the Medico-Legal Authority before it had delivered its opinion. Had the applicants been able to intervene beforehand, they would have been able to show that those experts had not been provided with the Court of Appeal’s judgment of 1994 which had discussed the deficiencies in the investigations into the suspected sexual abuse and had upheld T.’s acquittal. The applicants would further have been able to show that the experts consulted by the Medico-Legal Authority had not been specialists in the field of sexual abuse.
8.On 22 May 2003 the applicants supplemented the complaint about unfairness, relying on Articles 6, 8 and 13 of the Convention. They contended that in order to reach the conclusion that that the investigation into the suspected sexual abuse of S. had been conducted in accordance with approved and generally applied practice at the relevant time the Medico-Legal Authority had had to overstep its competence. The Authority had been consulted at the suggestion of the public prosecutor (though not a party to the case), even though only three of the eight accused had been under the formal supervision of the Medico-Legal Authority.
On receipt of the first opinion from expert E.R. the Authority had obtained further opinions from other experts known to be more supportive of the investigation methods used in the case of S.
Instead of limiting itself to reviewing whether the examinations conducted in the Family Advice Centre and the A. hospital had been conducted in an appropriate manner the Authority not only answered this question in the affirmative, but had gone on to find that the conclusions reached had been medically appropriate. In so doing the Authority had effectively set aside the criminal courts’ finding – in acquitting T. – that the investigations had been flawed and the conclusions erroneous.
Moreover, even though it had concluded that the investigation had been conducted in accordance with approved and generally applied practice in the beginning of the 1990s, the Medico-Legal Authority had failed to specify that practice. In actual fact the rules and guidelines issued in the 1970s and 1980s and the practice of the early 1990s had been to the contrary.
In the applicants’ case the Medico-Legal Authority had moreover deviated from its practice to hear the interested party in respect of the experts opinions it had obtained before drawing its own conclusions. Neither the expert opinions nor the Authority’s own submission to the District Court had indicated the documents which had been at Authority’s disposal and which ones it had placed at the disposal of the experts.
In dismissing the applicants’ charges the courts had relied on the Medico-Legal Authority’s opinion as well as on the individual opinions of three experts chosen by the Authority itself. Out of those three S.T had already been heard as an expert in the criminal proceedings against T. and had then considered T. guilty of having sexually abused S.
In their judgments the District Court and the Supreme Court had furthermore failed to rely on the written opinions of the four experts heard at the applicants’ initiative and had refused to take oral evidence from two of them.
The applicants’ charges had sought to establish criminal liability for the conclusions drawn in the public care proceedings and which the criminal courts had found to be erroneous. The outcome of the proceedings had blurred the conclusions of the criminal courts. The costs and expenses which the applicant parents had been ordered to pay were of such magnitude as to result in the loss of the family home in execution proceedings.
THE LAW
A. The applicants’ standing before the Court
The Government note that T. has brought the application both in his own name and in the name of his son S., whose custodian he no longer is. No longer competent under Finnish law to act on his son’s behalf, T. cannot represent his son before the Court.
In so far as the application is being rejected for the reasons below, the Court need not rule on this objection.
B.Non-exhaustion of domestic remedies
The Government submitted that since it had not been shown that J. had exhausted any domestic remedies in the case, the application should be declared inadmissible as far as lodged in his name.
The applicants contend that the Government have not explained which remedies, J. – at the time a minor – could have used in his own name.
In so far as the application is being rejected for the reasons below, the Court need not rule on this objection.
C.The taking of S. into public care and the parents’ participation in the decision-making
The applicants have complained that the interference with their family life resulting from S.’s placement in public care violated Article 8 of the Convention as being unlawful and disproportionate.
Article 8 reads, in so far as relevant, as follows:
“1. Everyone has the right to respect for his ... family life, ...
