Published on 8 April 2024
FIFTH SECTION
Applications nos. 40312/23 and 40388/23
A.J. against Spain
and L.E. against Spain
lodged on 3 November 2023
communicated on 18 March 2024
SUBJECT MATTER OF THE CASES
The applications concern the alleged ineffectiveness and the discontinuation of criminal investigation proceedings for sexual aggression by means of chemical submission in which the applicants claim to be the victims. The police conducted an investigation starting from 19 December 2016, which led to the opening of criminal investigation proceedings on 3 January 2017.
Several incidents occurred during the police investigations: (i) loss of all data from the defendant’s cell phones; (ii) loss of part of the video footage from the surveillance camera located in the bar in which the applicants and the defendants met; (iii) loss of the expert report related to the recovery of the data from the defendants’ phones. These eventually led to the opening, on 14 June 2021, of three separate sets of proceedings with the aim to investigate the authorship and possible criminal liability for, inter alia, forgery of public documents and disloyalty in the custody of public documents.
On 8 October 2021, the judge in charge of the investigation proceedings for the alleged sexual aggression terminated them, considering that, even though the victims’ testimonies were fully credible and the defendants had declared that they had had sexual intercourse with the victims, it was impossible (noting the significant shortcomings during the police investigations) to find any evidence that could prove that the defendants had given the victims a drug or that they had been aware of the victims’ state or lack of consent at the time of the events.
The proceedings for sexual aggression were ultimately discontinued on 9 July 2022 by a decision of the Audiencia Provincial of Navarra. The ensuing amparo appeal was declared inadmissible on 6 July 2023.
Under Articles 3 and 8, the applicants complain that the prosecution of the alleged criminal offences of sexual aggression was ineffective, was adversely affected by loss of evidence imputable to the police and has ultimately affected their personal integrity, dignity and private life in a manner that can be qualified as violence against women. The applicants also stated, invoking Articles 3, 6 and 8 that their right to an investigation conducted within a reasonable time was violated.
QUESTIONS TO THE PARTIES
1. Do the applications concern a positive obligation arising under Article 3 and/or Article 8 of the Convention, to protect the applicants’ physical and moral integrity and/or their private life (M.C. v. Bulgaria, no. 39272/98, ECHR 2003-XII)? If so, has there been a violation of Articles 3 and/or 8 of the Convention on account of the allegedly ineffective investigation and its discontinuation?
2. Was the length of the criminal investigation for sexual aggression at variance with the respondent State’s obligation to provide an effective system of prosecution of the alleged criminal offences committed against the applicants amounting to a violation of Article 3 and/or 8 of the Convention (W. v. Slovenia, no. 24125/06, §§ 65‑71, 23 January 2014)?
3. The parties are requested to submit any factual information and documents concerning the three separate sets of criminal investigation proceedings on the mishandling of evidence material by the police which were opened on 14 June 2021.
4. The Government are requested to inform the Court whether there have been or there are any ongoing internal or administrative proceedings concerning the mishandling of evidence material by the police.