1. (IJCJ Vol5 - 1) N1 - Comments - JH - 수정4 (0710)
1. (IJCJ Vol5 - 1) N1 - Comments - JH - 수정4 (0710)
1. (IJCJ Vol5 - 1) N1 - Comments - JH - 수정4 (0710)
Jani Hannonen*
Doctoral Researcher
University of Turku, Faculty of Law
Abstract
1. Introduction
1 I have chosen to use the concept “Barnahus model” to refer to Nordic approaches to child-friendly
criminal procedure in cases of child sexual exploitation and abuse. The Barnahus concept is nowadays
commonly used in Nordic countries and increasingly in the European context as well. I acknowledge
the fact that the practice of using recorded interviews has slightly different historical backgrounds in
all Nordic countries and the practice predates the Barnahus concept. Furthermore, I am aware that the
term is not commonly used in Finland.
Recorded interviews as evidence in child sexual exploitation and abuse –
6 Barnahus model in Finland and Sweden
Jani Hannonen
of the comparative study are described in Chapter 3. First, the obligations set
out by European law are examined. Then, the Finnish and Swedish Barnahus
models are analyzed in detail. The results of the study are followed by
discussion and conclusions in Chapter 4.
2. Methodology
Sweden, the modernization reforms of the criminal procedure have shifted the
focus of criminal procedure towards the pre-trial phase by widely accepting
recorded interviews (Swedish Government Bill, 2020), whereas in recent
Finnish modernization reforms the stance has been more reserved and
recorded interviews are seen as carefully legislated exceptions to hearing the
victim in court (Finnish Ministry of Justice, 2020, pp. 61–63).
3. Results
The Barnahus model has wide support in EU law. There are provisions
for using recorded hearings as evidence in the 2012 Victim Directive3 (Article
3 Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing
minimum standards on the rights, support and protection of victims of crime, and replacing Council
Framework Decision 2001/220/JHA.
International Journal of Criminal Justice Volume 5 Issue 1, June 2023 9
24) and the 2011 Child Sexual Abuse and Exploitation Directive4 (Article 20).
In short, EU legislation requires that it is possible to use recorded interviews
of under-18-year-old child victims as evidence in all member states. The scope
of the Child Sexual Abuse and Exploitation Directive is limited to sexual
crime, but according to the Victim Directive, the child may be heard conclusively
in the pre-trial investigation of other crimes as well. It is further elaborated in
the Victim Directive that the procedural rules for the recorded interviews and
their use shall be determined by national law.
The Victim Directive (Articles 23 and 24) and the Child Sexual Abuse
and Exploitation Directive (Article 20) also include other victim protection
measures that the child victims may benefit from that both Finland and
Sweden have implemented. These measures include securing a representative
and/or an own lawyer for the child if there is a conflict of interest with the
child’s guardians. During criminal investigations, the interviews should be
carried out on premises designed or adapted for that purpose by trained
professionals and all interviews should be conducted by the same persons. In
cases of sexual violence and violence in close relationships, the interviews
should be carried out by a person of the same sex as the victim if the victim
so wishes (for example by having a female interviewer for a girl victim). The
interviews should take place without unjustified delay and the number of
interviews should be as limited as possible.
The Victim Directive also includes protective measures for the trial
phase. If the child would for some reason testify in court visual contact
between the victim and defendant should be avoided (for example by setting
a screen to block visual contact). The victim could also be heard without being
physically present in the courtroom by using communication technology
and/or the case could be tried without the public. All unnecessary questioning
concerning the victim’s private life should be avoided in criminal proceedings.
4 Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on
combating the sexual abuse and sexual exploitation of children and child pornography, and replacing
Council Framework Decision 2004/68/JHA.
Recorded interviews as evidence in child sexual exploitation and abuse –
10 Barnahus model in Finland and Sweden
Jani Hannonen
5 The Council of Europe Convention on Protection of Children against Sexual Exploitation and Sexual
Abuse 25.10.2007 (CETS No. 201).
6 The Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms
4.11.1950 (CETS No. 005).
International Journal of Criminal Justice Volume 5 Issue 1, June 2023 11
The ECHR found that the recorded interview was indeed decisive evidence
in adjudicating the case (para 46). The court argued that the defendant has to
be given “an adequate and proper opportunity to challenge and question a
witness” at the time when the statements are made or in a later phase of the
procedure. However, the court stated that the defendant does not have “an
unlimited right to secure the appearance of witnesses in court” (para 44). The
court accepted the use of victim protection measures as long as they can be
reconciled with “an adequate and effective exercise of the rights of the defense”
(para 47). The ECHR ruled that the Swedish procedure was not in violation of
the right to a fair trial (para 54). Therefore, in the European legal regime, it is
possible to secure the right to cross-examination without direct contact
between the defendant or the defendant’s lawyer and the child victim.