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 Government consider that the various care measures and access restrictions had a basis in the Child Welfare Act and the Child Welfare Decree. Under section 16 of the said Act the authorities were under a duty to take a child into public care if certain conditions were met, as in this case. The Act and the Decree also governed the authorities’ right to decide on the residence of a child in such care as well as on any restriction of access and other contact between the child and persons close to him or her. Sections 9 and 16 of the Act stipulated the duty of the authorities to provide a child with public care without delay whenever necessary, and section 20 governed the termination of such care. Section 11 of the Act and sections 4 and 5 of the Decree provided for the elaboration of a care plan.
It is the Government’s view that the contested measures were aimed at protecting the “health and morals” as well as the “rights and freedoms” of others, and thus pursued legitimate aims within the meaning of paragraph 2 of Article 8. The taking of S. into care was based on painstaking and detailed assessment by medical and other experts and was “necessary in a democratic society” within the meaning of paragraph 2 of Article 8 of the Convention, the reasons for such care being relevant and sufficient. The care order of 11 July 1991 was based on the strong, persistent and overly sexual symptoms of S. which were not usual for children of his age and at his stage of development. Those symptoms demonstrated that he had been affected by such sexual interference as to seriously endanger his health and development, and that the parents had not been able to protect him against such interference. The Social Welfare Board had at its disposal five statements by social welfare and health care professionals who had examined or treated S. The authorities also had at their disposal the opinions which the applicants had obtained from psychologist M.S. and Dr P.T. Several reports and certificates, issued inter alia by the social welfare authorities and doctors, were available to the courts when they considered the public care. In addition, the County Administrative Court took oral testimony from five experts in the fields of psychology and psychiatry.
Finally, the Government are of the view that the applicants were sufficiently involved in the decision-making. They were able to exercise all remedies open to them and had the opportunity to respond to the Social Welfare Board’s rejoinders to the administrative courts. In addition, they were advised by counsel at different stages of the proceedings and were provided with an opportunity to be heard before the Social Welfare Board when the taking of S. into care was considered on 11 July 1991. The County Administrative Court heard five experts, one of whom had been proposed by T. Due to his age – five and a half years – it was not possible to ascertain S.’s own opinion at the time of his being taken into care. His views were nevertheless described in the statement of 11 November 1992 prepared by the childrens’ home. The County Administrative Court heard S. in the children’s home and in addition one judge heard him off its premises. Moreover, when examining the parents’ appeal against the refusal to terminate the care of S. the County Administrative Court, of its own motion, heard S.’s therapist and four staff members of the children’s home. In addition, T. was able to hear psychologist H.H. and senior physician P.T., and A. was able to have R.L. and psychologist O.W. give oral testimony to the administrative court.
The applicants maintain their complaint. As confirmed by various specialists who reviewed the investigation methods, the Family Advice Centre and the A. hospital failed to investigate objectively what had caused “the symptoms” of S. Instead they started from the presumption that incest had occurred, asking him leading questions during a total of twenty-six one-hour “interrogations”. They misinterpreted his statements and tried to convince him and J. that their parents had sexually abused them. Psychologist M.S. had not even talked to the parents or relatives before concluding that the incest had lasted for generations. Her summary to the Social Welfare and Health Care Board and the police about the interviews with S. was seriously misleading. Nor did anyone in the A. hospital interview or examine any of the children’s family members or relatives. Moreover, the Board took no account of the views of the experts appointed by the applicant parents.
The applicants furthermore contend that they were insufficiently involved in the decision-making regarding the public care and the access restrictions. The only time they were officially notified, in accordance with section 15 of the Administrative Procedure Act, of a care decision relating to their son, was on 20 June 1991.
