FIFTH SECTION
CASE OF A.J. AND L.E. v. SPAIN
(Applications nos. 40312/23 and 40388/23)
 
 
JUDGMENT
 
Art 3 and Art 8 (procedural) • Positive obligations • Authorities’ failure to conduct an effective investigation into applicants’ complaints of sexual assault involving chemical submission • Systematic loss and destruction of potentially crucial evidence whilst in police custody not counter-balanced by other investigative measures • Insufficient guarantees of independence • Manifestly inadequate response to investigative failures
 
Prepared by the Registry. Does not bind the Court. STRASBOURG
23 October 2025
 
FINAL
 
23/01/2026
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of A.J. and L.E. v. Spain,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
 Kateřina Šimáčková, President,
 María Elósegui,
 Gilberto Felici,
 Diana Sârcu,
 Mykola Gnatovskyy,
 Vahe Grigoryan,
 Sébastien Biancheri, judges,
and Victor Soloveytchik, Section Registrar,
Having regard to:
the applications (nos. 40312/23 and 40388/23) 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 two Spanish nationals, A.J. and L.E. (“the applicants”), on 3 November 2023;
the decision to give notice to the Spanish Government (“the Government”) of the complaints under Articles 3 and 8 of the Convention concerning the alleged ineffectiveness of the criminal investigation into sexual assault;
the decision not to have the applicants’ names disclosed;
the parties’ observations;
Having deliberated in private on 30 September 2025,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns the alleged failure of the Spanish authorities to conduct an effective investigation into the applicants’ complaints of sexual assault by means of chemical submission, as well as the subsequent loss and manipulation of crucial evidence held in police custody. The applicants complained in particular under Articles 3 and 8 of the Convention. THE FACTS
2. The applicants live in Pamplona. They were represented by José Luís Beaumont Aristu, a lawyer practising in Pamplona. 3. The Government were represented by José Antonio Jurado Ripoll, Co‑Agent. 4. The facts of the case may be summarised as follows. ALLEGED SEXUAL ASSAULTS
5. On the night of 7 to 8 December 2016 the applicants went to a bar in Pamplona. According to their account, they met two men, D.C.M. and R.G.S., with whom they drank alcohol. The applicants alleged that from the time they were at the bar until they awoke the following morning, they had no recollection of events. 6. The applicants stated that they regained consciousness the following morning in the residence of one of the men, finding themselves undressed and with the physical sensation of having engaged in sexual intercourse. They alleged that they had been subjected to chemical submission through the administration of substances that rendered them unconscious and unable to consent to sexual acts. 7. On 11 December 2016, the first applicant (A.J.) attended a health centre for medical examination. The medical report noted the absence of genital lesions but activated the protocol for cases of suspected sexual assault involving chemical submission, resulting in notification to the police. The second applicant (L.E.) did not seek immediate medical attention. POLICE INVESTIGATION AND LOSS OF EVIDENCE
8. Following receipt of the medical report, the National Police Family and Women’s Unit (UFAM) commenced an investigation. 9. On 27 December 2016 the police arrested D.C.M. and R.G.S. On 29 December 2016, Investigating Court No. 4 of Pamplona questioned both men, who acknowledged having had sexual intercourse with the applicants but maintained that it had been consensual. The court imposed restraining orders against both men prohibiting them from approaching the applicants. 10. The case was then transferred to Investigating Court No. 1 of Pamplona, where formal criminal proceedings were opened on 3 January 2017. 11. During the course of the investigation, it emerged that R.G.S. was the brother-in-law of a police officer assigned to the UFAM unit responsible for investigating the case. 12. In addition, several pieces of potentially crucial evidence subsequently disappeared or were compromised while in police custody. Firstly, the full forensic report derived from the analysis of R.G.S.’s mobile telephone, which had been prepared by the national police forensic laboratory in Madrid and sent to Pamplona on 11 April 2017, disappeared entirely. Secondly, the video surveillance footage from the bar where the applicants and the accused had met was found to be partially lost and altered, with certain segments missing or manipulated. Thirdly, the hard drive used to store the forensic data from the mobile telephones of both suspects was found to have been wiped and overwritten, resulting in the loss of all its contents, including backup copies of the extracted mobile data. DECISIONS BY DOMESTIC AUTHORITIES
13. By decision (auto denegatorio del procesamiento) of 20 November 2018, Investigating Court No. 1 of Pamplona declined to prosecute the suspects. While acknowledging the seriousness of the allegations and expressly finding the applicants’ accounts to be credible and without ulterior motive, the court concluded that there was insufficient evidence to establish non‑consensual sexual acts. The applicants’ inability to recall the events was acknowledged, but the court noted that no toxicological evidence had been obtained in time to support the claim of chemical submission. Although physical discomfort and injuries were reported, they could not be definitively linked to the alleged events. The forensic examination did not reveal injuries typically associated with violent sexual assault. The court further noted that while the suspects exchanged vulgar messages after the event, these were not probative of criminal conduct. The legal threshold of reasonable suspicion (indicios racionales de criminalidad) was therefore not met. Subsequently, in light of the applicants’ allegations concerning serious irregularities in the handling of forensic material by police officers involved in the investigation, the judge opened separate proceedings to examine potential misconduct and evidence tampering (see paragraphs 25 to 28 below). 14. On 8 October 2021 Investigating Court No. 1 issued an order concluding the proceedings without bringing charges (auto de conclusión del sumario). This decision restated the reasoning of the prior decision in light of developments since 2018. The court emphasised that the evidence collected over nearly five years of investigation still did not allow the judicial threshold for indictment to be met. Its assessment was based on a comprehensive review of available evidence, including: forensic analysis of the applicants’ hair samples which revealed no substances consistent with chemical submission but determined that both applicants were taking prescription medication (methylphenidate for one applicant and brompheniramine for the other) which could have increased the effects of alcohol on the nervous system, causing in particular impairment of thinking and judgment; testimony from taxi drivers who transported the parties on the night in question; witness statements from friends of the applicants; testimony from the bar staff; examination of the suspects’ bank accounts to determine whether they had purchased any suspect chemical substances; search and seizure of the suspects’ residences; analysis of available WhatsApp conversations from the suspects’ devices; police reports concerning video footage from security cameras at the bar (including descriptions and specific frames, since the original recordings had been lost, see below); and medical reports from both applicants. 15. The court reasoned that whilst the applicants’ testimony was fully credible, and the suspects had acknowledged that sexual intercourse had occurred, the available evidence failed to prove beyond reasonable doubt that the suspects either had administered substances to render the applicants unconscious or were aware of the applicants’ lack of consciousness when engaging in sexual relations. The court noted that neither the applicants nor any witnesses had described a change in their behaviour consistent with rapid intoxication by submission drugs such as GHB (gamma-hydroxybutyrate) or “burundanga” (street name for scopolamine). In particular, the barman who had previously known one applicant had not observed any symptoms which attracted his attention. The taxi driver who took the group from the bar to the flat where the alleged offences took place had likewise observed nothing unusual in the applicants’ condition during the journey. A friend of one applicant who was familiar with her usual demeanour noted something unusual in her behaviour but not to a degree sufficient to prompt intervention, and he “took his leave normally”. The court further observed that, since the suspects were entirely unacquainted with the applicants, the state of disinhibition displayed at the bar would not necessarily have appeared unusual to them, as they could not distinguish between the applicants’ customary behaviour and conduct attributable to impaired faculties. 