GONZÁLEZ NÁJERA v. SPAIN
Inadmissible
Alvina Gyulumyan;Johannes Silvis;Josep Casadevall;Luis López Guerra
1. The applicant, Mr Eduardo González Nájera, is a Spanish national who was born in 1974. He is currently serving a prison sentence in Logroño. He was represented before the Court by Mr E.J. Mateo Ayala and Mr C. Fuertes Iglesias, lawyers practising in Zaragoza. 2. The facts of the case, as submitted by the applicant, may be summarised as follows. 3. On 15 October 2008, within the space of three hours, the mother and the father of two different five-year-old girls separately contacted the Logroño National Police Headquarters on account of suspicions that their children had been sexually abused by the applicant, who was their psychomotor development teacher. They reported that their children had told them that the applicant had introduced his hand through their underwear and had touched their pubic region and their genitals while they were doing physical exercises. 4. On 16 October 2008 the applicant was arrested. In his statement to the police, in which he was assisted by counsel, the applicant denied the accusations. On that same day, parents of three other girls in the same school class reported similar facts to the police. 5. On 17 October 2008 the applicant was brought before an investigating judge. In his statement to the judge the applicant confirmed his statement to the police. He was released on remand subject to certain conditions. A non-molestation order was issued against him for the protection of the minors. The applicant appointed counsel and a legal representative for his defence and representation before the courts. 6. On 23 and 24 October 2008 the parents of two other under-age girls contacted the police to report incidents involving their children similar to those reported by the above-mentioned parents. Their daughters had told them that the applicant had touched their genitals. 7. On 27 October 2008 the investigating judge requested that the forensic psycho-social team in the Logroño courts perform an examination of the first five alleged under-age victims and of the applicant. On 20 November 2008 the examination of the minors was extended to include the last two girls whose parents had made a criminal complaint. The report on the minors was prepared by a forensic social worker and a forensic social psychologist. Their interviews with the minors were all video-recorded. The report on the applicant was prepared by a different forensic psychologist. 8. On 9 and 23 February 2009 the psychological reports were submitted in writing to the investigating judge. They were added to the case file. The applicant was provided with a copy of the report on the minors. 9. On 28 May 2009 the applicant made a request to the investigating judge that the forensic psycho-social team who had interviewed the minors submit all notes and documents which had been put at their disposal by the school personnel and cited in the report. The investigating judge requested those notes and documents from the members of the forensic psycho-social team with a view to providing the applicant with them. 10. On 24 July 2009 the forensic psycho-social team informed the investigating judge that they had not kept notes of the interviews. All information deemed important had been included in the final report and the notes destroyed. 11. On 11 September 2009 the investigating judge brought the investigative stage of the proceedings to a close and made the case file available to the parties with a view to holding a public hearing. The applicant did not appeal against that decision. The public prosecutor accused the applicant of six counts of child abuse. The private prosecutor accused him of seven counts of child abuse. In his statement of defence the applicant denied the charges. 12. On 5 October 2010 a public hearing took place before the Logroño criminal judge no. 2. The applicant was defended by counsel of his own choice. The applicant, the parents and the alleged victims’ two school tutors were questioned. The video-recording of the forensic experts’ interview with the minors was played in its entirety and the members of the forensic psycho-social team were questioned in relation to the report they had produced. They confirmed the contents of their report. The alleged under-age victims were not questioned at the hearing since none of the parties to the proceedings had so requested. 13. On 2 November 2010 the Logroño criminal judge no. 2 sentenced the applicant to twelve years’ imprisonment as a principal on six counts of sexual abuse of children. He was acquitted of one count of sexually abusing a child. The judge found that on 13 October 2008 the applicant, driven by an impulse to satisfy his lustful desires, had asked for volunteers to lead their classmates in the exercises; that he had selected multiple volunteers, including the six female victims, taking them away from the group in turn; that he had brought the under-age victims close to him and that whilst practising the exercises he had touched their genitals, concealing his actions behind the minors’ smocks. 14. In reaching this conclusion the judge relied mainly on the statements given by the under-age victims to the two members of the forensic psycho-social team. Those interviews had been video-recorded and played in their entirety at the hearing. The judge emphasised that two of the seven minors interviewed had repeated in a spontaneous fashion what they had previously said to their parents and that the other four had given their account of the facts after the experts had asked them whether anything particular had happened in the psychomotor development class on the specific date of the events. The answers provided by these six minors were consistent with regard to both the circumstantial evidence and the way in which the events had taken place. The seventh child who had been interviewed had not given an account of the events. 