The Court reiterates that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life and that domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8. An interference with that right constitutes a violation of this provision unless it is “in accordance with the law”, pursues an aim or aims that are legitimate under paragraph 2 of Article 8 and can be regarded as “necessary in a democratic society”. As this Court has reiterated time and again, the taking of a child into public care should normally be regarded as a temporary measure, to be discontinued as soon as circumstances permit, and any measures implementing such care should be consistent with the ultimate aim of reuniting the natural parent and the child. The fact that a child could be placed in a more beneficial environment for his or her upbringing will not on its own justify a compulsory measure of removal from the care of the biological parents; there must exist other circumstances pointing to the “necessity” for the interference with the right under Article 8. In determining whether such a “necessity” existed in the given circumstances at the given time the Court will consider whether the reasons adduced to justify these measures were relevant and sufficient for the purpose of paragraph 2 of Article 8 (see K. and T. v. Finland [GC], no. 25702/94, §§ 151, 154 and 173, ECHR 2001‑VII).
Moreover, the positive duty to take measures to facilitate family reunification as soon as reasonably feasible will begin to weigh on the responsible authorities with progressively increasing force as from the commencement of the public care, subject always to its being balanced against the duty to consider the best interests of the child. Whereas the authorities enjoy a wider margin of appreciation in assessing the necessity of taking a child into public care, a stricter scrutiny is called for in respect of any further limitations, such as restrictions placed by those authorities on parental rights of access. Such further limitations entail the danger that the family relations between the parents and a young child are effectively curtailed. The minimum to be expected of the authorities is that they examine the situation anew from time to time to see whether there has been any improvement in the family’s situation. The possibilities of reunification will be progressively diminished and eventually destroyed if the biological parents and the child are not allowed to meet each other at all, or only so rarely that no natural bonding between them is likely to occur (see K. and T. v. Finland, cited above, §§ 151, 154-155, 173, 178-179).
In the present case it is common ground that the placement of S. in public care interfered with the applicants’ right to respect for their family life. The Court notes that according to section 16 of the Child Welfare Act the Social Welfare Board was under an obligation to take a child into public care inter alia if the child’s health or development was seriously endangered by lack of care or other conditions at home, provided that open-care assistance was not appropriate or had proved to be inadequate and on the further condition that public care was considered to be in the best interests of the child.
The Court notes that under the terms of the care order of 11 July 1991 the public care of S. was deemed justified in light of findings which in the opinion of psychological and other expertise amounted to a discovery of an incestuous relationship between T. and S. Public care had become necessary as the parents, as of 20 June 1991, no longer accepted the placement of S. in a children’s home in the form of an open-care measure. S. was deemed to be in need of safe conditions away from his home. He was also found to be in need of therapy which in order to be successful required that he be provided with stable conditions.
The Court further notes that having considered that the examination of S. at the A. hospital had been conducted in a suggestive manner, the County Administrative Court found itself unable fully to endorse the conclusions of the hospital staff that S. had been subjected to incest. Nevertheless, in light of the results of the psychological examinations carried out on the other family members, the court – in its decision of 13 March 1992 – could not exclude the possibility that the abuse of S. had taken place at home. Accordingly, the conditions in the home seriously endangered the health and development of S. and support measures of open care were not possible.
Against this background the Court accepts that the care orders met the requirements under the Child Welfare Act in that they provided a sufficiently detailed account of the open-care measures taken and adequately described why such assistance was no longer possible. Accordingly, the interference with the applicants’ family life was “in accordance with the law”.
Accepting also that the interference in question aimed at protecting the health and rights of S., the Court must next determine whether the social welfare authorities and the administrative courts remained within their margin of appreciation in ordering and confirming the public care and in refusing the subsequent appeals.
Keeping in mind that the authorities’ primary task was to safeguard the interests of S., the Court can accept that the Social Welfare and Health Care Board could reasonably consider that placing him in public care for some time was in his best interests, in anticipation of the outcome of the pre-trial investigation into the suspected incest and the possible charges to follow.
The Court also notes the rigorous review and careful reasoning of the County Administrative Court in its decisions of 13 March 1992 and 16 September 1993, concluding that the public care of S. remained justified at the given time.
