Thursday, October 28

A sentence that should not have been passed

Alberto Rodríguez is a member of the United We Can Assembly well known to the public. Beyond being very tall – almost two meters – his external appearance caused surprise in those who in our time still value people not for how they really are, but for their way of dressing or for their hairstyle, and they think that in the Congress of the deputies cannot be anyone who is not dressed according to certain traditional customs. In any case, several of his speeches have not gone unnoticed, in particular one of very good tone with a deputy of the Popular Party no less, in which in an exercise of camaraderie and good parliamentary work that should be the norm, he praised him for stentorian manner.

Well, this deputy, before becoming one, on January 25, 2014, attended a demonstration in La Laguna in rejection of the then new education law, which has caused many evils and nonsense in recent years, by the way. Well, unfortunately there were some incidents at this demonstration, unfortunately common, and a policeman claimed to have been beaten by Alberto Rodríguez. He stated that he had received a kick to the knee from the now deputy, which the agent cured in one day. The doctor who recognized him, despite quickly examining the alleged injury, stated in the process that she could not confirm it except by the statements of the policeman. The alleged kick left no external sign.

Beyond that, the complaining police officer declared that he knew Alberto Rodríguez from other mobilizations, which was not strange given that appearance referred to above. But it is striking that another policeman –to be precise the chief inspector– who was in charge of the device to repel the possible violence of the mobilization, at no time saw Alberto Rodríguez. Furthermore, four other officers stated in writing that they had witnessed the attack, but surprisingly none of them testified at trial. In these conditions, the only evidence valued in the process was the exculpatory statement of the accused, who said that he had not been in that part of the mobilization at the time of the alleged kick, as well as the statement of the complaining police officer who literally stated that he “understands that the kick was voluntary “, adding little more information, given that according to the private opinion of the sentence, his statement was surprisingly laconic. There were also some videos of the mobilization that, since they could not be really located in time, could prove little, except that the defendant was in the mobilization – which he himself acknowledged – but not at the time of the alleged attack.

With such a void of evidence and due to a fact that is notoriously slight considering its result – even supposing that it actually occurred -, it is surprising that the entire criminal machinery, which must only be mobilized for really serious events, was not only activated, but also caused by the appointing of the accused to the Supreme Court itself who has had to assume the task. All of this is largely unusual. Looked at coldly, it is even disproportionate.

However, the motivation for the sentence is even more unusual, and I understand that it is erroneous. The Court, in order to assess the credibility of the complaining agent, applies a jurisprudence that years ago that the court itself should have updated in depth, but which it usually uses to assess the so-called “sole victim witness.” Said jurisprudence deals with cases of sexual assault above all, in which the person attacked being the only witness of his assault, the statement must be analyzed with special care, which may even be –almost– the only evidence if the assault left no traces physical. Specifically, persistence in the incrimination, corroboration with other evidence and absence of animosity against the accused is required.

Looking at these three details, the court affirms that the agent has not changed his statement from the beginning, that said statement was corroborated by the fact that the agent immediately went to the doctor and identified Alberto Rodríguez, and that the absence of animosity stems from that the agent himself declared in the process that he knew the accused of other demonstrations and that he had always shown a peaceful behavior.

All of the above is notoriously insufficient for credibility purposes, especially since the source of the corroboration does not come from other evidence, as it should be, but from the agent himself. In addition, the fact of previously knowing the accused rules out –it is to say– the animosity based on the court, once again, on the agent’s own statement in this process, which certainly raises fundamentally doubts that such animosity did not exist at least in some measure. But regardless of all this, which is not a little, in addition, the application of this jurisprudence is erroneous, because it cannot be conceived that the agent-victim was the only witness in anything less than a demonstration … However, neither others were questioned. protesters not even the police officers who claimed to have seen the attack.

But the most interesting thing about the sentence, in my opinion, comes when the court evaluates the defendant’s statement. It is not only that you do not believe him, but it does not motivate why you do not believe him. Instead of this essential explanation, the court repeatedly expresses its discomfort with the fact that the defendant said in the trial that an attempt was being made to criminalize the right to demonstrate and that if it were the conviction, he would appeal it to the Constitutional Court and before the European Court of Human Rights, which, far from being a threat, is nothing more than an objective expression of their rights. But I insist, the court expressly expresses its annoyance at these statements, which is nothing more than an imprudence that can decisively compromise its impartiality.

In view of all the foregoing, it can only be concluded that a conviction has been handed down without sufficient evidence of the charge, which leads to a violation of the right to the presumption of innocence according to the Constitutional Court’s repeated doctrine for four decades. Furthermore, it is obvious that art. 717 of the Criminal Procedure Law, which rules out that police statements have any kind of presumption of veracity, contrary to what is sometimes thought. And in this case it seems that the only evidence of the charge, wrongly valued and to which the court attributes an undue leading role, has been precisely the statement of the policeman. It is not that the Supreme Court has assessed the interrogation according to its personal impressions, exclusive of who had immediacy, that is, of the court that witnessed the test. It is that apart from the incorrectness of that old-fashioned approach that sacralizes the so-called “immediacy” in an epistemically absurd way, the explanation of these impressions is, as I have already explained in the previous paragraph, questionable in the field of impartiality. It is as if the court explains that it does not believe the accused, not because his account is not consistent, but because he has made inappropriate comments about the right to protest and his opportunities for recourse.

Let us trust that one of the courts mentioned by Alberto Rodríguez will annul this sentence, the severity of which is increased by having been pronounced against a representative of popular sovereignty. But let us also hope that one day they will work very actively to end the tradition, which is unfortunately, that some protesters provoke altercations with the police as a way to make the protest more visible. We are in the 21st century and there are other means that are much more efficient and less rudimentary. But in the meantime, let’s try not to make the righteous pay for sinners.



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