February 03, 2026
By Alexander Hughes
The scope of the positive obligation on State authorities to conduct an effective investigation into allegations of sexual violence has once again come before the European Court of Human Rights in A.J. and L.E. v. Spain. The case concerns a regrettably familiar fate for many young women. The applicants alleged that they had been drugged and sexually assaulted by chemical submission (informally known as ‘date rape’). They further complained of the subsequent loss and manipulation of crucial evidence in police custody.
This case is not only another reminder, if one was needed, of the pervasiveness of sexual violence against women. More fundamentally, it demonstrates a systemic pattern of police misconduct in cases of sexual violence that remains prevalent in many member States, and a continued attitude of indifference manifested by domestic judges as to the seriousness of the allegations and their subsequent handling by the authorities. Indeed, the applicants in this case drew parallels between their case and that of Iribarren Pinillos v. Spain, in which the Court had found violations of the European Convention on Human Rights on account of what the applicants’ lawyer described as ‘scant judicial interest in investigating a brutal assault on a citizen of Pamplona’.
The two applicants are women of Spanish nationality who met two men at a bar and had a drink with them. Waking up undressed the next morning in one of the men’s flats, they alleged that they remember nothing of the rest of the night but had the sensation that they had engaged in sexual intercourse. They alleged that they must have been drugged and raped.
The National Police Family and Women’s Unit (UFAM) of Spain opened investigations, and the two men were arrested and questioned. The men acknowledged that they had engaged in sexual intercourse with the applicants but maintained that it had been consensual.
Formal criminal proceedings were opened on 3 January 2017. During the course of the investigation, it emerged that one of the two suspects was the brother-in-law of a police officer assigned to the UFAM unit responsible for investigating the case. In addition, three key pieces of potentially crucial evidence disappeared or were compromised while in police custody.
By a decision dated 20 November 2018, the investigating court declined to prosecute the suspects but subsequently opened three separate proceedings to investigate three distinct aspects of alleged misconduct by police officials relating to the disappearance and manipulation of evidence.
The main proceedings were closed on 8 October 2021, with the investigating court restating the reasoning of their prior decision in light of developments since 2018. The court acknowledged that the investigation had been ‘notably affected’ by procedural irregularities and the disappearance of evidence, but determined that these factors did not compensate for the lack of substantive evidence to prove lack of consent to sexual intercourse.
The applicants did not accept the closure of the main investigation precisely because the three separate investigations into police misconduct were still pending. However, in July 2022, an order was issued for dismissal of the case. The Audiencia Provincial dismissed the applicants’ appeal and held their subsequent request for annulment of the proceedings to be inadmissible, as did the Constitutional Court when it considered the amparo appeal that they then lodged.
Relying mainly on the positive obligation under Articles 3 (prohibition of inhuman or degrading treatment) and 8 (right to respect for private and family life) of the Convention, the applicants complained that the numerous deficiencies in the investigation, including the loss and manipulation of evidence by the police and the excessive length of the proceedings, had violated their Convention rights and had left them without effective protection against serious sexual violence.
The Court unanimously found violations of Articles 3 and 8 on account of the authorities’ failure to conduct an effective investigation, in particular due to the systematic loss and manipulation of potentially crucial evidence, the insufficient guarantees of independence of the investigation, and the manifestly inadequate response to those investigative failures (§ 98). The Court awarded each applicant EUR 20,000 in respect of non-pecuniary damage (§ 104).
The Court began its assessment by confirming that it would examine both Articles together on the basis of the Court’s settled case-law that rape and serious sexual assault are not only significant harms that fall within the ambit of Article 3 but also implicate fundamental values and essential aspects of ‘private life’ for the purposes of Article 8 (§ 77). The Court reiterated that both provisions entail positive obligations for States not only to criminalise and effectively prosecute all non-consensual sexual acts but also to enforce the legal provisions through prompt and thorough investigation and prosecution (§ 78).
The more important strand of the Court’s reasoning in this case concerns the second of these positive obligations. In order to be effective, the investigation must be capable of leading to the identification and punishment of those responsible and must be thorough, impartial, and timely. This includes securing medical and forensic evidence, witness testimony, and any available documentary material (§ 81).