16. The court acknowledged that the investigation had been “notably affected” by procedural irregularities and the disappearance of digital evidence, but determined that these factors did not compensate for the lack of substantive evidence. It concluded that, even taking into account the shortcomings of the investigation, the investigative efforts had been exhaustive but had not produced evidence sufficient to substantiate a charge. The court emphasised that three separate investigations had been opened in respect of the irregularities but held that those matters did not alter the assessment of the evidentiary value of the material collected in the main proceedings. 17. In their submission of 2 March 2022, the applicants, relying on Article 627 of the Criminal Procedure Act, emphasised that they did not accept the closure of the main investigation precisely because the three separate investigations were still pending; they asked the Audiencia Provincial to return the file to the investigating judge so that those investigations could be completed. 18. On 23 June 2022 the Navarra Audiencia Provincial upheld the order concluding the investigation. The court accepted that evidence had disappeared during the investigation and that separate proceedings had been opened to address those irregularities. However, it found that the loss of evidentiary material did not undermine the overall sufficiency of the investigation. The court referred to the inconclusive hair analysis, medical documentation, police interviews, and video recordings from the bar. It agreed with the lower court that the evidence available did not support the theory that the suspects had administered drugs to incapacitate the applicants, nor that they had engaged in non-consensual acts. The messages sent by the suspects in the days following the events were found to be reprehensible in tone, but not sufficiently probative of criminal liability. The court concluded that the investigative judge had conducted an adequate inquiry, and no further steps were warranted. 19. On 9 July 2022 Investigating Court No. 1 issued an order for provisional dismissal of the case (auto de sobreseimiento provisional). The court considered that all possible investigative avenues had been exhausted and that none of the elements collected, including forensic, testimonial and digital evidence, established the existence of a criminal offence. 20. The applicants’ appeal (recurso de súplica) against that order was dismissed by the Audiencia Provincial on 12 September 2022. The court held that the dismissal had been legally correct and proportionate. It reaffirmed that no new evidence had been identified and that the possibility of reopening the case remained open in the event that one of the three separate investigations into evidence loss produced new facts. Until then, however, the matter was considered closed. 21. The applicants filed an action for annulment of the proceedings (incidente de nulidad de actuaciones), arguing that the closure of the investigation violated their fundamental rights under the Spanish Constitution and the Istanbul Convention. Relying on Articles 49 and 50 of that treaty, which oblige the authorities to ensure prompt, evidence-based investigations into violence against women, and further citing Articles 1, 2 § 1, 3, 56 and 71, they argued that the loss of evidence and the lack of diligence had deprived them as female victims of sexual violence within the meaning of the Istanbul Convention of the procedural safeguards guaranteed by it. They also drew parallels between their case and that of Iribarren Pinillos v. Spain (no. 36777/03, 8 January 2009), in which the Court found violations of Articles 3 and 6 of the Convention on account of what the applicants’ lawyer described as “scant judicial interest in investigating a brutal assault on a citizen of Pamplona”. 22. On 26 October 2022 the Audiencia Provincial dismissed their appeal. It considered that the issues raised had already been the subject of judicial determination in earlier decisions. The disappearance of evidence had been investigated and acknowledged, and separate proceedings had been established to address the possible misconduct of public officials. The application was therefore held to be inadmissible as it merely sought to reopen issues already adjudicated. 23. The applicants lodged an amparo appeal with the Constitutional Court, arguing that they had been denied their right to dignity, physical and psychological integrity, the right to an effective remedy, to a fair and public trial, to use pertinent means of proof for their defence, to equality before the law and protection against discrimination, and to proceedings within a reasonable time. 24. By decision of 6 July 2023, the Constitutional Court declared the amparo appeal inadmissible on procedural grounds, holding that the applicants had not sufficiently raised their fundamental rights claims during the ordinary proceedings. As a result, the appeal was not admitted for examination on the merits. INVESTIGATIONS INTO LOSS OF EVIDENCE
25. By an order of 18 February 2019, Investigating Court No. 1 ordered that the matter concerning the alleged disappearance and manipulation of police evidence be referred for separate investigation. Following an appeal by the applicants, the Audiencia Provincial directed on 18 December 2019 that all matters should be investigated within the original case file as connected offences. On 11 June 2021 three distinct proceedings under the same case number and within the same judicial jurisdiction were opened, each concerning a separate aspect of the alleged misconduct by police officials. 26. The first separate investigation concerned the handling of digital forensic evidence, in particular the mobile telephones seized from D.C.M. and R.G.S., the deletion of data from a forensic hard drive sent by the General Directorate of the Scientific Police, and the disappearance of a report concerning D.C.M.’s device. The report had been prepared in Madrid and was confirmed to have arrived in Pamplona, where it was accessed by officers from the UFAM unit of the Provincial Judicial Police Brigade of Navarra. Among those officers was the brother-in-law of R.G.S., who was identified during the arrest of D.C.M. when police inspecting his mobile device observed an image of a child recognised by the lead investigator. That officer was later formally included in the judicial investigation, alongside three others who had had access to the data. Between July 2021 and April 2023 statements were taken from the four officers, including the relative of the suspect. On 13 June 2023 the investigating judge provisionally discontinued the investigation, finding insufficient evidence that the disappearance of the report or deletions from the devices had been intentional. On 4 July 2023 the applicants filed an appeal seeking the continuation of the proceedings. On 9 February 2024 the Audiencia Provincial dismissed the appeal, holding that it had not been established who had accessed the device during the relevant period or whether that access had resulted in the deletions. 27. The second separate investigation related to the manipulation and subsequent disappearance of video footage from the bar when the events commenced. The investigation sought to determine whether the police officer who had transferred the videos into the case file had altered or removed relevant content. Statements were taken from several officials between July and October 2021. The technician responsible for the bar’s camera system stated that portions of recordings could have been omitted when exported. On 8 June 2022 the investigating judge ruled that there was no evidence to show that the police officer responsible for copying the recordings had destroyed or concealed evidence or committed any criminal offence. 28. The third separate investigation concerned the deliberate erasure of the hard drive containing the forensic reports. The applicants had raised the issue of the storage device in September 2018, alleging that key forensic materials had not been included in the evidence file. A police memorandum dated February 2019 confirmed that the storage device had been emptied by the Chief Commissioner of the Provincial Scientific Police Department of Navarra, along with two subordinate officers, while the order for preservation remained in force. Proceedings were opened on 11 June 2021 but no statements were taken from the officers concerned. On 25 August 2021, the judge ruled that no criminal offence had been committed and closed the case. On 9 September 2021 the applicants appealed. The Audiencia Provincial dismissed the appeal by decision of 14 March 2022. 29. In parallel to the judicial inquiries, the Policía Nacional opened an internal disciplinary investigation (Información reservada 4/2019) to examine possible disciplinary breaches arising from the loss and manipulation of digital forensic evidence (infidelidad en la custodia de documentos y falsedad) by certain members of the police force, including a UFAM officer who was the brother-in-law of R.G.S. The disciplinary inquiry was conducted by the inspection services of the Policía Nacional and was based on events overlapping with the subject of the judicial investigation. In accordance with the regulations on the disciplinary regime of the National Police Corps, the administrative file was formally opened but remains suspended pending the outcome of the criminal proceedings. The Government submitted that no final disciplinary findings could be issued until a binding judicial determination had been reached in the connected criminal matters. RELEVANT LEGAL FRAMEWORK
Domestic lawSpanish Constitution