15. The judge further relied on the expert psycho-social report on the minors, the findings of which the two authors had confirmed at the hearing. The experts were available for cross-examination at the hearing. According to them, the reliability of the alleged victims’ accounts ranged from “indeterminate” to “most probably reliable” on a scale consisting of five different values of credibility: reliable, most probably reliable, indeterminate, probably not reliable and not reliable. The report contained a detailed assessment of each alleged victim’s statement, of its consistency with other statements, and of the reasons supporting their conclusions. The judge also relied on hearsay evidence given by some of the minors’ parents and the tutors of the two classes to which the minors concerned belonged. 16. The judge rejected the applicant’s submission that he should be acquitted for lack of direct evidence against him. The applicant had argued that he had not examined the minors either in the investigative stage of the proceedings or at the hearing and that therefore the minors’ pre-trial statements should not be admitted as valid evidence against him because he had not been present during their examination. 17. The judge conceded that the minors had not been cross-examined by the applicant or his counsel either at the investigative stage of the proceedings or at the hearing. This fact, however, did not prevent the minors’ statements being admitted as evidence against the applicant. The judge pointed out that neither of the parties to the proceedings had requested that the children attend the hearing as witnesses. She further referred to domestic case-law and to international instruments regulating children’s rights, stating that in sex-related criminal cases involving minors it was possible to dispense with their cross-examination in open court if it was deemed inappropriate having regard to the victims’ young age or its probably adverse psychological impact, and that their statements could be submitted at the hearing through other means. 18. In this connection, the judge emphasised that in the present case an expert report had been prepared by a forensic psycho-social team whose members had confirmed its contents in open court; that for the preparation of that report the experts had conducted a series of interviews with the minors; that the report had been passed on to the applicant during the investigative stage of the proceedings; and that those interviews had all been video-recorded and played at the trial. The applicant had been able to prepare his defence and challenge the truthfulness of the minors’ statements, submit evidence in his favour, and cast doubt on the accuracy or scientific value of the expert report. The fact that the full content of the interviews had not been transposed into the final expert report was irrelevant in so far as the video-recording of the interviews had been viewed in its entirety in open court. 19. The applicant appealed against the first-instance judgment before the La Rioja Audiencia Provincial. He invoked his rights to be presumed innocent and to a fair hearing. 20. On 2 May 2011 the La Rioja Audiencia Provincial upheld the applicant’s conviction. The appellate court emphasised that the applicant had requested the production of the evidence requested by the public and private prosecutors, who had asked that the interviews conducted with the minors be viewed and that the experts who had conducted those interviews be questioned in open court. The prosecutors had not requested that the minors be questioned and neither had the applicant. The court considered that in admitting those statements in evidence, the first-instance judge had struck a proper balance between the protection of the minors from secondary victimisation and the applicant’s right to defence. The applicant’s right had been respected in so far as the video-recording of the interviews had been played in its entirety at the hearing and the members of the psycho-social team had been available for cross-examination by the applicant. 21. The appellate court emphasised that the statements given by the six under-age victims were consistent and that they were corroborated by hearsay evidence, by the expert report and by the statements made at the hearing by the experts who had prepared the report. As regards the expert report, the court pointed out that the applicant had been provided with a copy immediately after it was produced and that he had not raised any objection to or submitted an appeal against the investigating judge’s decision to request its production and inclusion in the case file. The members of the psycho-social team had confirmed its contents at the hearing. The court praised the report for its completeness and accuracy and emphasised that its findings were based on a renowned scientific method called Statement Validity Assessment (SVA), of which the core component was a criteria-based content analysis (CBCA) of the credibility of accounts. It was also pointed out that the applicant had failed to submit any evidence that raised doubts as to the reliability of the report. 22. On 28 June 2011 the applicant lodged an amparo appeal with the Constitutional Court, invoking his constitutional rights to a fair hearing and to be presumed innocent. He argued that he could not be blamed for not having requested the cross-examination of the minors at the hearing in so far as it was incumbent on the prosecution to prove him guilty and therefore to request the production at the hearing of all the evidence against him. This failure on the part of the prosecutors had prevented him from cross-examining the alleged victims, thereby breaching his right to a fair hearing. The applicant further argued that the only direct evidence on the basis of which the courts had found him guilty consisted of the statements given by the minors to the experts at the investigative stage of the proceedings but contended that those statements should have been excluded from the evidential material as they had been obtained in breach of his right to defence. The interviews with the minors had been conducted without his being present. The exclusion of that evidence would result in his acquittal of all the alleged offences for lack of sufficient evidence to override his right to be presumed innocent. The evidence against him was in any case insufficient to prove him guilty. 