Against this background the Court can accept that the public care was based on a sufficiently careful assessment of the impact of the public care on the applicants, as well as of the possible alternatives to taking S. into care. Accordingly, the Court can accept that his care was grounded on “relevant” and “sufficient” reasons.
Article 8 furthermore requires that the authorities and courts provide such detailed reasons as to enable the parent or custodian to participate in the further decision-making by appealing their decisions adequately. A parent must also be placed in a position where he or she may obtain access to information which is relied on by the authorities in taking measures of protective care. Situations may arise where a parent can claim no absolute right to obtain disclosure of, for example, a child’s statement, if a careful consideration leads to the conclusion that such disclosure could place the child at risk. As a general rule, however, the positive obligation on the Contracting State to protect the interests of the family requires that all case-material be made available to the parents concerned, even in the absence of any request by them (see T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, §§ 78-83, ECHR 2001-V; P., C. and S. v. the United Kingdom, no. 56547/00, §§ 136-138, ECHR 2002-VI; K.A. v. Finland, no. 27751/95, §§ 103-104, 14 January 2003).
The Court notes that during the period of open-care measures social workers were in contact with the parents on several occasions. In the ensuing proceedings they were assisted by a member of the Bar and were afforded an opportunity to express their views to the Social Welfare and Health Care Board and the County Administrative Court both in writing and orally.
It is true that in August 1991 the A. hospital refused T. access to various material gathered during the examination of S. and that this material was obtained by the parents only in 1993. While it confirmed the existence of the Family Advice Centre’s early presumption that S. had been subjected to incest, the parents had been made aware of that suspicion at the initial stage of the care proceedings. Indeed their observations to the Social Welfare and Health Care Board and the County Administrative Court show that they had been made aware of the nature of the suspicions which were deemed to justify the public care. They were also invited to familiarise themselves with the Board’s case-file. Moreover, they had the possibility of appealing against the care order to two levels of administrative courts and T. was able to comment on the Board’s submissions to the administrative courts in the appeal proceedings.
The Court concludes that in the overall circumstances the applicants’ possibility of being involved in the decision-making concerning the taking into care of S. was sufficient for the purposes of Article 8.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
D. Implementation of the public care
The applicants have further complained that the access and contact restrictions imposed in the course of the public care of S. violated Article 8 of the Convention as being unlawful and disproportionate. Rather than seeking to reunite the family the authorities attempted to cut off the ties between S. and the rest of the family. The restrictions were excessively rigid and not agreed in the care plan. The authorities gave the family no alternatives but simply dictated the terms of the arrangements at the various locations where S. was placed.
The applicants moreover dispute the Government’s assertion that since they had not expressed their clear dissatisfaction with the proposed access arrangements the authorities were not obliged to issue a decision which the applicants could have appealed against. The applicants refer to the Ombudsman’s opinion of 9 June 1998. Moreover, while the access restriction imposed on 10 December 1992 concerned only the parents, S.’s grandmother was turned away from the children’s home on 4 June 1993. On 15 July 1993 his grandfather was also refused the right to visit him. No restriction order concerning the grandparents or other relatives was given, the applicants’ counsel simply being told by the Social Welfare Director that it had been decided “to quieten the summer period”.
The Government consider that the access restrictions were justified. The visits to S. were agreed with the parents and the supervision of the meetings was carried out very tactfully. According to the social welfare authorities’ records, the first time A. requested changes in the access arrangements was when she visited the children’s home on 8 April 1992. She was advised to make a written request in order to obtain a decision on access, but failed to do so. It is true that, on 2 July 1993, access was restricted to one visit a month and telephone calls were prohibited. Even so, given that the restrictions imposed on 10 December 1992 were revoked by the County Administrative Court, the visits to S. in practice continued as agreed on prior to the decision of that date.