3.2. Finland
The police are in charge of the pre-trial investigation in most cases (ETL
2:1–2). The prosecutor decides to prosecute or waive prosecution based on
written material delivered by the police (ROL 1:6–8). There are also provisions
for cooperation between the police and the prosecutor (ETL 5:1–3). The
prosecutor must be informed of crimes involving the sexual abuse of children.
The prosecutor may also order the police to conduct a pre-trial investigation
or gather more evidence on a specific issue.
In Finland, the main rule is to receive all evidence orally during the trial
(OK 17:24). However, it is possible to use recorded interviews of victims as
evidence in the trial phase if the conditions of the Code of Judicial Procedure
(OK 17:24) and the Criminal Investigation Act (ETL 9:4) are met. It is of
paramount importance that the suspect is given a chance to present questions
to the victim during the pre-trial investigation. In addition to legislation, there is
Police Guidance (2019) on the treatment of children in pre-trial investigations
and the recent Police Handbook (2022) on child investigations which contain
more specific instructions.
7 At the time of writing, the list of sexual crimes does not include sexual harassment, pandering, enticing
a child for sexual purposes or crimes concerning the dissemination of sexual material depicting a child.
However, recorded interviews may be used as evidence in these situations if the child between 15 and
17 years has specific protection needs. The Finnish parliament has enacted legislation that extends the
permissibility of recorded interviews by default to victims of human trafficking or pandering and
minors who are offered compensation for a sexual deed in March 2023 (Finnish Government Bill,
2022, pp. 135–136). The new legislation enters into force October 1st 2023.
International Journal of Criminal Justice Volume 5 Issue 1, June 2023 13
want to testify in court but the child may testify if he or she wants to. The
recorded interviews are also permissible in other crimes than sexual exploitation
if the child victim between 15 and 17 years has specific protection needs (for
example victims of hate crime or violence in close relationships). When
evaluating the victim’s specific protection needs the personal situation of the
victim and the quality of the crime shall be taken into consideration (Finnish
Government Bill, 2014, p. 84).
In Finland, the name Barnahus (or Barnahus project) has been used more
since 2019 to describe the cooperation between authorities. Nonetheless, there
were similar practices in place already in 2014 such as the interdisciplinary
LASTA screening model. The LASTA screening model has been developed
to facilitate the transfer of information between Finnish police, prosecution,
child protection, and healthcare authorities which is crucial for investigating
the crime. There is a standardized template for gathering information such as
medical history and possible child protection measures. The information is
Recorded interviews as evidence in child sexual exploitation and abuse –
14 Barnahus model in Finland and Sweden
Jani Hannonen
According to the study by Lilja and Hiilloskivi (2022, pp. 34–39; see also
Police Handbook, 2022, p. 78), the police usually request that the Barnahus
units conduct the interview only for children under 7 years old or children with
developmental disabilities due to a lack of resources. In practice, children
International Journal of Criminal Justice Volume 5 Issue 1, June 2023 15
from 7–17 years are usually interviewed at the police station by police officers
trained in child forensic interviews. According to Lilja and Hiilloskivi (2022,
pp. 38, 45–46), it is problematic that not every child is referred to the Barnahus
units, because Barnahus units provide better access to therapy services. Most
importantly the quality of evidence tends to be better if forensic psychologists
from Barnahus units are involved in the interview.
The cooperation between the legal guardian and the legal aid counsel is
referred to as the tandem model. Lilja and Hiilloskivi (2022, pp. 8–10) point
out that the guardian supervises the best interests of the child, and the legal
aid counsel is responsible for representing the child in the criminal procedure.
The legal aid counsel ensures that all relevant evidence is gathered and makes
claims for damages. According to Lilja and Hiilloskivi, both the legal guardian
and the legal aid counsel should be appointed as early as possible, and the
police are responsible for ensuring that they have been applied for (see also
Police Guidance, 2019, pp. 19–21; Police Handbook, 2022, p. 41).
Recorded interviews as evidence in child sexual exploitation and abuse –
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Jani Hannonen
The place of the interview is not strictly regulated, but it has to be suitable
for interviewing children and there has to be adequate video-recording equipment
(Police Guidance, 2019, p. 30). According to the study by Lilja and Hiilloskivi
(2022, pp. 38, 45–46), some Barnahus units prefer to interview the child in
their child-friendly premises and some units prefer to travel to the child victim
and conduct the interview, for example, in a local police station. Lilja and
Hiilloskivi point out that even though some police stations have premises
designed for interviewing children, not every police station is suited for children.
child to relax and gain experience in communicating in a way that the real
interview requires. The child may be asked to tell about some mundane event,
for example, a day at school (Police Handbook, 2022, p. 75). The NICHD
protocol is used as the basis of the interview (for more on the protocol see
Baugerud & Sinkerud Johnson, 2017). The semi-structured protocol is based
on empirical research. It is used by both police officers and Barnahus experts
and it is individually modified for each case (Police Handbook, 2022, p. 79).
According to Korkman et al. (2017, p. 146), the hypothesis testing approach
is a unique trait of the Finnish Barnahus model. Korkman et al. explain that in
the hypothesis testing approach, different hypotheses are carefully formulated
before the interview, and then it is tested which hypothesis gains support in
the interview. The hypotheses can, for example, be the following: A) the child
was sexually abused by a parent, B) the other parent has repeatedly instructed
the child to lie about sexual abuse due to a custody dispute and C) the child
has been misunderstood or the child has not understood the sexual nature of
the words he or she has used.
The interview is usually conducted in two parts. First, the victim is asked
to tell about the situation in his or her own words. Then, in the second part of
the interview, all parties are allowed to ask questions of the victim. (Fredman
et al., 2020, p. 455; Korkman et al., 2017, pp. 149–150) Usually, the suspect
is not personally present in the adjacent room, but the suspect’s lawyer is in
charge of securing the right to cross-examination. The defense is usually not
allowed to follow the first interview in real-time but instead the defense is
allowed to get acquainted with the recording and transcription of the first
interview. The suspect has to be reserved a chance to ask relevant questions
Recorded interviews as evidence in child sexual exploitation and abuse –
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Jani Hannonen
to the victim, but the suspect does not have to exercise this right. The suspect’s
lawyer often presents the questions on behalf of the suspect and the questions
should be prepared preferably in written form. The defense does not have the
right to ask irrelevant or harmful questions. This is supervised by the police
who routinely decide that the defense’s questions are presented to the victim by
the interviewer. The interviewer may formulate the questions in another way
that is more suitable for children of that age. Therefore, the suspect’s right to
ask questions may be secured without direct contact between the victim and
the suspect (Police Guidance, 2019, pp. 33–35; Police Handbook, 2022, pp.
84–89).
There are two major reasons why the defense's questions are asked by
the interviewer. Firstly, direct contact with the possible offender should be
avoided because it could be traumatizing for the child. Forming a good
connection between the interviewer and the child is crucial to getting the child
to speak. It is easier for the interviewer to ask the questions because they
already have a deeper connection. Secondly, interviewing children requires
special expertise because children are especially vulnerable to leading
questions. If the defense's question is not leading, irrelevant, or harmful it can
be conveyed as such to the child. The interviewer does not change the essential
content of the defense’s question but makes it more understandable to the child
or formulates the question in a less-leading form. Open questions such as
“What happened?” are preferred. This directly affects the quality of the child’s
interview. It is possible to ask further questions if the suspect’s lawyer is
following the interview in real-time. However, in practice, the suspect’s
lawyer does not always follow the second interview in real time but instead
approves the cross-examination by watching the recording afterward.
victim does not always know what refusing to testify in court may mean in
practice.
The problem is more relevant for adult victims of sexual crime. The presence
of young children would not make it easier to secure a conviction because they
would not be able to answer the prosecutor’s questions properly in a court
setting. Consequently, this highlights the need to conduct the recorded
interview properly and the prosecutor’s active participation in the pre-trial
investigation.
3.3. Sweden
The main rule is to receive all evidence in the trial (RB 35:8). Since
January 2022 it has been possible to even use recorded interviews of adults as
evidence in criminal cases provided that it is deemed appropriate by the court
(RB 35:15). There is no specific legislation on recorded interviews of child
victims. Nevertheless, the practice is deeply embedded in Swedish legal
culture. Susanna Johansson et al. (2017b, pp. 11–12) point out that the
Swedish supreme court ruled already in 1963 that audio recordings of child
victims could be used as evidence. Therefore, the Swedish legal system is very
open to using recorded interviews as evidence provided that the suspect’s right
to cross-examination is secured.
