Protecting child victims? Just barely. The loopholes of the pre-recorded evidence in child abuse proceedings in Spain

• In Event: Child Protection and Victim Support

Abstract

The general rule in Spanish criminal proceedings establishes that the testimonial evidence must be practiced in the presence of the sentencing judge and the defendant at the oral trial. This requirement, however, is one of the procedural moments most likely to generate serious damage on the well-being of the underage victim. The European Union has devoted part of its efforts to developing the victim's right to protection during their intervention in criminal proceedings in a full range of legal instruments, highlighting Articles 2, 3 and 8 of Framework Decision 2001/220/JHA, and Articles 23 and 24 of Directive 2012/29/EU, which contain protection mechanisms such as the recording of the child's statement made during the investigation for its subsequent introduction in oral proceedings as valid evidence.

The use of the victim's pre-precorded testimonial evidence in Spanish law has always been a controversial issue, but the efforts promoted by the European Union, the change in the jurisprudential criteria of the Constitutional Court and the Supreme Court and the legislator's efforts to introduce new reforms in this matter have ensured that the standards of protection of minors through the use of this type of evidence have been raised. However, it is still far from a perfect and harmonious solution, as its regulation at the national level has a series of loopholes that make it difficult to provide a guaranteed level of protection. The purpose of this proposal is to expose the regulation concerning the practice and admission pre-recorded evidence, as well as to identify the main difficulties that require a response in order to guarantee its effectiveness on a legal and victimization level in processes concerning underage victims.

Author

• Beatriz Martínez, Universitat de Girona