23. On 11 March 2013 the Constitutional Court dismissed the applicant’s amparo appeal. It stated that the first issue raised by the applicant concerned the potential restrictions which could be placed on the right to defence of a person charged with sexual offences vis-à-vis his alleged victims, taking into account the undesirable emotional and psychological impact that cross-examination in open court might have on the latter. 24. The Constitutional Court reiterated that as a general rule defendants should be afforded the opportunity to cross-examine their victims in open court. However, this rule allowed for certain exceptions. Making copious citations from the Court’s case-law, the Constitutional Court referred to the special nature of criminal proceedings concerning sexual offences, which often represented an ordeal for the victims, and to the fact that this aspect was even more clearly apparent in cases involving minors. The courts were allowed to take measures for the purpose of protecting under-age victims, including the possibility of dispensing with their cross-examination. This measure should nonetheless be reconciled with the adequate and effective exercise of the rights of the defence. Courts were thus required to implement safeguards compensating defendants for the disadvantage of having been prevented from cross-examining the direct witnesses to the offences in open court. 25. The Constitutional Court went on to state that in sex-related offences the only direct evidence was frequently the victim’s own statement, the other evidence normally being hearsay evidence or expert evidence assessing the credibility of the victim’s account. In this connection, the legal debate usually turned on the legal safeguards surrounding the examination of the minor and the manner in which his or her statements could be used as evidence at the hearing. The Constitutional Court stated that in cases such as the instant one the constitutional standard of review coincided with the standard established by the Court in the case of A.S. v. Finland (no. 40156/07, § 56, 28 September 2010), according to which: “the suspected person shall be informed of the hearing of the child, he or she shall be given an opportunity to observe that hearing, either as it is being conducted or later from an audiovisual recording, and to have questions put to the child, either directly or indirectly, in the course of the first hearing or on a later occasion.” 26. Turning to the instant case, the Constitutional Court stated that the under-age girls had not been questioned by the police or the public prosecutor or the investigating judge. They had been examined by a social worker and a psychologist from the forensic psycho-social team from whom the investigating judge had commissioned a report. The relevant legislation provided for that possibility, which had been accepted as a constitutionally valid option by the Constitutional Court in a previous judgment. The court emphasised that ‒ given the young age of the minors, all of whom were below the age of six at the material time ‒ their examination by experts was advisable not only in order to prevent additional unnecessary damage but also to reinforce the reliability of their statements. 27. The Constitutional Court stated that the investigating judge had made the psycho-social report available to the parties, including the applicant’s counsel, shortly after its production by the experts. However, the applicant had limited himself to requesting some additional documents (see paragraph 9 above) three months later. He had not requested that a fresh examination of the minors be conducted in his presence. The legislation by no means prevented such a course of action but the applicant had not availed himself of that possibility. In his subsequent statement of defence, the applicant had not requested the cross-examination of the alleged victims in open court, which reinforced the inference that his rights had been duly respected at the pre-trial stage of the proceedings. The applicant’s failure to request the victims’ cross-examination meant that the judicial authorities dealing with his case did not have to decide whether or not the applicant should have been given the opportunity to have his alleged victims cross-examined. In fact, the domestic authorities had not obstructed or in any way prevented such an examination since they had not been confronted with the issue to begin with. 28. In the light of the foregoing, the Constitutional Court considered that the applicant’s right to adversarial proceedings had not been restricted to an unacceptable extent. Its finding might have been different had the judicial authorities prevented the applicant from examining the under-age victims despite his having so requested (the Constitutional Court cited S.N. v. Sweden, no. 34209/96, § 49-50, ECHR 2002V; B. v. Finland, no. 17122/02, § 44, 24 April 2007; and Accardi and Others v. Italy (dec.), no. 30598/02, ECHR 2005II) or if the applicant had not been able to challenge effectively the examination conducted by the experts owing to a lack of sufficient information or some legal impediment. 29. As regards the assessment of the evidence conducted by the judicial authorities, the Constitutional Court emphasised from the outset that its role was not that of a court of third instance and that in cases such as the instant one it would intervene only if it could not be concluded ‒ or could be concluded only arbitrarily ‒ from the evidential material in the case file, which should have been obtained with due respect for the defendant’s fundamental rights, that the defendant was guilty. 