PARTLY DISSENTING OPINION OF JUDGE LÓPEZ GUERRA

While agreeing with the Chamber ’ s finding of a violation with respect to Convention Article 5, I must express my dissent concerning its finding of a violation of Article 6. In my opinion, the Romanian Courts cannot be censured for their conduct in the case, given the characteristics of the crime and the personal circumstances of the victim. The applicant was one of six co-defendants in a trial for the gang rape of a minor, and the nature of the offence is certainly relevant in this case. It is commonly accepted, and the Chamber admits (paragraph 64), that public hearings have a deep emotional impact on the victims of sexual assault, resulting in a double victimisation, first as a result of the crime itself and afterwards by forcing the victim to re-live the aggression at the trial in the presence of her attacker. Moreover, this consideration is compounded in the present case by the fact that the gang-rape victim was a minor.

Given the existence of abundant evidence taken at trial (the testimony of no fewer than six co-defendants and two witnesses), there is no ground for maintaining that the Romanian courts ’ decisions were based solely on the rape victim ’ s pre-trial statements. And in view of the circumstances of the crime, it is totally understandable that the Romanian courts did not consider it necessary to force the victim to publicly confront her attacker at trial (as the applicant requested), in view of the more than sufficient testimony of witnesses and other co-defendants. Therefore, there was no need for “countervailing measures”, in the absence of a direct confrontation between the applicant and the rape victim at trial. The Romanian courts had ample opportunity to hear the direct testimony of co-defendants and witnesses and to evaluate them and assess their credibility, taking into account contradictions among defendants and comparing their testimony to statements given during the pre-trial stage of the proceedings. Under such conditions the task of assessing evidence and finding the applicant guilty or not guilty falls exclusively to the national courts, and this Court certainly cannot substitute its own assessment for theirs. In view of the above, I do not consider that the Romanian courts breached in any way the requirements of Article 6 §§ 1 and 3 (d) when rendering the judgments which resulted in the applicant ’ s conviction.