30. Article 10 § 1 affirms that human dignity, the free development of the personality and the inviolable rights inherent to the person constitute the foundation of the political order and of social peace, and that these rights are binding on all public authorities. 31. Article 14 lays down the principle of equality before the law, prohibiting any discrimination on grounds of birth, race, sex, religion, opinion or any other personal or social condition or circumstance. 32. Article 15 provides that everyone enjoys the right to life and to physical and moral integrity and that no one may in any circumstance be subjected to torture or to inhuman or degrading punishment or treatment. 33. Article 18 § 1 guarantees the right to honour to personal and family privacy and to one’s own image. 34. Article 24 § 1 confers the right to obtain effective judicial protection and forbids leaving anyone undefended. Criminal Code (Organic Law no. 10/1995)
35. Article 181 § 1, as it was in force at the time of the alleged assault and until 6 October 2022, defined sexual abuse as non-consensual acts against another person’s sexual freedom punishable by imprisonment of one to three years or a fine. Article 181 § 2 provided that sexual abuse is deemed non‑consensual when the victim is unconscious or mentally incapacitated or when the offender overcomes the victim’s will by means of narcotics drugs or other suitable substances. 36. Article 413 provides that any authority or public officer who knowingly steals destroys cancels or conceals documents entrusted to his custody commits an offence punishable by imprisonment a fine and special disqualification. Criminal Procedure Act
37. Article 13 stipulates that preliminary enquiries are intended to secure evidence liable to disappear to collect and safeguard items useful for verifying the offence and identifying the offender and to protect victims and witnesses. 38. Article 330 provides that where the traces of an offence have disappeared the investigating judge must ascertain how their disappearance occurred and gather any obtainable evidence concerning the offence. 39. Article 627 entitles any party that disagrees with the decision to close the investigation to state that lack of conformity before the Audiencia Provincial and to seek revocation of the closure order and the return of the case to the investigating judge for the performance of the outstanding steps. 40. Article 641 requires the provisional discontinuance of proceedings where the perpetration of the offence is not duly established or where the evidence is insufficient to accuse a specific person. International MATERIALConvention on Preventing and Combating Violence against Women and Domestic Violence (“the Istanbul Convention”)