30. In this connection, the Constitutional Court stated that the only direct evidence on which the trial courts had based the applicant’s conviction comprised the incriminating statements given by the minors at the investigative stage of the proceedings, the video-recording of which had been viewed in its entirety at the hearing. The admission of those statements as evidence had been lawful and, from a constitutional standpoint, they could be considered sufficient evidence to override the applicant’s right to be presumed innocent. The hearsay evidence provided by parents and experts had served exclusively as corroborating evidence. This complaint was dismissed. 31. The Constitutional Court’s judgment was served on 21 March 2013. 32. Article 24 of the Constitution provides: “1. Every person has the right to the effective protection of the judges and the courts in the exercise of his or her legitimate rights and interests, and in no case may he or she go undefended. 2. Likewise, every person has the right of access to the ordinary judge predetermined by law; to the defence and assistance of a lawyer; to be informed of the charges brought against him or her; to a public trial without undue delays and with full guarantees; to the use of evidence appropriate to his or her defence; to refrain from self-incriminating statements; not to declare himself or herself guilty; and to be presumed innocent. The law shall determine the cases in which, for reasons of family relationship or professional secrecy, it shall not be compulsory to make statements regarding alleged criminal offences.” 33. The relevant provisions of the Code of Criminal Procedure are as follows: “... Adult witnesses shall take an oath or promise to state all they know in reply to the questions put to them, the judge being obliged to inform them in clear and understandable language of their duty to tell the truth and of the possibility of their being held liable for false statements in a criminal case. Minors may give a statement to experts, always in the presence of the public prosecutor. The person exercising parental responsibilities, protection or guardianship over the minor may be present unless he or she is an accused party, or if the judge, as an exceptional measure and through a reasoned decision, decides otherwise. The judge may instruct that the statement be video-recorded.” “... Statements from under-age witnesses shall be delivered in a manner that avoids their being visually confronted with the accused. The use of appropriate technological mechanisms shall be allowed for that purpose.” “... Statements from under-age witnesses shall be delivered in a manner that avoids their being visually confronted with the accused. The use of appropriate technological mechanisms shall be allowed for that purpose.” “The only evidence that shall be produced [at the hearing] is that proposed by the parties; the only witnesses who shall be examined are those included in the lists submitted [by the parties].” “In the event that any evidence cannot be produced during the hearing, on account of circumstances outside the parties’ control, a record of the relevant investigation shall be read out if this is so requested by any of the parties.” 34. The Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, which entered into force in respect of Spain on 1 December 2010, provides in Chapter VII, concerning investigation, prosecution and procedural law: “1. Each Party shall take the necessary legislative or other measures to ensure that investigations and criminal proceedings are carried out in the best interests and respecting the rights of the child. 2. Each Party shall adopt a protective approach towards victims, ensuring that the investigations and criminal proceedings do not aggravate the trauma experienced by the child and that the criminal justice response is followed by assistance, where appropriate ... 4. Each Party shall ensure that the measures applicable under the current chapter are not prejudicial to the rights of the defence and the requirements of a fair and impartial trial, in conformity with Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.” “1. Each Party shall take the necessary legislative or other measures to protect the rights and interests of victims, including their special needs as witnesses, at all stages of investigations and criminal proceedings, in particular by ... g. ensuring that contact between victims and perpetrators within court and law enforcement agency premises is avoided, unless the competent authorities establish otherwise in the best interests of the child or when the investigations or proceedings require such contact.” “1. Each Party shall take the necessary legislative or other measures to ensure that: a. interviews with the child take place without unjustified delay after the facts have been reported to the competent authorities; b. interviews with the child take place, where necessary, in premises designed or adapted for this purpose; c. interviews with the child are carried out by professionals trained for this purpose; d. the same persons, if possible and where appropriate, conduct all interviews with the child; e. the number of interviews is as limited as possible and in so far as strictly necessary for the purpose of criminal proceedings ... 2. Each Party shall take the necessary legislative or other measures to ensure that all interviews with the victim or, where appropriate, those with a child witness, may be videotaped and that these videotaped interviews may be accepted as evidence during the court proceedings, according to the rules provided by its internal law.” “2. Each Party shall take the necessary legislative or other measures to ensure, according to the rules provided by its internal law, that: a. the judge may order the hearing to take place without the presence of the public; b. the victim may be heard in the courtroom without being present, notably through the use of appropriate communication technologies.” 