European Court of Human Rights

Information Note on the Court’s case-law No. 160

February 2013

Gani v. Spain - 61800/08

Judgment 19.2.2013 [Section III]

Article 6

Article 6-3-d

Examination of witnesses

Admission in evidence of statement by sole prosecution witness who could not be cross-examined because of post-traumatic stress disorder: no violation

 

Facts - Following reports to the police by N., his former partner and the mother of his son, the applicant was arrested and charged with bodily harm, abduction and rape. N. testified at a hearing before the investigating judge which was not attended by the applicant’s counsel, who gave no reasons for his absence. N.’s statement was written up and added to the case file. Subsequently, at the trial N. started to answer the questions put by the public prosecutor when her evidence had to be interrupted, as she was said to be suffering from post-traumatic stress symptoms that were hindering her from testifying. The symptoms were medically confirmed after the hearing. As a consequence, N. 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 by N. As an alternative to having N. questioned by the parties, the court ordered that the statements which had been taken from her at the investigation stage should be read out. The applicant gave his alternative account of the facts, but was convicted and given a custodial sentence.

Law - Article 6 § 1 in conjunction with Article 6 § 3 (d): The investigating judge had held an interview with N. in which the applicant’s counsel could have put questions to her. The applicant had thus been given an opportunity to have her examined which his counsel had unjustifiably missed.

Regarding the possibility for the applicant to have examined N. at the trial, the trial court had stayed the hearing in the light of her incapacity to describe what had happened and, once it had been medically ascertained that she was suffering post-traumatic stress symptoms, had ordered that she be provided psychological support with a view to having her fully cross-examined at a public hearing. Only after countless unsuccessful efforts, including medical support, had been made to enable N. to continue with her statement, had the court decided that her pre-trial statements would be read out as an alternative to direct cross-examination by the parties. In so doing, it took into account the fact that N. would not be available for cross-examination within a reasonable time and that the applicant was in prison on remand. In the light of these circumstances, the trial court could not be accused of a lack of diligence in its efforts to provide the applicant with an opportunity to examine the witness. Nor had it unduly exempted N. from cross-examination.

As to whether the use of N.’s pre-trial statements by the domestic courts had been accompanied by sufficient counterbalancing factors, her cross-examination had proved impracticable owing to post-traumatic stress symptoms that had been medically confirmed. The applicant had been given the opportunity to put questions to her during the investigative stage of the proceedings but his counsel had failed to attend the hearing. In those circumstances, the interests of justice had obviously been in favour of admitting N.’s statements in evidence. Her statements had been read out before the trial court and the applicant had been allowed to challenge their truthfulness by giving his own account of the facts, which he had duly done. The domestic courts had 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 had 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 domestic courts had also taken into account the statement given by N. at the hearing which, although incomplete, had served to corroborate her pre-trial statements. The reliability of N.’s statements had further been supported by indirect evidence and by the medical opinions and reports confirming that her bodily injuries and psychological condition were consistent with her account of the facts. There had therefore been sufficient counterbalancing factors to conclude that the admission in evidence of N.’s statements had not resulted in a breach of Article 6 § 1 read in conjunction with Article 6 § 3 (d) of the Convention.

Conclusion: no violation (unanimously).

 

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