Onder 3.29 Parket bij de Hoge Raad 1 november 2022

65. In conclusion, the Court has no doubts that the domestic judicial authorities acted in the best interests of the child in declining to summon the presumed victim of the offence to a court hearing. Furthermore, playing the video recording of the victim’s statements at the court hearing allowed the trial court, as well as the applicant, to observe the manner in which the interview had been conducted, to assess E.’s demeanour, and also to assess, at least to a certain degree, the credibility of her account. However, having regard to the importance of E.’s testimony, the Court considers that the above was insufficient to secure the applicant’s rights of defence (compare, for example, A.S. v. Finland , cited above, §§ 65-66; A.L. v. Finland , no. 23220/04, § 41, 27 January 2009; and F. and M. v. Finland , no. 22508/02, § 60, 17 July 2007). It remains a fact that the applicant was never given an opportunity to have questions put to the victim, despite the fact that the investigating authorities were preparing to proceed without E. being summoned to court (compare and contrast, for example, B. v. Finland , no. 17122/02, §§ 44-45, 24 April 2007, and S.N. v. Sweden , cited above, § 49, where the defence either did not avail itself of the opportunity to have questions put to the witnesses or consented not to be present at the interview conducted during the pre-trial investigation). The Court notes that there was no strong corroborative evidence supporting E.’s statements in the present case (compare Al-Khawaja and Tahery , cited above, § 165). It also considers that weighing, on the one hand, the applicant’s defence rights – regard also being had to the substantial prison sentence he faced – and, on the other hand, the limited impact on E. of the applicant’s questions put to her in addition to the questions that the investigators had anyway put to her during the preliminary investigation, the Court is unable to see that if the investigating authorities had paid due attention to the applicant’s defence rights there would have been any significant additional damage to the child. The Court once more emphasises in this context that the above is not to be understood that the authorities were obliged to carry out a confrontation between E. and the applicant or to ensure E.’s cross-examination at a court hearing. Rather, what is at issue in a case like the present one is whether it was possible to put questions to the witness, for example through the defendant’s lawyer, police investigator or psychologist in an environment under the control of the investigating authorities and in a manner that would not need to substantially differ from the interview which was in any event carried out by these authorities.

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