In the case of Gani v. Spain,
The European Court of Human Rights (Third Section), sitting as
a Chamber composed of:
Josep Casadevall,
President,
Alvina Gyulumyan,
Corneliu Bîrsan,
Ján Šikuta,
Luis López Guerra,
Nona Tsotsoria,
Valeriu Griţco, judges,
and Santiago Quesada, Section Registrar,
Having deliberated in private on 29 January 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
61800/08) against the Kingdom of Spain lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by an Albanian national, Mr Leci Gani (“the applicant”), on
10 December 2008.
The applicant was represented by Mr T. Gilabert Boyert, a lawyer practising in Salou (Tarragona). The Spanish Government (“the
Government”) were initially represented by their Agent, Mr F. Irurzun Montoro, and later by their Agent, Mr F. Sanz Gandasegui.
The applicant complained under Article 6 §§ 1 and
3(d) of the Convention that he had not been given a proper and adequate
opportunity, during either the investigative stage or the hearing, to challenge
and question the victim, the sole witness against him in relation to all the
crimes for which he had been convicted, with the exception of the forgery of
official documents.
On 21 October 2011 the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
On 4 November 2011 the Court informed the
Albanian Government of their right under Article 36 § 1 of the Convention to
intervene in the proceedings. The Albanian Government did not inform the Court of
their wish to intervene.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant, Mr Leci Gani, was born in 1975 and
is currently serving a term of imprisonment in the Spanish prison of Quatre Camins in La Roca del Vallès (Barcelona).
On 3 June 2004, following reports to the police made by N., the applicant’s
former partner and the mother of his son, the applicant was arrested at Prat de
Llobregat Airport (Barcelona) and taken to a police station where he was
informed of his right to appoint private legal counsel or, alternatively, to be
provided with an officially appointed lawyer. The applicant opted for the
latter.
Investigating judge no. 5 of Gavà (Barcelona) instituted a pre-trial
investigation into allegations that the applicant had committed several serious
offences of bodily harm, abduction and rape of N. On 5 June 2004 the applicant
was brought before the investigating judge to be questioned about the offences
of which he had been accused. He was accompanied by his officially appointed
lawyer. The applicant was first informed by the judge of his right to appoint
private legal counsel. He expressly appointed as private counsel the lawyer who
had been officially assigned to him, who assisted him during his examination by
the investigating judge. On 6 July 2004 the applicant was questioned again by
the judge, in the presence of his counsel.
On 22 July 2004 N. testified before the investigating judge; the applicant’s
counsel failed to attend without providing a justification. N. confirmed the
statement she had made to the police with the addition of some further details.
This statement was written up and added to the case file. From the documents
submitted it does not appear that the applicant instituted any liability
proceedings against his counsel for negligence.
On 16 September 2004 the applicant dismissed his counsel and personally
appointed another one, who took over his defence.
11. The hearing
before the Barcelona Audiencia Provincial took place on 19 April 2006. N.
attended the hearing after undergoing a psychological diagnosis which
established her suitability to testify in court. She had started to answer the
questions posed by the public prosecutor when her statement had to be
interrupted, as she was said to be suffering from post-traumatic stress
symptoms that were hindering her from testifying. Those symptoms were medically
confirmed after the hearing. As a consequence, she could not be cross-examined
by the public prosecutor, the private prosecutor or the applicant’s counsel.
The court had already adjourned the hearing once before, following a similar
reaction on the part of N. As a consequence, it had provided her with
psychological assistance before and during the hearing on 19 April 2006 to
allow for her full examination, but to no avail. In this regard, the Barcelona Audiencia Provincial stated in its judgment:
“...