41. Article 1 § 1 (a) provides that the Convention, which entered into force in respect of Spain on 1 August 2014, has, inter alia, the objective of “protect[ing] women against all forms of violence ... and prevent[ing], prosecut[ing] and eliminat[ing] violence against women”. Article 2 § 1 stipulates that the Convention “shall apply to all forms of violence against women, including domestic violence”. Article 3 (a) defines “violence against women” as “a violation of human rights and a form of discrimination against women” encompassing “all acts of gender-based violence that result in, or are likely to result in, physical, sexual, psychological or economic harm or suffering to women”. 42. Article 36 § 1 (a) requires Parties to criminalise “the intentional conduct of engaging in non-consensual vaginal, anal or oral penetration of a sexual nature of the body of another person with any bodily part or object”. Article 49 § 1 obliges States to ensure that investigations and judicial proceedings relating to all forms of violence covered by the Convention are carried out “without undue delay”, while respecting the rights of victims at every stage. 43. Article 50 §§ 1 and 2 impose a duty to guarantee a prompt and adequate police response, effective protection and “immediate evidentiary and investigative measures” in respect of offences falling within the Convention. Article 56 § 1 (d) secures victims the right “to be heard, to supply evidence and have their views, needs and concerns considered” in proceedings concerning violence covered by the Convention. Recommendation 1777 (2007) on sexual assaults linked to “date-rape drugs”
44. The Recommendation, adopted by the Parliamentary Assembly of the Council of Europe on 22 January 2007, expressed concern at the growing number of reports of sexual violence involving victims who had unknowingly been placed under the influence of substances referred to as “date-rape drugs”, including Rohypnol, GHB and Ketamine. It noted that the overwhelming majority of such victims were women and girls, most of whom were subjected to rape. The Assembly underlined the particular evidentiary difficulties in establishing lack of consent, given that the effects of these drugs could resemble voluntary alcohol consumption to external observers, while also reducing victims’ natural inhibitions. This made it especially difficult to demonstrate that the perpetrator had engaged in sexual activity without the victim’s consent, even where the victim was able to identify the perpetrator, which was frequently impeded by drug-induced unconsciousness and/or amnesia. The Assembly recommended that member States adopt specific measures to ensure that victims received prompt medical and psychological assistance and were informed of the possibility of undergoing tests and reporting the offence. Such measures were to include the training of staff in public establishments such as bars and pubs, the provision of testing kits and training programmes for those interviewing and assisting rape victims, the standardisation of policing methods and forensic techniques, and the revision of legislation on rape and sexual assault so as to require that the victim had both the freedom and the capacity to consent to sexual relations. THE LAW
JOINDER OF THE APPLICATIONS
45. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION
46. The applicants complained that the authorities failed to conduct an effective investigation into their allegations of sexual assault involving chemical submission and that the numerous deficiencies in the investigation, including the loss and manipulation of evidence by the police and an excessive length of the proceedings, violated their rights under Articles 3 and 8 of the Convention, which read as follows:
Article 3
“No one shall be subjected ... to inhuman or degrading treatment ...”
Article 8
"Everyone has the right to respect for his private ... life ...”
AdmissibilitySubmissions by the parties