Under Article 35 of the Convention the Court may only deal with a matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken. It is the Court’s constant case-law that in the absence of such a decision the six-month period begins to run from the event which is the subject-matter of the grievance or, if the complaint concerns a continuing situation, from the end of that situation.
The Court furthermore reiterates that the six months’ rule, in reflecting the wish of the Contracting Parties to prevent past decisions being called into question after an indefinite lapse of time, serves the interests not only of the respondent Government but also of legal certainty as a value in itself. It marks out the temporal limits of supervision carried out by the organs of the Convention and signals to both individuals and State authorities the period beyond which such supervision is no longer possible. It is therefore not open to the Court to set aside the application of the six months’ rule solely because a Government have not made a preliminary objection based on it (see Posti and Rahko v. Finland, no. 27824/95, § 38, ECHR 2002‑VII).
The Court notes that on 16 September 1993 the County Administrative Court revoked the access and contact restrictions. Whereas the applicants have argued that certain de facto restrictions remained in force subsequently, S. was returned to A.’s home in June 1994 and this complaint was introduced only in June 1995.
It follows that this complaint is introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
E. Alleged breach of the presumption of innocence
The applicants have also complained under Article 6 of the Convention that since no charges were brought against A. and J. they were unable to prove their innocence in respect of the incest accusations. A. and T. were furthermore subjected to pressure to confess to incest as a precondition for the revocation of the public care order. Moreover, despite T.’s acquittal of the incest charges the social welfare authorities continued to presume him guilty of that offence, in violation of Article 6.
The relevant part of Article 6 reads as follows:
“2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
While accepting that Article 6 § 2 applies to T., the Government note that A. was never “charged with a criminal offence” within the meaning of that provision, as she was neither prosecuted for sexual abuse nor even interrogated as a suspect. Accordingly, Article 6 § 2 does not apply to her.
The Government at any rate consider this complaint manifestly ill-founded. It has not been alleged that T.’s right to be presumed innocent was violated in the criminal proceedings against him. Moreover, in its investigation request to police the Social Welfare Board identified no suspect by name.
The Government submit furthermore that in Finland issues of public care and right of access in respect of a child are not criminal issues but fall within the sphere of administrative law. The purpose of evidence adduced in care proceedings is to prove what would be in the best interests of the child. The objective is not to establish criminal liability but to assess a wider range of factors such as the child’s situation and home conditions.
The applicants contend that T.’s acquittal by the District Court in October 1992 and by the Court of Appeal in February 1994 never convinced the social authorities of the parents’ innocence. On the contrary, the authorities continued to regard their confession to the incest against S. as a precondition for the termination of his public care. The strongest evidence of this uncompromising attitude can be found in the Social Welfare Section’s submissions to the County Administrative Court dated 28 June 1993, where the parents were urged, as a condition for any re-assessment of the care order, “to admit what they [had] done to S.”
Moreover, even in the private prosecution proceedings initiated by the applicants the authorities maintained that both T. and A. were guilty of incestuous crimes against S.
The Court reiterates that the concept of a “criminal charge” within the meaning of this provision is an autonomous one. According to the Court’s established case-law, there are three criteria to be taken into account when deciding whether a person was “charged with a criminal offence” for the purposes of Article 6, namely the classification of the proceedings under national law, their essential nature and the type and severity of the penalty that the applicant risked incurring. Moreover, the scope of Article 6 § 2 is not limited to criminal proceedings that are pending. In certain instances, the Court has also found the provision applicable to judicial decisions taken after the discontinuation of such proceedings or following an acquittal. Those judgments concerned proceedings related to such matters as the obligation of an accused to bear court costs and prosecution expenses, a claim for reimbursement of his (or his heirs’) necessary costs, or compensation for detention on remand, and which were found to constitute a consequence and the concomitant of the criminal proceedings (see, for example, Ringvold v. Norway, no. 34964/97, § 36, ECHR 2003‑...; with further references).