At the time of the suspension [of the proceedings] the victim was
presenting obvious post-traumatic stress symptoms, which were hampering her
memory and wrecked her capacity to express herself. The court’s final decision
[i.e. to suspend the witness-victim’s examination and replace it with the
reading out of the statements she had made to the police and the investigating
judge] was not arbitrary, but was made in the light of what had happened at a
prior hearing which had also had to be suspended - for the same reason - and at
which the psychological treatment of the victim had been ordered, the court’s
perception having been confirmed by a valuable therapeutic procedure, which
nonetheless did not result in the victim overcoming her incapacity. Both the
persistence in the witness’s condition during the new hearing and the failure
of the therapeutic procedure, which did not lead the court to feel optimistic in
the short run (the proceedings concerning an accused person in prison on
remand), justified the final decision to declare the victim’s examination
impracticable. The court had previously attempted - perhaps to the point of excess
- to exhaust all remedies to obtain her statement. It had made use of all the
psychological support that the presence of officials from the victims’ service
could provide to the witness, relaxation exercises during the trial,
suspensions and recesses. It had also attempted, - as a kind of safety valve - to
fragment her account regarding the most violent events and to redirect her
attention to other events that had been less emotionally intense. The efforts
were fruitless, however, and the witness’s resolved will to collaborate was
prevented by one of the most horrific cases of psychological annihilation of a
victim that this court has ever witnessed in its long professional experience.
The witness rightly started her statement by giving a detailed description of
the evolution of her relationship with the accused, the process of rupture and
how their personal relations had developed in its aftermath in the light of
their common child. Her determination began to weaken when, with slightly
shaking hands, she began to describe the assaults she had suffered on the
second day. The shaking later developed into an uncontrollable trembling of her
mouth and her entire body as soon as she started to describe the specific
aggressions she had been subjected to. Whether she was encouraged to stand up,
sit down, drink water or have her hands held, nothing was of the slightest help
to calm her down. Only continuous breaks and recesses and an excessive effort
on her part enabled her to make, in more that an hour, some progress in her
statement, which came to a dramatic end as she was telling the court about the
episode of a cold-water bath with which she had been tortured. Her testimony
essentially corroborated her pre-trial statement and proved the authenticity of
her post-traumatic stress, which was later confirmed by an expert report. The
continuation of the witness’s examination would have been incompatible with Article 8
§ 4 of the Protection of Victims Statute approved by a European Union Framework Decision of 15 March 2001, which states that ‘Each Member State shall ensure that, where there is a need to protect a
victim - particularly those most vulnerable - from the effects of giving
evidence in open court, victims may, following a decision taken by the court,
be entitled to testify in a manner which will enable this objective to be
achieved, by any appropriate means compatible with its basic legal principles’.”
As an alternative to having N. questioned by the parties, the Barcelona Audiencia Provincial ordered that the statements which had been taken from
her during the investigation stage of the proceedings be read out. The
applicant gave his alternative account of the facts.
On 5 May 2006 the Barcelona Audiencia Provincial delivered its
judgment. The court found that on 4 April 2004 the applicant had gone to N.’s
apartment and had made death threats when she had not let him in to see their
son. Upon leaving the apartment, he had twice knocked a car belonging to J., a
close male friend of N., causing damage to the vehicle. The court also found
that on 6 April 2004 at around 1 a.m., the applicant had returned to N.’s
apartment and broken in through a window. Upon entering the apartment against
N.’s will, he had punched J., who had been there with N., and then hit N.
repeatedly. It also found that the applicant had remained in N.’s apartment for
the next three hours against her will, had stubbed out a cigarette on N.’s left
hand and had threatened her with a penknife, with which he had cut her finger.
He had prevented J. and N. from leaving the apartment unless they brought him
his son, who had been staying elsewhere that night. The court also found that
after those three hours had elapsed, the applicant had abducted N. He had
forced her into his car after having ordered J. to take the child to an address
which he would provide later by telephone. The applicant had driven N. to a
petrol station where, with the assistance of two other people - who could not
be identified - she had been immobilised, gagged and blindfolded before being
introduced into another vehicle and driven to an apartment where she had been
subjected to further aggressions. They had culminated in her hands and feet
being tied, being immersed in icy water, thrown on a bed and raped vaginally
and anally. Afterwards she had been obliged to phone J. and give him the
address to which he should bring the child. At the time of the arranged
meeting, the applicant had left the apartment for a short time in which N. had
been given dry clothes by a hooded man who had left the room before the
applicant had come back with J. and the child. They had remained together in
the apartment for approximately an hour, after which the applicant had let them
go under death threats. Lastly, the court found that, when the applicant had
been arrested at Prat de Llobregat Airport (Barcelona), he had been carrying
false identification documents.
