On July 5, 2023, a substitute judge of the Criminal Court No. 1 of Ibiza sentenced a man, identified as Borja, to 7 years and 6 months in prison for crimes of habitual abuse, injury, coercion and threats. In addition to the prison sentence, he was imposed restraining orders, prohibition of communication with the victim and a compensation of 17,739.50 euros. However, the judicial process was riddled with errors that led the Provincial Court of Palma de Mallorca to annul the sentence in October 2024. “Rarely have we seen a proceeding with so many legal infractions,” sentenced Judge Javier Burgos Neira in his brief.
The case in question began in 2019, when proceedings were initiated in Ibiza after an initial inhibition of courts in Vilanova i la Gertrú. During the instruction, the accused was not notified or legally represented, which violated his fundamental rights.
Finally, in December 2022, following a search and arrest warrant, Borja was arrested and assigned his current lawyer, Víctor Ballbé Sanféliz, to defend him.
At trial, the substitute judge rejected the preliminary issues raised by the defense and cited 20 pages of Chilean law in her sentence, assuring that there had been no violation of rights.
In July 2023, a conviction was handed down, which was immediately appealed by the defense attorney, who denounced a long list of procedural irregularities.
On October 15, 2024, the Provincial Court of Palma revoked the sentence after finding “legal infringements and violations of the right of defense”.
In addition, it ordered to backdate the proceedings to January 9, 2020 to ensure a fair trial.
A judgment riddled with errors
In statements to La Voz de Ibiza, the defense lawyer pointed out that “the investigating courtat no time notified my client of the initiation of the proceedings or appointed a public defender from the Balearic Islands, as it was their duty to do”, and that “the only thing that was similar was the incidental appointment of another colleague from a bar association in Catalonia in order to take his statement as an investigated person”. “It is literally impossible for a public defender to take on a case in another autonomous community,” he added.
Defense without defense counsel
“Since the case was initiated at the beginning of 2019, until I was appointed lawyer and I appeared in the case, already with the instruction closed and to make the defense brief (December 2022) there was no defense lawyer in the entire phase of instruction; which is critical to fix the facts for which he will be accused. The consequences of this is that my client was subjected to an absolute inquisitorial procedure; the object of the procedure was forged totally behind his back without any possibility of contradiction or defense”, warned the lawyer. Secondly, Ballbé pointed out that “the prosecution order (the one that declares the investigation concluded and opens the intermediate phase), was a real ‘picture’ with several types of sources and different arrangements that made it almost impossible to read and a totally chaotic and unorganized list of facts “. “From this gibberish of unconnected facts, they formulated the accusatory account they considered convenient,” he added.
Surreal testimonial
Another controversial point was the statement of the complainant by videoconference from her lawyer’s office, a situation that, according to Ballbé, “lacked guarantees and seriousness”. The defendant’s lawyer explained that the complainant and her lawyer “were exchanging chairs depending on whether it was her turn to testify or his turn to intervene”, which allowed the lawyer to “make signs or anything else without the judge, the prosecutor or myself seeing it”.
The exclusion of a key witness
Another irregularity was the exclusion of a key witness proposed by the defense, who had already been admitted in the evidence admission order. “The judge, after asking him the general questions of the law, decided to inadmit him unilaterally saying something like ‘I’m sorry in my soul, you are recused,’” denounced Ballbé.
The lawyer explained that there are no grounds for non-admission of witnesses in Spain, and even if there were, “it is normal for the parties to request the exclusion, the proposing party is heard and then the judge decides on the matter”.
This witness would have served to “corroborate my client’s statement and disprove many of the facts described by the alleged victim”. Despite the lawyer’s protests, the judge maintained her decision, depriving the defense of a piece of evidence they considered crucial.
More irregularities
The sentence handed down by the substitute judge was in line with the maximum sentences requested by the Public Prosecutor’s Office, in addition to including the compensation demanded by the private prosecutor. “The judge saw fit to give us the worst of each of the accusations made,” Ballbé said ironically.
According to the Provincial Court of Palma, “there was no judgment of authorship, criminality or punishability in that sentence, since the basis of ‘assessment of the evidence’ is passed directly to the ruling of the sentence. That is to say, there is not a minimum explanation of the subsumption made or the reasons for imposing the chosen penalties”.
This, the lawyer explained, constitutes “an absolute violation of the right to the presumption of innocence”.
A ‘Chilean’ sentence
In addition, the judge dismissed the preliminary questions raised by the defense based on the Chilean doctrine on procedural nullities, one of the infractions that Ballbé described as “the most grotesque and exotic” he has seen in the Spanish judicial system.
“Nor did the sentence take into account that my client, following my advice, decided to pay the requested civil liability as a precautionary measure (so that if the trial did not go well, the sentence would not imply an effective imprisonment) and despite the fact that this amount was recorded as consigned, it had no relevance at the time of setting the sentence, which is a clear violation of the law,” he warned.
The 20 pages of Chilean laws
When asked by this newspaper, Ballbé confirmed that the substitute magistrate used 20 pages of Chilean law to justify her sentence on Borja. “In the years that I have been practicing I have never seen anything like this; the only applicable jurisprudence in Spain is that which comes from the Constitutional Court, the Supreme Court, the so-called “minor jurisprudence” coming from the Courts and the international (European Court of Human Rights or the Court of Justice of the European Union),” he asserted.
A copy and paste from a book
“Perhaps he did not realize at the time of copying and pasting, but considering that he was sentencing someone to more than 7 years in prison, what less than carefully select the jurisprudence, analyze it and then supervise the sentence. It is equally surprising that it was said that the investigation had been followed with all the guarantees when it could be objectively and unequivocally stated that during more than 2 years of investigation there was no defense attorney nor logically was he notified of anything; the judicial file offered no doubt”, he alleged.
The judicial office of court number 1, co-participant
“The judge was a substitute, not by opposition or elected through the fourth shift. While it is true that the most exotic infraction is imputable to her, she is not the only one who has failed in her duties; the judicial office of the examining court also acted with little diligence, probably due to lack of resources, a common problem in many courts. Let everyone draw their own conclusions,” he added. Ballbé has no record of any criminal or disciplinary proceedings having been opened against those responsible for these irregularities, “whether by action or omission-desidia”. Finally, regarding the Provincial Court’s decision to take the proceedings back to 2020, Ballbé said: “I think it is an ill-advised decision, which has also been challenged. The sentence of instance clearly violated the presumption of innocence and what this entails is that the appeal, instead of going back to 2020, should have agreed the acquittal just because of this fact. Those of us who practice law have it clear, a violation of the presumption of innocence in a sentence always has this effect”.
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