(a)   The Government
47. The Government submitted that the application should be declared inadmissible for failure to exhaust domestic remedies on three grounds. 48. First, the applicants had not invoked rights equivalent to Articles 3 and 8 of the Convention before the domestic courts until their constitutional appeal, which was declared inadmissible precisely because they had not raised fundamental rights violations in the ordinary judicial proceedings. This deprived the domestic courts of the opportunity to examine and remedy any potential violations. 49. Second, the applicants had failed to appeal the Audiencia Provincial’s order of 23 June 2022 confirming the conclusion of the summary proceedings. A remedy by way of recurso de súplica was available against that order, yet the applicants chose not to pursue it, thereby acquiescing that the proceedings would conclude without prosecution of any of the suspects. 50. Third, the applicants had not pursued civil liability proceedings against the State for the alleged shortcomings of the police investigation. (b)   The applicants
51. The applicants maintained that they had consistently invoked their rights under the Convention before the domestic courts, submitting that they had done so on multiple occasions before the Investigating Courts, the Navarra Audiencia Provincial, and specifically before the Constitutional Court in their appeal for constitutional protection. 52. As regards the Government’s argument that they had failed to appeal the Audiencia Provincial’s order of 23 June 2022, the applicants submitted that they had pursued all available remedies within the criminal justice system. They argued that the substance of their complaints concerning the ineffective investigation and the authorities’ failure to protect their rights had been raised throughout the domestic proceedings. 53. Regarding the suggestion that they should have pursued civil liability proceedings against the State, the applicants argued that such proceedings would not have addressed the core of their complaint, which concerned the State’s failure to conduct an effective criminal investigation into serious sexual offences and the systematic loss of evidence whilst in police custody. They submitted that effective deterrence against serious crimes such as sexual assault required criminal law mechanisms rather than civil remedies.

Article of the Convention at issue: Article 8
Outcome: violation