On the facts, like the domestic courts, the Court identified three pieces of potentially crucial evidence that disappeared or were compromised while in police custody. The first was a forensic report derived from the data of a mobile phone belonging to one of the men, which had disappeared entirely. The Court observed that digital forensic analysis of the suspects’ mobile telephones would ordinarily constitute an obvious line of inquiry in an alleged chemical-submission case, where mobile communications might be decisive for clarifying the circumstances (§ 90).
Secondly, certain segments of the video surveillance footage from the bar where the applicants had met the suspects went missing or were tampered with. Such video evidence, the Court observed, might have assisted in confirming or refuting the applicants’ account (§ 91).
Thirdly, and most notably, the hard drive used to store the forensic data from the mobile phones of both suspects was found to have been wiped clean and overwritten, resulting in the loss of all its contents. This appeared to have happened after the allegations had been raised and was particularly concerning since a judicial preservation order had been in force. Given that the destroyed evidence could have been decisive in proving or disproving the applicants’ claims, the Court considered that its disappearance represented a particularly serious failure in evidence preservation (§ 92).
In light of the systematic pattern of evidence loss, the Court concluded that the cumulative effect of the evidence preservation failures went beyond isolated errors or minor investigative omissions with which the Court is not normally concerned in its analysis (§ 94).
It is also of particular significance that this all took place in the context of one of the suspects having been identified at the time of the arrest as the brother-in-law of a police officer serving in the UFAM unit responsible for investigating the case. The Court held that the close family relationship between the investigating officer and one of the suspects fell short of the standard of sufficient independence required by the Convention. Such a relationship was liable to compromise both the actual conduct of the investigation and its effectiveness in establishing the facts (§ 96). To make matters worse, investigations into possible police misconduct had been instituted only several years after the items had been lost or destroyed, and those inquiries had been entrusted to the same judicial and police bodies that had supervised the original investigation (§ 97).
The Court’s judgment, in finding violations of the State’s positive obligation under Articles 3 and 8 to conduct an effective investigation, is, of course, to be welcomed. It reflects a well-established recognition in the Court’s jurisprudence that a State’s procedural obligations to have adequate legal frameworks in place and to adequately investigate claims of sexual violence are essential in ensuring that the substantive Convention rights are practical and effective rather than theoretical and illusory. Importantly, the judgment also recognises that systemic investigative deficiencies constitute a form of institutional harm in themselves, resulting in secondary victimisation that can retraumatise survivors, as well as a normalisation of impunity for perpetrators that undermines a victim’s dignity and self-worth.
A central critique by the Court was that the response of the State authorities to the applicants’ serious allegations suffered from a lack of independent oversight. This engagement connects to broader questions about institutional independence in investigative processes, a theme that recurrently figures in international human rights jurisprudence. The judgment implicitly underscores the necessity of structural safeguards to prevent conflicts of interest and to ensure that evidence handling is insulated from undue influence. In turn, this invites national legal systems to rethink how procedural integrity is upheld when investigative actors themselves may be connected to subjects of inquiry.
Another astute observation made by the Court was that, while noting that sexual violence typically occurs in private settings with no witnesses present, cases involving suspected chemical submission often present the particular feature that the suspected administration of substances takes place in public places such as bar or social venues, thereby creating potential opportunities for witness testimony and video evidence that may not be available in other categories of sexual offences (see § 93). The preservation of evidence by State authorities in cases like the present is therefore of increased significance to hold to account the perpetrators of sexual violence.
The Court refrained from saying it in terms, but such were the unexplained failings by the police to retain several vital pieces of evidence that could have substantiated the applicants’ allegations of rape that one might reasonably conclude that their loss and manipulation were deliberate. In particular, no plausible explanation was ever offered by the State for why the hard drive used to store the forensic data from the mobile phones of both suspects had been wiped clean and overwritten. Given the family relationship between an investigating officer and one of the suspects, a relationship identified at the time of the arrest, a motive for obstructing the investigation from the inside could not have been more obvious.
