The Provincial Court of Palma de Mallorca has annulled the sentence issued by the Criminal Court No. 1 of Ibiza in a case of gender violenceafter identifying serious procedural irregularities, including the absence of legal assistance for the defendant in a critical part of the proceedings and the use of 20 pages of Chilean legal arguments to justify the decision. The court concluded that these actions violated the fundamental rights of the defendant, who was initially sentenced to prison for crimes of habitual abuse, injuries, coercion and threats.
The court noted in its judgment 00466/2024 from October 15, 2024 that the trial judge “dismissed at the beginning of the hearing the preliminary question (in which the defendant’s defense requested the nullity of the entire investigation, except for the initial statement) based on the following argument: ‘the instruction is made with all the legal guarantees’.“and that “subsequently, in the judgment, in the first ground, the judge after transcribing 20 pages from a publication on nullity in a foreign country, we believe that ChileThe court concludes that no right has been violated to the defendant because he had counsel throughout the proceedings until 22/12/2022 appointed new counsel address”. “Rarely have we seen in a procedure so many legal violations and violations of the right of defense and effective judicial protection”, warned the court.
Specifically, the Criminal Court No. 1 of Ibiza sentenced the defendant, surnamed Borja, to sentences totaling 7 years and 6 months in prison for four crimes: habitual mistreatment, injuries, occasional mistreatment and coercion. In addition to the prison sentences, he was ordered to stay away from and forbid communication with the victim, named Milagros, for 4 years, as well as the deprivation of possession and carrying of weapons. He was also sentenced to compensate the victim with 17,739.50 euros for injuries and after-effects, a sum that had already been deposited by the defendant in court.
Serious flaws in the instruction
The case, which began in 2019, presented multiple irregularities from the pre-trial phase. The defendant did not have access to a lawyer during the preliminary proceedings or in part of the intermediate phase, which prevented him from being able to actively participate in the process or appeal key resolutions. The Court declared: “An essential rule of the procedure has been disregarded, such as being a party under investigation assisted by a lawyer, causing him serious material defencelessness”. The court also detected other deficiencies, such as the recusal of a key witness by the judge, a figure that, according to the Court, is not contemplated in the Criminal Procedure Law: “The judge left without effect the testimony of a witness proposed by the defense, when the recusal is only applicable to experts, not to witnesses”, stated the ruling.
Retroactive action to guarantee rights
The Audiencia determined that the proceedings should be backdated to January 9, 2020, when the defendant was formally incorporated into the case after testifying as an investigated person. This implies that the instruction should be restarted in order to guarantee the defendant’s rights, including his active participation and the possibility of proposing evidence. “The only way to safeguard all the rights at stake is to retrograde the proceedings to the time when the violations were committed,” the ruling concludes.