35. The Framework Decision of 15 March 2001 of the Council of the European Union on the standing of victims in criminal proceedings (2001/220/JHA) provided: “2. Each Member State shall ensure that victims who are particularly vulnerable can benefit from specific treatment best suited to their circumstances.” “Each Member State shall safeguard the possibility for victims to be heard during proceedings and to supply evidence. Each Member State shall take appropriate measures to ensure that its authorities question victims only insofar as necessary for the purpose of criminal proceedings.” “4. Each Member State shall ensure that, where there is a need to protect victims - particularly those most vulnerable - from the effects of giving evidence in open court, victims may, by 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.” 36. The Directive of 25 October 2012 of the European Parliament and of the Council (2012/29/EU) establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA, provides: “(66) This Directive respects fundamental rights and observes the principles recognised by the Charter of Fundamental Rights of the European Union. In particular, it seeks to promote the right to dignity, life, physical and mental integrity, liberty and security, respect for private and family life, the right to property, the principle of non-discrimination, the principle of equality between women and men, the rights of the child, the elderly and persons with disabilities, and the right to a fair trial.” “Without prejudice to the rights of the defence and in accordance with rules of judicial discretion, Member States shall ensure that during criminal investigations: ... (b) the number of interviews of victims is kept to a minimum and interviews are carried out only where strictly necessary for the purposes of the criminal investigation; ...” “1. Member States shall ensure that victims receive a timely and individual assessment, in accordance with national procedures, to identify specific protection needs and to determine whether and to what extent they would benefit from special measures in the course of criminal proceedings, as provided for under Articles 23 and 24, due to their particular vulnerability to secondary and repeat victimisation, to intimidation and to retaliation ... 4. For the purposes of this Directive, child victims shall be presumed to have specific protection needs due to their vulnerability to secondary and repeat victimisation, to intimidation and to retaliation. To determine whether and to what extent they would benefit from special measures as provided for under Articles 23 and 24, child victims shall be subject to an individual assessment as provided for in paragraph 1 of this Article.” “1. Without prejudice to the rights of the defence and in accordance with rules of judicial discretion, Member States shall ensure that victims with specific protection needs who benefit from special measures identified as a result of an individual assessment provided for in Article 22(1), may benefit from the measures provided for in paragraphs 2 and 3 of this Article. A special measure envisaged following the individual assessment shall not be made available if operational or practical constraints make this impossible, or where there is a an urgent need to interview the victim and failure to do so could harm the victim or another person or could prejudice the course of the proceedings. 2. The following measures shall be available during criminal investigations to victims with specific protection needs identified in accordance with Article 22(1): (a) interviews with the victim being carried out in premises designed or adapted for that purpose; (b) interviews with the victim being carried out by or through professionals trained for that purpose; (c) all interviews with the victim being conducted by the same persons unless this is contrary to the good administration of justice; (d) all interviews with victims of sexual violence, gender-based violence or violence in close relationships, unless conducted by a prosecutor or a judge, being conducted by a person of the same sex as the victim, if the victim so wishes, provided that the course of the criminal proceedings will not be prejudiced. 3. The following measures shall be available for victims with specific protection needs identified in accordance with Article 22(1) during court proceedings: (a) measures to avoid visual contact between victims and offenders including during the giving of evidence, by appropriate means including the use of communication technology; (b) measures to ensure that the victim may be heard in the courtroom without being present, in particular through the use of appropriate communication technology; (c) measures to avoid unnecessary questioning concerning the victim’s private life not related to the criminal offence; and (d) measures allowing a hearing to take place without the presence of the public.” “1. In addition to the measures provided for in Article 23, Member States shall ensure that where the victim is a child: (a) in criminal investigations, all interviews with the child victim may be audiovisually recorded and such recorded interviews may be used as evidence in criminal proceedings;” 37. In a judgment of 16 June 2005 (Case C-105/03 Pupino [2005] ECRI5285) the Court of Justice of the European Union held: “59. The Framework Decision must thus be interpreted in such a way that fundamental rights, including in particular the right to a fair trial as set out in Article 6 of the Convention and interpreted by the European Court of Human Rights, are respected (...) 61. In the light of all the above considerations, the answer to the question must be that Articles 2, 3 and 8(4) of the Framework Decision must be interpreted as meaning that the national court must be able to authorise young children, who, as in this case, claim to have been victims of maltreatment, to give their testimony in accordance with arrangements allowing those children to be guaranteed an appropriate level of protection, for example outside the trial and before it takes place. The national court is required to take into consideration all the rules of national law and to interpret them, so far as possible, in the light of the wording and purpose of the Framework Decision.”