The applicant was sentenced as the principal offender for: (i) making very
serious threats to N., to fifteen months’ imprisonment; (ii) breaking and
entering into N.’s home using violence and coercion, to two and a half years’
imprisonment and a fine of nine months’ minimum income with a daily fee of 12
euros (EUR); (iii) causing minor bodily injuries to N., to twelve days’ house
arrest; (iii) causing minor bodily injuries to J., to twelve days’ house
arrest; (iv) N.’s kidnapping under threat, with the aggravating factor of
family ties, to eight years’ imprisonment; (v) J.’s kidnapping, to three years’
imprisonment; (vi) a crime against N.’s moral integrity with the aggravating
factor of family ties, to two years’ imprisonment; (vii) N.’s rape with the
aggravating factor of family ties, to fifteen years’ imprisonment; and (viii)
forgery of official documents, to six months’ imprisonment and a fine of six
months’ minimum income with a daily fee of EUR 12. He was also fined EUR 30,525
for damages.
For the applicant’s above-mentioned conviction the Audiencia Provincial
relied mainly on the alleged victim’s pre-trial statements, which had been
admitted as evidence and read out at the hearing. The credibility of her
testimony was enhanced by the weakness of the applicant’s statement. The trial
court also relied on other evidence. In his statement the applicant had
admitted the veracity of the details in N.’s account that did not have or had minor
criminal implications, such as her changing into clothes belonging to him during
her kidnapping, the damage inflicted on J.’s car, and the fact that J. had
eventually brought him his child at an absolutely inappropriate time. It also
relied on J.’s statement at the hearing; the contradictions of a hearsay
witness for the defence as to the way in which the applicant had entered N.’s
apartment; a medical report stating that the bodily injuries presented by N.
were fully consistent with the aggressions she had reported; the forensic
medical opinion that the bodily injuries presented by the victim fifteen days
after the facts were temporarily and causally consistent with the aggressions
reported; the expert opinion that N. was suffering from a post-traumatic stress
disorder consistent with the facts reported; and, lastly, the court’s direct
assessment of N.’s psychological inability to relive the facts that she had
described - albeit only in part - at the hearing sufficiently accurately and
coherently to evoke clearly what had actually happened. The court considered
that the use as evidence of the victim’s pre-trial statements had not infringed
the applicant’s right to defend himself, as that form of evidence had been
introduced only once it had become clear that N.’s cross-examination was
impracticable and it had been open to challenge by the applicant during the
hearing. The court further considered that the reliability of N.’s statement
had been enhanced when confronted with the applicant’s implausible statement.
The applicant lodged an appeal on points of law with the Supreme Court, which
on 21 February 2007 partially quashed the Audiencia Provincial’s
judgment. The Supreme Court reduced the penalty imposed on the applicant in
respect of kidnapping to bring it into line with the prosecutor’s submissions,
lessened the classification of the offence of making threats and reduced the
penalty imposed on the applicant in that respect, and acquitted him of the
crime against moral integrity because, in the instant case, this crime could be
considered to come under the offence of rape. The remainder of the Audiencia
Provincial’s judgment was upheld.
The Supreme Court maintained that the applicant’s rights to examine witnesses
against him and to be presumed innocent had not been infringed by the trial
court’s decision to admit N.’s pre-trial statements as evidence in the
proceedings. Firstly, the Audiencia Provincial had decided not to pursue
N.’s cross-examination only once it had become clear that it would not be
feasible to attempt to proceed. The trial court had first tried to resolve the
problem by staying the hearing and ordering a medical examination of the
witness with a view to excluding any possibility of feigning on her part and to
adequately assess her apparent inability to give a statement before the
court.When the same difficulties had recurred at the final hearing, the trial
court had ordered that N. should be provided with medical support with a view
to obtaining a direct testimony, which in the end proved impossible despite the
efforts in that regard. Secondly, although the general rule was that witnesses
should always be available for cross-examination at a hearing, the law
permitted that pre-trial statements could be read out in the courtroom as an
alternative when a witness’s testimony could not be produced owing to circumstances
beyond the parties’ control, such as a physical or psychological impediment on
the part of the witness to give a statement at the hearing, provided that the
alleged impediment had been tested. Thirdly, the applicant’s counsel had been
duly summoned to the judicial interview with N. during the investigative stage
of the proceedings, but had failed to attend without providing a justification.