(i) Turning to the present case, the Court finds at the outset that S. cannot claim to be a victim of a violation of Article 6 on the aforementioned grounds.
It follows that this complaint is manifestly ill-founded in so far as lodged by S. and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention .
(ii) In so far as applicants A. and J. have complained that they were unable to prove their innocence as no charges were brought against them the Court finds that Article 6 § 2 does not apply.
It follows that in so far as it has been lodged by these applicants the complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
(iii) Turning to T.’s grievance, the Court notes that on 8 October 1992 the applicant was acquitted of the charges of sexual abuse, whereas in the care proceedings the Social Welfare and Health Care Board, in its submissions of 10 December 1992 and 28 June 1993, maintained inter alia that incest had been committed “within the family” and that the parents had to “admit to what had happened”.
The Court considers that a position such as that which the Board maintained at least up to 28 June 1993 could in principle raise an issue under Article 6 § 2 in that it might be seen as setting aside T.’s acquittal (cf. Lindelöf v. Sweden (friendly settlement), no. 22771/93, 20 June 2000). On 3 June 1994, however, the Board revoked the public care of S. and there is no indication that it maintained its previous position concerning T.’s possible guilt past that date, up to a date falling within the six months preceding the introduction of this complaint in June 1995.
True, the applicants have alleged that the social welfare authority maintained, even in the course of the private prosecution proceedings against some of its officials, that the parents had committed sexual abuse against S. While those proceedings ended only in 2002, the Court finds this assertion unsubstantiated.
It follows that in so far as this complaint has been lodged by T. it is in part introduced out of time and in part manifestly ill-founded and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
F.Alleged failure to inform T. of the nature and cause of the accusation against him
The applicants have further complained under Article 6 of the Convention that the police failed, during a period of six months, to inform T. of the crime of which he was suspected.
The Court notes that the alleged failure to inform T. of the suspicions against him during a period preceding his trial and ultimate acquittal in 1992, whereas the complaint was introduced only in June 1995.
It follows that this complaint is also introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
G.Alleged ill-treatment of S. and J.
The applicants have furthermore complained that the deprivation of S.’s liberty and the therapy to which he was subjected while cared for by the social authorities amounted to inhuman treatment proscribed by Article 3 of the Convention. Moreover, J. was also subjected to inhuman treatment in that he was accused of having committed incest with his brother and alleged to have been a victim of incest committed by his father.
Article 3 reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
(i ) The Court notes that the alleged ill-treatment of S. occurred during his public care from June 1992 to June 1994, whereas this complaint was introduced only in June 1995.
It follows that this part of the complaint is also introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention in so far as lodged on behalf of S.
(ii) Leaving open the question whether this complaint has been lodged within six months from the end of the situation to which J. alleges to have been subjected, the Court finds that the evidence submitted does not sufficiently substantiate this grievance so as to disclose either an appearance of treatment meeting the definition of treatment proscribed by Article 3 (see, for example, the Raninen v. Finland judgment of 16 December 1997, Reports of Judgments and Decisions 1997-VIII, pp. 2821 et seq., §§ 55 et seq.) or a failure on the part of the authorities to investigate suspected treatment of such nature.
It follows that this part of the complaint must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention in so far as lodged by J.
H.Alleged violation of S.’s freedom of expression
The applicants have complained that S.’s right to freedom of expression as guaranteed by Article 10 of the Convention was violated in that the authorities failed to hear his opinion impartially.
The Court finds that the applicants have not sufficiently substantiated this grievance. Consequently, it finds no appearance of any violation of Article 10.
It follows that this complaint must also be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
I.Alleged absence of an effective remedy
The applicants have also complained that they had no effective remedies at their disposal against the incest accusations against T., A. and J., the care orders and the access restrictions. Article 13 of the Convention provides as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Court reiterates that the requirement flowing from this provision is absorbed by the more specific procedural guarantees of Article 6, which governs proceedings before the courts. The Court has already rejected the applicants’ grievances under Articles 6 and 8 on various grounds. In so far as it has considered the complaints manifestly ill-founded the Court detects no separate issue under Article 13.
