The Supreme Court has annulled a conviction for rape of a girl under 15 years of age in a town in Madrid, considering that the inadmissibility “almost en bloc” of the evidence requested by the accused violated his right of defense. The High Court orders the trial to be repeated and the proceedings back to the moment prior to the examination of such expert and documentary evidence. Among them are the publications on social networks of the minor the days after the event, as well as a psychological expert report of the alleged victim.
As ‘El newspaper de España’ advanced, both the Madrid Provincial Court and the Madrid Superior Court of Justice found the alleged aggressor guilty and sentenced him to 12 years in prison for anally penetrating the young woman in a house located a few meters from his own, taking advantage of the neighborhood relationship that united him with his father.
The Second Chamber considers that the “almost en bloc” denial of the expert evidence and a good part of the documentary seriously affected the core of the burden of proof and, with it, the right of the accused to an effective defense. “The only effective remedy is to declare the nullity of the appealed judgment,” says the judgment, dated September 9 and to which ABC has had access. Now will be a court “made up of other members” that decides “on the admission of the proposed evidence by the parties, guaranteeing the rights to an effective defense and to a fair process ”.
Social media posting
The inadmissible evidence at the time was the girl’s medical and psychological experts, as well as that relating to the “information reported on social networks by the minor” after the alleged rape. Also “the recording of the space where the accusations occurred, as well as the telephone data on the geolocation of the terminal, contacts and conversations held by the appellant during the day of the events.”
The sentence indicates that Although the personal data that served as the basis for the preparation of the inadmissible expert opinion affect the privacy of the minor, these were disclosed in public access social networks by the interested party herself, “Which significantly reduces the expectation of privacy from third parties that may have accessed said networks.” Even so, it is indicated that “disclosure by the interested party herself does not deprive her of all protection against the use of said data by third parties and that her condition as a minor forces her to guarantee her right to privacy with greater intensity.”
The annulled sentence, dated November 2 of last year, declared it proven that, in January 2019, the defendant (who has a criminal record not computable in this case), called his neighbor by phone asking if he was in the address. The answer was no, and the defendant then stated his intention to show the neighbor’s youngest daughter his new car. The youngest, who was 15 years old at the time, was in her home with her younger siblings. The defendant went to the house, which is in the same block as his home, and asked the minor to accompany him to see the car. When she refused, she was grabbed by the arm by the accused, who, according to the sentence, dragged her across the landing to a house on the same floor, where he raped her.
In addition to the twelve-year sentence, which was confirmed by the TSJM, the accused imposed the prohibition of approaching the minor at a distance of not less than 500 meters and of communication with her by any means, for a period of 16 years. Also, the measure of probation for a period of six years.