18. The Supreme Court contended that it had
repeatedly stressed that trial courts should take special care in assessing
victims’ statements when they were the sole direct evidence against the
accused. It further reiterated its advice that trial courts should identify
further evidence to corroborate those statements so that they may assess them
objectively. The trial courts should be satisfied that those statements have
not been capriciously changed during the proceedings and that there are no
prior relations between the victims and the accused that could put into
question the credibility of their statement. In the light of those
considerations, the Supreme Court was satisfied that the Audiencia
Provincial had acted cautiously enough when assessing N.’s statement, since
it had relied on corroborating evidence to convict the applicant. The Supreme
Court added that the delay with which N. had reported the facts to the police
could be explained by her fear and by the fact that she had had a child with
the applicant. It further contended that it did not find in N.’s statement any
alteration or substantial change which could be deemed as rendering it
inconsistent and thus weakening its validity.
19. The applicant lodged an amparo appeal with the Constitutional Court.
In a decision served on 3 July 2008, the appeal was declared inadmissible for
being devoid of any constitutional content.
II. RELEVANT DOMESTIC LAW
A. The Constitution
Article 24 of the
Constitution provides:
“1. Everyone has the right to
obtain the effective protection of judges and the courts in the exercise of his
or her legitimate rights and interests, and in no event may he or she go
undefended.
2. Likewise, everyone has the right of access to the ordinary courts
as predetermined by law; to the defence and assistance of a lawyer; to be
informed of the charges brought against them; to a public trial without undue
delays and with full guarantees; to the use of evidence appropriate to their
defence; not to make self-incriminating statements; not to declare themselves
guilty; and to be presumed innocent.”
B. Criminal Procedure
Act
Section 730 of the Criminal Procedure Act
provides:
“In the event that any evidence cannot be produced during the
hearing, a record of the relevant investigation shall be read out, if this is
so requested by any of the parties.”
C. Judicature Act (Law no.
6/1985)
Section 229 of the Judicature Act reads as
follows:
“1. Judicial proceedings shall be mainly oral, particularly
in criminal matters, without prejudice to their being recorded in writing.
2. Statements, oral examinations, testimony,
challenges, inspections, reports, confirmations of expert reports and hearings
shall take place before the judge or court in the presence of the parties, who
may intervene when appropriate and in public, unless otherwise prescribed by
law.
3. Where the judge or court so decides, such
proceedings may be conducted by means of a videoconference or other similar means
allowing the two-way simultaneous communication of images and sound, and the
visual, auditory and verbal interaction of two geographically distant people or
groups of people, provided that the possibility of cross-examination and the
rights of the defence are not endangered.”
THE LAW
I. ALLEGED
VIOLATION OF ARTICLE 6 §§ 1 AND 3 (d) OF THE CONVENTION
The applicant complained that he had not been
given a proper and adequate opportunity, during either the investigative stage
or the hearing, to challenge and question the victim, the sole witness in
relation to all the crimes for which he had been convicted with the exception of
the forgery of official documents, as provided in Article 6 §§ 1 and 3 (d)
of the Convention, which reads as follows:
“1. In the determination of ... of any criminal charge
against him, everyone is entitled to a fair and public hearing ...
3. Everyone charged with a criminal offence has the
following minimum rights:
...
(d) to examine or have examined witnesses against
him and to obtain the attendance and examination of witnesses on his behalf
under the same conditions as witnesses against him.”
The Government contested that argument.
A. Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
1. The submissions of
the parties
(a) The applicant
The applicant argued that his conviction for all
the crimes for which he had ultimately been sentenced, with the exception of
the forgery of official documents, was based exclusively on the statement made
by N. during the investigative stage of the proceedings.
27. In that connection, the applicant
stated that the only evidence on which a court could rely to convict a person
charged with a criminal offence was that produced at the hearing, and that the
respondent Government had not contested the fact that he had been prevented
from challenging and questioning his alleged victim during the hearing.
28. He further argued that his counsel
had failed to attend the pre-trial examination of N. and that therefore he had
not had the opportunity to have her cross-examined, during either the
investigative stage of the proceedings or the hearing.