It follows that this complaint must likewise be rejected in accordance with Article 35.
J.Allegedly excessive length of the private prosecution proceedings
The applicants have additionally complained under Article 6 § 1 of the Convention about the length of the private prosecution proceedings initiated by them. Those proceedings were delayed by almost three years due to the Medico-Legal Authority’s procrastination in delivering its opinion. The applicants suffered financial and other hardship not least as a result of their obligation to pay, before their appeal had been decided, the very significant costs which the District Court had awarded to the defendants.
The Government consider that the applicants failed to exhaust the available domestic remedies as they did not complain against any of the District Court’s decisions to adjourn the proceedings. Under Chapter 16, section 4 (2) of the Code of Judicial Procedure they could have complained to the Court of Appeal within thirty days from the date of each adjournment. Nor did they avail themselves of any other national remedy such as the Parliamentary Ombudsman or the Chancellor of Justice.
Were the Court to have another position, the Government submit that the complaint is manifestly ill-founded as the length of the proceedings was not unreasonable. They commenced in the District Court on 21 June 1994. The applicants’ charges and claims for damages were deficiently prepared: except for two adjournments necessitated by the death of the first presiding judge and the illness of her successor all of them were requested by the applicants themselves, initially in order to adduce further evidence and, in January 1995, for the purpose of obtaining an opinion from the Medico-Legal Authority. While conceding that the delay in the submission of the opinion of the Medico-Legal Authority was rather long, the Government note that it was caused in part by the fact that the experts who were asked to submit their opinion failed to meet their deadlines, though repeatedly reminded thereof by the police and the Authority. Due to the small number of child psychiatrists willing to act as experts of the Authority they are constantly overloaded with work.
The Government note, however, that when the Medico-Legal Authority’s opinion eventually could be considered by the District Court in December 1997, the case was again adjourned repeatedly at the request of the applicants – for a total of about one year and five months. Moreover, in the Court of Appeal the applicants requested an extension of the time-limit for submitting and completing their appeal.
It is the Government’s opinion that only two adjournments were caused by the national courts: due to the death of the district judge and the illness of the other district judge.
Finally, the Government underline that the proceedings concerned a complex case with a file consisting of thousands of pages of evidence.
The applicants contend that the remedies referred to by the Government were of extraordinary nature and therefore not such as to require exhaustion for the purpose of Article 35 of the Convention. Contrary to the Government’s assertion, it was the public prosecutor who requested that the District Court seek an opinion from the Medico-Legal Authority. The applicants had only requested a supplementary investigation by the police. The case was adjourned from January 1995 to December 1997 without the applicants having any means of accelerating the submission of the Authority’s opinion. They could only ask for witnesses to be heard once that opinion had been produced. The procedure for hearing witnesses lasted about one year and five months, which was quite normal.
Given that the case involved some 6,000 pages of documentation, the applicants consider that no blame can be placed on them for having requested an extension of the time-limit for filing and completing their appeal to the Court of Appeal. They could not influence the speed of the actual proceedings before that court.
The Court notes that the applicability of Article 6 § 1 to the private prosecution proceedings in question is not in dispute. Noting, in particular, that the charges were coupled with a claim for damages, the Court sees no reason to hold otherwise (see, for example, Tomasi v. France, judgment of 27 August 1992, Series A no. 241‑A, p. 43, § 121).