The main role of the Barnahus is to coordinate the parallel criminal and
social welfare investigations (Johansson et al., 2017b, p. 20; National Police
Board, 2009, p. 8). According to the guidance issued by the National Police
Board (2009, pp. 8, 10–11), the authorities should arrange a coordination meeting
with the police, prosecutors, social workers, and medical professionals when
Recorded interviews as evidence in child sexual exploitation and abuse –
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Jani Hannonen
the authorities receive information about possible child abuse. The coordination
meeting is called by the Barnahus Coordinator, who works in the local
Barnahus unit.
In these cases, the child has a right to legal aid counsel. However, if one of the
child victim’s parents is the suspect the child may be appointed a special
representative who acts simultaneously as the legal counsel and the guardian
of the child in the criminal procedure. The representatives are regulated in the
Act on Special Representatives for Children (lag om särskild företrädare för
barn, 1999:997). In practice, the special representatives are lawyers with
experience in child cases. The prosecutor applies for a special representative
from the district court if it is deemed necessary. It is possible to appoint a
special representative without hearing the parents (In English see Forsman,
2017, pp. 231–236).
The aim is to ensure the quality of the child’s testimony by creating trust and
preventing suggestive interview techniques. The NICHD protocol and a practice
interview are also used in Sweden (Prosecutor’s Handbook, 2019, pp. 8–10).
In Sweden, psychologists do not conduct interviews, but their expertise may
be used in the process. A psychologist may also give an opinion on the child’s
interview for court proceedings (FuK 19 §). According to the Barnahus
evaluation by the University of Linköping (2019, pp. 45–47), it is problematic
that psychologists do not attend the interview regularly. Their role is more
consultative instead.
lawyer is allowed to follow the child’s interview from another room through
a video connection and ask questions. The defense is allowed to see the
recording of the previous interview and the questions should be given to the
lead investigator in advance. According to the Handbook, the exercise of the
right to cross-examination shall be carefully documented in a written memorandum.
During the interview, the prosecutor and the special representative (or the
child’s legal aid counsel) are also allowed to ask questions from the victim
through the interviewer (National Police Board, 2009, pp. 8, 11; Prosecutor’s
Handbook, 2019, pp. 24–25).
It must be noted that the Prosecutor’s Child Handbook was given before
the 2022 law reform, according to which recorded interviews may be used as
evidence in criminal cases provided that it is deemed appropriate by the court
Recorded interviews as evidence in child sexual exploitation and abuse –
26 Barnahus model in Finland and Sweden
Jani Hannonen
(RB 35:15). The recorded interview can be used as separate evidence even
though the person would be heard in court. The interview is played and the
parties may ask questions from the victim (The procedure is described in detail
in Swedish on the National Prosecution Authority Website, 2022). The victim
protection measures stipulated in the Victim Directive, such as hearing the
case without the public, allowing the victim to testify through a video
connection, or setting a screen to block visual contact between the victim and
the defendant, are also available in Sweden.
The core function of the Barnahus model is very similar in Finland and
Sweden. In both countries under 18-year-old victims of sexual exploitation
and abuse may be conclusively heard in the pre-trial investigation in most
cases. The suspect’s right to cross-examination is ensured in the pre-trial phase
by providing the suspect with the possibility to ask questions from the victim
through the interviewer. Therefore, there is no direct contact between the
victim and the offender at any phase of the criminal procedure because the
child does not testify in court.
Johansson et al. (2017b, pp. 1–4) state that the development of the
Barnahus model is closely tied to the context of the Nordic welfare state.
According to the researchers, comparative knowledge about Nordic Barnahus
variations is also valuable in implementing a child-friendly approach to
criminal procedures outside Nordic countries. Even though the legal status of
using recorded interviews is clear in Nordic countries, it is not certain that the
suspect’s or the child victim’s rights are always adequately respected in
practice. The proper implementation of the Barnahus model while respecting
the rights of the defendant requires consistent efforts and the work is not yet
done in either Finland or Sweden. Nevertheless, I argue that the Barnahus
model guides the development in the right direction. As Bragi Guðbrandsson
states (in the foreword of Lind Haldorsson, 2017, pp. 5–6): “the Barnahus is
never a fixed model but rather an evolving practice, ready to adapt to the
complex needs of children who are victims or witnesses of violence.”
Therefore, I invite Korean scholars and criminal justice professionals to
discuss if the Barnahus model or a similar practice could be applied to South
Korea and what form could the multidisciplinary cooperation take.
International Journal of Criminal Justice Volume 5 Issue 1, June 2023 29
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