29. The applicant referred to the
Court’s case-law set out in Mayali v. France (no. 69116/01, 14 June
2005) and Karpenko v. Russia (no. 5605/04, 13 March 2012) to complain that his rights
under Article 6 §§ 1 and 3 (d) of the Convention had been
unacceptably restricted. He blamed the domestic courts for unfairly preventing
him from questioning N., for in his view she had been exempted from cross-examination
without good reason. The applicant referred to page 10 of the Supreme Court’s
judgment, according to which the medical report that had been delivered in view
of the final hearing had not identified any medical impediment to the applicant’s
alleged victim testifying at the trial. He argued that the reason for his
alleged victim’s inability to be cross-examined was not, contrary to what
the domestic courts stated, her alleged post-traumatic stress symptoms -which
had not been medically established - but rather her unwillingness to testify so
as to avoid contradictions with her pre-trial statements.
(b) The Government
The Government contested the applicant’s
argument that his conviction for all the crimes for which he had been
ultimately sentenced, with the exception of the forgery of official documents,
had been based exclusively on the statement made by his victim during the
investigative stage of the proceedings. They argued that it could be easily
inferred from the judgments that the only conviction which could be said to
have been based exclusively or to a decisive extent on the alleged victim’s
statements was the applicant’s conviction for rape.
The Government stressed that the applicant’s
counsel had been duly summoned by the Gavà investigating judge no. 5 to the
examination of the victim he had conducted on 22 July 2004, but had failed to
attend without providing any justification. They further stressed the fact that
the lawyer who had taken over the applicant’s defence from 16 September 2004
had not asked the investigating judge to conduct a new cross-examination of the
victim before the hearing took place.
The Government referred to the Constitutional
Court’s case-law, whereby even though the only valid evidence on which courts
can rely to convict a person charged with a criminal offence is, in principle,
that produced in his presence at a public hearing with a view to adversarial
argument, exceptions to that principle are possible in exceptional
circumstances, for instance if it proves materially impossible for a witness to
make a statement during the hearing owing to his or her mental state. In those
cases, courts are allowed to rely on witnesses’ statements made at earlier
stages of the proceedings, provided, inter alia, that they are read out
in court and the defendant is given an adequate opportunity to challenge them,
as had happened in the present case. The Government further indicated that this
exception was not applicable to cases of physical illnesses of witnesses, since
the Constitutional Court had found in the criminal legislation more appropriate
solutions for this situation, such as at-home interrogations or statements via
video-conference.
The Government further contended that from the
Court’s reasoning in many of its judgments, such as those in the cases of Krasniki
v. the Czech Republic (no. 51277/99, 28 February 2006) and Al-Khawaja
and Tahery v. the United Kingdom ([GC], nos. 26766/05 and
22228/06, ECHR 2011), it could be inferred that fear of death or physical
injuries on the part of a witness or other person, or even the fear that
significant economic losses might be incurred, constitute relevant
considerations that trial courts may take into account in dispensing a witness
from appearing in trial.
In this connection, the Government stated that
the Barcelona Audiencia Provincial had taken all the counterbalancing
measures at its disposal, including procedural safeguards, to compensate the
applicant for the adverse consequences arising from the fact that his victim
could not be cross-examined by him or his counsel during the hearing. The trial
court had made a thorough assessment of the evidence produced in the hearing
and of the credibility of the statements made during and before the hearing.
Moreover, the Government referred to the Barcelona Audiencia Provincial’s reasoning (see paragraph 11 above) in stressing
that the trial court had decided not to pursue the victim’s cross-examination
only once it had become clear that it was completely unfeasible to attempt to
proceed. The Government referred to two medical files on the victim dated 22
July 2004 and 4 November 2005, which they had enclosed with their observations.
The first file indicated that the victim had been afraid for her life,
suffering nervous “alteration” and a sense of helplessness. The second file
concluded that she had been suffering from chronic post-traumatic stress and
had not had the necessary psychological resources to face an examination in
court.
2. The
Court’s assessment
(a) General principles applicable to the present case
The Court reiterates that Article 6 § 3 (d) of
the Convention is a specific aspect of the right to a fair hearing guaranteed
by Article 6 § 1 which must be taken into account in any assessment of the
fairness of the proceedings. Consequently, the complaint will be examined under
the two provisions taken together (see, amongst other authorities, Asch v. Austria, 26 April 1991, § 25, Series A no. 203, and S.N. v.
Sweden, no. 34209/96, § 43, ECHR 2002-V)
The Court further recalls that the admissibility
of evidence is primarily governed by domestic law and that, as a rule, it is
for the national courts to assess the evidence before them. It is also normally
for the domestic courts to decide whether it is necessary or advisable to hear
a witness, since Article 6 does not grant the accused an unlimited right to
secure the appearance of the witness in the court (see S.N. v. Sweden, cited above, § 44). The task of the Court is to ascertain whether the
proceedings as a whole, including the way in which evidence was taken, were
fair (see Doorson v. the Netherlands, 26 March 1996, § 67, Reports of
Judgments and Decisions 1996-II, and Gossa v. Poland, no.
47986/99, § 52, 9 January 2007).
All evidence must normally be produced in the
presence of the accused at a public hearing with a view to adversarial
argument. However, the use in evidence of statements obtained at the stage of
the police inquiry and the judicial investigation is not in itself inconsistent
with Article 6 §§ 1 and 3 (d), provided that the rights of the defence have
been respected. As a rule, those rights require that the defendant be given an
adequate and proper opportunity to challenge and question a witness against him
either when he or she was testifying or at a later stage of the proceedings
(see Unterpertinger v. Austria, 24 November 1986, § 31, Series A no. 110).
When a conviction is based solely or to a decisive degree on statements that
have been made by a person whom the accused has had no opportunity to examine
or have examined, whether during the investigation or at the trial, the rights
of the defence are restricted to an extent that is incompatible with the
guarantees provided by Article 6 (see, in particular, Lucà v. Italy, no. 33354/96,
§ 40, ECHR 2001-II, and Al-Khawaja and Tahery v. the United
Kingdom [GC], nos. 26766/05 and 22228/06, § 119, ECHR 2011).
In this connection, the Court has stated that
paragraph 1 of Article 6 taken together with paragraph 3 requires the
Contracting States to take positive steps so as to enable the accused to
examine or have examined witnesses against him (see, Sadak and Others v.
Turkey (no. 1), nos. 29900/96, 29901/96, 29902/96 and 29903/96, § 67, ECHR
2001-VIII).That measure forms part of the diligence which the Contracting
States must exercise in order to ensure that the rights guaranteed by
Article 6 are enjoyed in an effective manner (see, amongst other
authorities, Colozza v. Italy, 12 February 1985, § 28, Series A no.
89). However, impossibilium nulla obligatio est; provided that the
authorities cannot be accused of a lack of diligence in their efforts to award
the defendant an opportunity to examine the witnesses in question, the
witnesses’ unavailability as such does not make it necessary to discontinue the
prosecution (see Artner v. Austria, 28 August 1992, § 21, Series A
no. 242-A; Mayali v. France, no. 69116/01, § 32, 14 June
2005; and Ž. v. Latvia, no. 14755/03, § 94, 24 January
2008).
In the Court’s case-law, the question whether
there has been compliance with Article 6 §§ 1 and 3 (d) as interpreted by the
Court in the case of Lucà, cited above, has arisen mainly in three different
contexts. The first context concerns the case of so-called “anonymous
witnesses”, in which the identity of a witness is concealed in order, for
instance, to protect him or her from intimidation or threats of reprisals (see,
for example, Doorson, cited above). The second context concerns cases of
“absent witnesses”, where use is made in evidence of the statement of a witness
who does not appear before the court to give evidence in person because he or
she has died, cannot be traced or refuses to appear out of fear or for some
other reason (see, for example, Craxi v. Italy (no. 1),
no. 34896/97, 5 December 2002, S.N. v. Sweden, cited above, Al-Khawaja
and Tahery v. the United Kingdom [GC], nos. 26766/05 and
22228/06, ECHR 2011). Those categories are not mutually exclusive, since
witnesses may be both anonymous and absent (see, for example, Lüdi v.
Switzerland, 15 June 1992, Series A no. 238, and Van Mechelen and Others
v. the Netherlands, 23 April 1997, Reports of Judgments and
Decisions 1997-III). The third context concerns cases of witnesses
who invoke their privilege against self-incrimination (see, for example, Vidgen
v. the Netherlands, no. 29353/06, 10 July 2012).
In those three contexts the Court has always
considered it necessary to carry out an overall examination of the fairness of
the proceedings in order to determine whether the defendant’s rights have been
unacceptably restricted. This has traditionally included an examination of both
the significance of the untested evidence for the case against the accused,
namely whether the untested evidence constituted the sole or decisive evidence
brought against the applicant (see, for example, Kornev and Karpenko v.