The Court considers, in the light of the parties’ submissions, that this complaint raises serious issues of fact and law under the Convention – including the questions concerning the respective applicants’ standing and “victim” status and whether or not any effective remedy was at their disposal – that an examination of the merits is required. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
K.Alleged unfairness of the private prosecution proceedings
Finally, the applicants have essentially alleged that the outcome of the private prosecution proceedings – in which they had sought to establish criminal liability for the errors made prior to and in the course of the care proceedings – blurred the conclusions which the courts had reached in the criminal proceedings against T. and which had formed the basis for his acquittal. In particular, the private prosecution proceedings were tainted by the following elements of unfairness:
(i) the applicants were unable to submit comments to the Medico-Legal Authority on the opinions of the experts whom it had consulted for the purpose of preparing its own opinion to the District Court;
(ii) neither the expert submissions nor the Medico-Legal Authority’s own opinion indicated the documents which had been at the Authority’s disposal and which ones it had forwarded to the experts;
(iii) the scope and the contents of the Medico-Legal Authority’s opinion effectively set aside the criminal courts’ acquittal of T.;
(iv) the District Court refused to allow certain questions to be put to the experts consulted by the Medico-Legal Authority;
(v) the Court of Appeal refused to take oral testimony from experts A. and H.-S. as proposed by the applicants;
(vi) in dismissing the applicants’ private prosecution the courts relied inter alia on the expert opinion of S.T., even though as an expert in the criminal proceedings against T. she had already considered him guilty of sexual abuse;
(vii) the courts failed to rely on the written opinions of the four experts consulted by the applicants;
(viii) the costs and expenses which the applicant parents were ordered to pay were of such magnitude as to result in the loss of the family home through execution proceedings.
The applicants invoke the above-cited Articles 6, 8 and 13 of the Convention.
The Government consider the complaint manifestly ill-founded. The applicants were able to have their private prosecution fully examined at two court levels and the proceedings met the standards of fairness set by Article 6. In criminal proceedings the Medico-Legal Authority is obliged to limit its observations to the issues raised by the requesting body. The Medico-Legal Authority’s assessment must be based on the norms and standards applicable at the material time. Moreover, it always provides its experts with all relevant material.
In the Government’s opinion the applicants’ grievance is entirely unsubstantiated in so far as they rely on Articles 8 and 13.
As the Court has already had occasion to point out Article 35 of the Convention stipulates that it may only deal with a matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law. The Court notes that the grievances (i)-(iv) and (vi)-(vii) were not raised in the applicants’ request for leave to appeal to the Supreme Court.
It follows that this part of the complaint must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
As for point (v) of this complaint, the Court notes that, on 1 May 1998, following the entry into force of Acts no. 689/1997 and 165/1998, Finland withdrew part of its reservation to Article 6 § 1, that is to say inter alia in respect of the right to an oral hearing before the courts of appeal, with the exception of proceedings in which the district court’s judgment had been rendered before 1 May 1998, as well as criminal proceedings which had been pending before district courts when Act no. 689/1997 had entered into force. Under the previous legislation, which therefore applied to the criminal proceedings initiated by the applicants, a court of appeal was not in all circumstances required to hold a re-hearing.
The Court notes furthermore that the Court of Appeal based its refusal to take oral testimony from experts A. and H.-S. on its appreciation that that a question arose not as to their credibility but rather as to how their joint written opinion to the court should be interpreted. Given that this opinion had been recorded in the minutes and given the other evidence at its disposal, an oral hearing at the appeal stage was not considered necessary. In the circumstances of the case the Court cannot find that the Court of Appeal’s reasons for not holding a re-hearing were arbitrary.
In view of the last-mentioned conclusion it is not necessary to decide whether the Finnish reservation would have precluded the finding of a violation on this ground.
Turning to point (viii) of this complaint, the Court does not find that the costs and expenses which the applicant parents were ordered to pay to the defendants raise any issue of unfairness under Article 6, nor any issue under Article 8 or 13.
It follows that this part of the complaint must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
For these reasons, the Court
Declares unanimously and without prejudging the merits, admissible the applicants’ complaint about the length of the private prosecution proceedings;
Declares by a majority the remainder of the application inadmissible.
Michael O’BoyleNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy