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Puheenjohtajan nuija lakikirjan päällä

Child’s rights might be restricted without a lawful basis in the pre-trial investigation

  • Economy and society

The focus of this thesis is a young child´s (under 15-year-old) position and rights as an injured party in a pre-trial investigation of a criminal case. This thesis examines the aspirations and chances of realization for the child’s best interests, right to participate, and child protection (as defined in the UN Convention on the Rights of the Child) in Finland’s criminal investigation process. For the purposes of producing evidence in criminal investigations, a child’s personal participation is often necessary, although it entails a risk of causing further harm to the child. However, a child’s position as a crime victim and a participant in the criminal procedure has played a marginal role in the discussion focusing on child witnesses’ credibility, evidence assessment, and child protection. This thesis falls under the field of criminal procedure law, examining a young child’s personal rights and position in pre-trial investigations with the right to self-determination, pre-trial investigation functions, and protection of children under criminal law as its theoretical framework. The research problem of the thesis is how a child’s rights as a child and a crime victim are present in a pre-trial investigation, and how legislation and proceedings view children.

The research methods used are doctrinal legal research, discourse analysis, and content analysis. The primary role of doctrinal research is to systematize the child’s rights into criminal investigation legislation. This thesis also gives recommendations on interpreting the application of a child victim’s rights in individual cases. Discourse analysis is used to analyze how legislation documents, rules of conduct, and expert statements discuss children. The aim is to gain insight into how legislation views children. Finally, content analysis is used to systematize the instructions and information given to children at a pre-trial hearing in relation to the rights of an injured party. In addition to sources of law, the research material used includes pre-trial investigation records. The records material analyzed consists of the forensic psychiatric unit’s expert statements and transcripts of children’s pre-trial hearings.

The results of this thesis demonstrate that the personal rights of a young injured party have not been considered or strictly intended as crime victims’ rights belonging to a child. The legislation does not acknowledge decisions related to a child or a child’s participation in the decision-making or the settlement of a matter concerning them. There are four different child discourses used in the legislation material: the discourses of a developing child, concern, invisibility, and obligation. The pre-trial investigation’s view of a child is based on these discourses: on the one hand, children are seen as special and atypical, and on the other, as healthy and thriving. The way a child’s position and rights are unregulated and unspecified can be concretely seen during the questioning of a child as the aim is to help the child to give a credible testimony, while at the same time, the child’s rights are being restricted without a lawful basis.

The key conclusion of this thesis is that the pre-trial investigation legislation does not acknowledge the position of a child in a way that would both ensure a child’s position as an independent holder of their rights and offer procedural protection to the child.

The doctoral dissertation of M.Sc.Admin. Elisa Silvennoinen, entitled Child’s position and rights as an injured party in a pre-trial investigation, will be examined at the Faculty of Social Sciences and Business Studies. The opponents in the public examination will be Adjunt Professor Heini Kainulainen of the University of Turku and Adjunt Professor Veijo Tarukannel, and the custos will be Professor Matti Tolvanen of the University of Eastern Finland

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Link to the dissertation