Ukraine, no. 17444/04, §§
54-57, 21 October 2010; Caka v. Albania, no. 44023/02, §§ 112-16, 8 December 2009; Guilloury
v. France, no. 62236/00, §§ 57-62, 22 June 2006; Lucà, cited
above, §§ 40-43; and Vidgen, cited above, §§ 45-46), and of the counterbalancing
measures taken by the judicial authorities to compensate the handicaps under
which the defence had laboured (see Doorson, cited above, §§ 73-76;
S.N. v. Sweden, cited above, §§ 49-53; V.D. v. Romania, no.
7078/02, §§ 113-115, 16 February 2010; and, most recently, Al-Khawaja
and Tahery, cited above, §§ 147 and 153-65, and Vidgen, cited
above, § 47).
According to the Court’s case-law, the so-called
“sole or decisive rule” should not be applied in an inflexible manner when
reviewing questions of fairness of the proceedings, because to do so would
transform the rule into a blunt and indiscriminate instrument that runs counter
to the traditional way in which the Court approaches the issue of the overall
fairness of proceedings, namely by weighing in the balance the competing
interests of the defence, the victim, and witnesses, and the public interest in
the effective administration of justice (see Al-Khawaja and Tahery, cited
above, § 146). The Court has thus considered that where a conviction was based
solely or decisively on evidence given by absent witnesses who had not been
available for cross-examination by the defence, the admission as evidence of
those hearsay statements will not automatically result in a breach of Article 6
§ 1. In those cases, however, the Court must subject the proceedings to the
most searching scrutiny. Because of the dangers of the admission of such
evidence, it would constitute a very important factor to balance in the scales
and one which would require sufficient counterbalancing factors, including the
existence of strong procedural safeguards. The question in each case is whether
there are sufficient counterbalancing factors in place, including measures that
permit a fair and proper assessment of the reliability of that evidence to take
place. This would permit a conviction to be based on such evidence only if it
is sufficiently reliable, given its importance in the case (ibid., § 147).
(b) Application of the general principles to the
present case
Having regard to the material before it, the Court concedes that the
statements given by N. during the pre-trial investigation were significant
evidence in finding the applicant guilty of all the crimes with which he had
been charged (with the clear exception of the forgery of official documents).
However, the Court considers that those statements were the sole direct or
decisive evidence only with respect to the facts that had taken place in the
time between N.’s abduction from her apartment and J.’s arrival with N.’s son
at the address where she was being held, for which the applicant was sentenced
to twelve days’ house arrest for inflicting bodily injuries on N. and to
fifteen years’ imprisonment for N.’s rape. The Court will thus, having regard
to the entire domestic proceedings, restrict its analysis to the domestic
courts’ rulings concerning those two convictions.
The Court reiterates that N. was not cross-examined by the applicant or his
counsel, even though she did appear before both the investigating judge and the
trial court with a view to giving evidence in person. The Court observes that
on 22 July 2004 the investigating judge held an interview with N. in which the
applicant’s counsel could have put questions to her. He had been duly summoned
to the interview but had failed to attend without providing a justification
(see paragraph 9 above). It is thus clear that the applicant was given an
opportunity to have N. examined but that his counsel unjustifiably missed that
opportunity. The Court considers that the domestic authorities cannot be
reproached on account of the investigating judge’s decision to carry out the
interview in the absence of the applicant’s counsel. Nonetheless, the Court
holds that that fact is not decisive in concluding that the proceedings were
fair. As has already been said, the Court’s role under Article 6 § 1 of the
Convention is to ascertain whether the proceedings as a whole were fair. In the
circumstances of the case, this requires that the Court examine whether
positive steps were taken by the judicial authorities to enable the applicant
to examine or have examined N. at the hearing, where evidence must be normally
produced.
In this connection, the Court observes that the trial court stayed the
hearing in the light of N.’s incapacity to describe what had happened on
4 and 6 April 2004 and that, once it had been medically ascertained that
N. was suffering post-traumatic stress symptoms, the court ordered that she be
provided psychological support with a view to having her fully cross-examined
at a public hearing. Although a medical examination conducted before the final
hearing took place established that N. was able to give evidence, N. broke down
before the public prosecution had finished examining her. Only after countless
unsuccessful efforts, including medical support, had been made to enable N. to
continue with her statement, the court decided that her pre-trial statements
would be read out as an alternative to direct cross-examination by the parties.
