Judgment (Merits and Just Satisfaction) of Court (Third Section), February 19, 2013 (case CASE OF GANI v. SPAIN)

Judge:GILABERT BOYERT T.
Defense:Spain
Resolution Date:February 19, 2013
Issuing Organization:Court (Third Section)
SUMMARY

Remainder inadmissible No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings Article 6-1 - Fair hearing) No violation of Article 6 - Right to a fair trial (Article 6-3-d - Examination of witnesses)

 
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THIRD SECTION CASE OF GANI v. SPAIN (Application no. 61800/08) JUDGMENT STRASBOURG 19 February 2013

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

GANI v. SPAIN JUDGMENT 1

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 1. 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.

  1. 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.

  2. 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.

  3. 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).

  4. 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.

    2 GANI v. SPAIN JUDGMENT THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. 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).

  5. 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.

  6. 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.

  7. 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.

  8. On 16 September 2004 the applicant dismissed his counsel and personally appointed another one, who took over his defence.

  9. 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 GANI v. SPAIN JUDGMENT 3 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’.” 12. 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.

    4 GANI v. SPAIN JUDGMENT 13. 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...

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