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.

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.

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.

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.