The trial court took into account that N. would not be available for
cross-examination within a reasonable time and that the applicant was in prison
on remand. An expert report confirmed after the hearing that N. had been
suffering from a post-traumatic stress disorder. In the light of the
circumstances, the Court considers that the trial court cannot be accused of
lack of diligence in its efforts to provide the defendant with an opportunity
to examine the witness. Neither can the Court agree with the applicant’s
argument that the trial court unduly exempted N. from cross-examination.
The Court has lastly to examine whether the use
of N.’s pre-trial statements by the domestic courts was accompanied by
sufficient counterbalancing factors, including measures that permitted a fair
and proper assessment of the reliability of that evidence to take place. The
Court reiterates that the only convictions in the instant case which raise an
issue under Article 6 §§ 1 and 3 (d) of the Convention are those of bodily
injuries and rape, in so far as they are based solely or decisively on statements
made by the applicant without cross-examination.
The Court is aware of the difficulties faced by
the domestic courts when dealing with sexual crimes (see, mutatis mutandis, Tyagunova
v. Russia, no. 19433/07,
§ 68, 31 July 2012), which are normally surrounded by secrecy and which
are frequently, whether for fear or other reasons, reported too late for the
carrying out of a full corroborative medical examination. Thus, in many such
cases the sole or decisive evidence for the defendant’s conviction is the
victim’s statement, the truthfulness and credibility of which may be put in
question by the defence at the hearing by means of his or her
cross-examination. In the present case, the victim’s cross-examination proved
impracticable owing to post-traumatic stress symptoms that, as has already been
stated, were medically confirmed (see paragraph 11 above).
48. The Court notes,
however, that the applicant had been given the opportunity to put questions to
N. during the investigative stage of the proceedings but his counsel had failed
to attend the interview (see paragraph 9 above). In those circumstances,
the interests of justice were obviously in favour of admitting N’s statements
in evidence. The Court observes that those statements were read out before the
trial court and that the applicant was allowed to challenge their truthfulness
by giving his own account of the facts, which he duly did. The Court further
observes that the domestic courts carefully compared both versions of the
facts, which partially coincided, particularly those aspects that did not
involve the commission of any criminal offence or that had minor criminal
implications. They deemed the applicant’s version weak and inconsistent, and
that of N. logical and sufficiently detailed to eliminate any suspicion of
simulation or revenge. The Court notes in this respect that the domestic courts
also took into account the statement given by N. at the hearing which, although
incomplete, served to corroborate her pre-trial statements (see paragraph 11
above). The reliability of N.’s statements was further supported by indirect
evidence, such as the fact that she had been abducted from her apartment by the
applicant and that when she had been released by the applicant she had been
wearing different clothes belonging to the latter, and by the medical opinions
and reports confirming that her bodily injuries and psychological condition
were consistent with her account of the facts (see paragraph 15 above). Indeed,
the use of all this corroborating evidence led the Supreme Court to conclude
that the trial court had acted cautiously enough in the treatment of N.’s
statements (see paragraph 18 above).
Against this background, and viewing the
fairness of the proceedings as a whole, the Court considers that there were
sufficient counterbalancing factors to conclude that the admission in evidence
of N.’s statements did not result in a breach of Article 6 § 1 read in
conjunction with Article 6 § 3 (d) of the Convention.
Accordingly, in the light of the foregoing
considerations, the Court considers that there has been no violation of Article
6 §§ 1and 3 (d) of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
. The
applicant submitted various other complaints under Articles 3, 6 §§ 1, 2
and 3 (c), and 13 of the Convention. However, in the light of all the material
in its possession, and in so far as the matters complained of are within its
competence, the Court finds that they do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols. It follows that this part of the application is manifestly
ill-founded and must be rejected in accordance with Article 35 §§ 3
(a) and 4 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaint concerning Article 6
§§ 1 and 3 (d) admissible and the remainder of the application inadmissible;
2. Holds that there has been no violation of
Article 6 §§ 1 and 3 (d) of the Convention.
Done in English, and notified
in writing on 19 February 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of
Court.
Santiago Quesada Josep
Casadevall
Registrar President