It is in that context that the domestic court decisions are so troubling. The investigating court acknowledged that the investigation had been ‘notably affected’ by procedural irregularities but concluded that this did not compensate for the lack of evidence to substantiate the applicants’ allegations. As mentioned, sexual violence is most often committed in private with no witnesses or other evidence available to prove its occurrence. The applicants could therefore have been in a very rare and relatively fortunate position of having three distinct and significant pieces of evidence to demonstrate their lack of consent. The fact, therefore, that even these women have been denied the opportunity to hold their perpetrators accountable for the irreparable harm and trauma inflicted is deeply unsettling for all those who believe that the criminal law is capable of protecting women from sexual violence.
One might argue that the investigating court’s hands were tied because, without any available evidence, where strong suspicions could not be proved that one of the suspects was influential in making it unavailable, any conviction might have violated the suspects’ right to a fair trial under Article 6 of the Convention. It is therefore even more alarming that the investigating court, and then the appeal courts, further concluded that the unexplained loss of evidentiary material did not undermine the overall sufficiency of the investigation. This was compounded by the conduct of the investigating judge, who had known for months that the forensic report from one of the suspects’ mobile telephones had disappeared from police premises but had concealed this fact from the proceedings.
As such, while the Court’s judgment is to be welcomed, it might be said that the Court was shooting into an open goal. The investigation did not simply fail to protect the applicants’ rights but further contributed towards the harm.
In fact, it has only taken slightly less clear-cut cases for the Court to reach the opposing conclusion. For example, in its recent judgment in B.A. v. Iceland the Court did not criticise the police for only first interviewing the suspect nine months after the applicant had alleged multiple instances of domestic and sexual violence. And while acknowledging that victims of violence often hesitate to file charges until some time has passed, in finding no violation, the Court still implicitly criticised the applicant for not promptly lodging a complaint insofar as this impacted the quantity and quality of the available evidence. On the other hand, in its judgment in M.A. v. Iceland handed down on the same day and involving similar facts, the Court correctly emphasised that delay to file charges does not absolve the authorities of their obligation to conduct an effective investigation. However, that finding had been made in the very unusual context that the consequence in domestic procedural law of the police’s delay had led to the expiry of the relevant limitation period. Moreover, while the Court did find a violation of Article 8 in M.A. v. Iceland, the facts were exceptional. The applicant had promptly sought medical attention after each incident, took photographs of her injuries, and could identify four witnesses able to testify to having seen the injuries inflicted upon her. The Court’s finding of a violation in A.J. and L.E. v. Spain should similarly be understood in the context of its exceptional factual background.
Finally, while the award of monetary damages in this case might have been regarded by the applicants as a meaningful recognition of the violation of their Convention rights, individual remedial responses of this kind fall short of substantive systemic reform. Given that little appears to have changed in the approach of either the Spanish authorities or the judiciary to claims of sexual violence since the Court’s previous judgment in Iribarren Pinillos v. Spain in 2009, it is regrettable that the Court did not take the opportunity to specifically call on Spain to enhance procedural safeguards and improve both police and judicial attitudes towards claims of sexual, domestic and gender-based violence.
While the applicants succeeded in their claim, the Court’s judgment remains in step with its recent jurisprudence that has tightly confined the scope of the State’s positive obligation to conduct an effective investigation into complaints by women who have been subjected to violence. Only in the rare instances where an applicant is able to produce overwhelming evidence to substantiate her allegations of sexual violence, like in M.A.v. Iceland, or where the applicant would have been able to do so had the police investigation not been so inadequate as to border on collusion, like in the present case, will the Court find a violation of the procedural limb under Articles 3 and/or 8.
And even in such cases, the Court remains powerless in holding to account the true villains of the story: the two men who are alleged to have perpetrated the sexual violence.
Strasbourg Observers is an academic blog that discusses recent developments at the European Court of Human Rights. The editorial team of Strasbourg Observers is based at the Human Rights Centre of Ghent University and the Centre for Government and Law of Hasselt University.
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