The National Court denies compensation to an innocent who spent 15 years in jail because he considers that it is not an « obvious judicial error » | Spain

Five judges of the National Court have considered that condemning a man with the semen of another about the folios of the summary is not an « obvious judicial error. » Based precisely on an analysis of the semen recovered in the victim’s panties, the Supreme Court acquitted in 2023 the Moroccan bricklayer Ahmed Tommouhi, which had spent 15 years in jail despite the fact that the scientific analysis exculpated him. However, the Contentious-Administrative Chamber of the National Court now considers that « it is not possible to affirm the existence of a rare or obvious judicial error » and, consequently, denies the compensation that the innocent claimed. The sentence, communicated on Monday, can be appealed before the Supreme Court and that is the intention of Tommouhi’s lawyer: « He has not surrendered in 30 years, I’m not going to give up now, » he said on the phone.

The original conviction was issued by the current Minister of Defense, Margarita Robles, when she was a magistrate at the Provincial Court of Barcelona in 1992. And was based on a single charge test, the signaling in Rueda by the victims. The supreme revoked her in June 2023 after a journalistic investigation collected in the book Poetic justice (Peninsula) and In several articles in this newspaper He would reveal that the Court chaired by Robles had not taken into account the semen analysis that was exculpated. One of the victims, in addition, said in an interview and wanted to support with his testimony the appeal presented by lawyer Celia Carbonell on behalf of Tommouhi. « If it’s not him, why do you keep blaming it, » The victim said.

In its 2023 rulingthe Supreme Court recalled that the review involved the innocence of the convicted person « with noticeable mistake or error », but now the National Court disregards that review and tries to rescue the arguments of the condemnation of Robles. As the National Hearing recognizes, the conviction « omitted the mention of the remains of semen to which that expert evidence refers », but against what the Criminal Chamber of the Supreme, the Contentious-Administrative of the National Court of the National Court of the National Court rescues that the « sentence (conviction) comes to doubt that the clothes in which such remains were found outside the victim » Judge of Instruction, not even the prosecutor when he requested the analysis in 1992, had questioned in his day.

The Supreme expressly pointed out that the « omission » about the semen analysis must have been « corrected » by citing the experts. « The review judgment issued by the Supreme Court in this case is already a declaration of judicial error, » says Tomás Vicente Ballesteros, a professor of procedural law at the University of Castilla-La Mancha and the greatest Spanish expert in the appeal for review. « Therefore, the amount of compensation will have to be discussed, but never if there is error or not, » adds the author of The criminal review process (Bosch).

‘In dubio against reo’

The alleged doubts of that court in Barcelona served to condemn the inmate. « Leaving aside a evidence of innocence, existing in the case, is equivalent to condemning without evidence, » says the perfect emeritus Andrés Ibáñez, who was a judge of the Supreme for 20 years, until his retirement in 2017. « And therefore, what is deduced from the review of the Supreme is that the audience of Barcelona condemned without evidence, » he adds.

« Is the error that leads a man to spend 15 years in jail is not a Crassus? » Asks Andrés Ibáñez. « Why not? The National Court Judgment does not reason it at all, » he adds. And it emphasizes: « What impresses me is the lack of sensitivity, which dispatch it like this, as a matter of mere procedure, » says Andrés Ibáñez, author of an extensive work on the constitutional obligation to motivate sentences and, very particularly, the convictions.

An active magistrate who prefers not to give his name underlines, together with that lack of sensitivity, the lack of rationality. « They have made an absurd construction of the judicial error that prevents the repair of the injury of a fundamental right such as that of personal freedom, » summarizes the only paragraph of the sentence, on page 14, which specifically refers to the issue of the demand for compensation. The sentence has 15 pages. « It is unacceptable to assume naturally that this man has been years of his life in jail and do not compensate him, » summarizes a professor of administrative law after reading the sentence.

The sentence communicated on Monday contains, even formally, surprising lapse. It is not numbered and contains paragraphs (the fourth on page 11) where it is evident, and Craso, that they were going to make a short and paste, but they have forgotten to paste the copied paragraph. From the sentence, which imposes on the innocent « the coasts of the process », magistrate Francisco Díaz Fraile has been speaker, and another four have unanimously endorsed it: the judges Isabel García García-Blanco, Lucía Acín Aguado, Ana María Sangüesa, and the president of the section, José Félix Méndez Canseco. The state lawyer, Belén del Pozo Sierra, had requested the dismissal of the lawsuit.

Ahmed Tommouhi, who has not seen his wife again since he emigrated to Catalonia in 1991, lives with his little daughter in a town in the province of Barcelona, ​​Sant Pere de Riudebitlles. After his arrest in 1991, he was convicted with another Moroccan who he did not know, Abderrazak Mounib, for several violations they did not commit. In 1997, thanks to an investigation of a civil guard, Reyes Benítez, and an DNA analysis, the Supreme already recognized the innocence of both Moroccans in one of the cases. But they continued in jail, Because the letter of the law And the spirit of the judges who interpreted it then, prevented the other cases from reviewing. Mounib died three years after a heart attack in a Can Brians cell. Tommouhi was released in 2006, after 15 years imprisoned.

In June 2023, the Supreme Criminal Chamber revoked a second unfair sentence against Tommouhi, the injustice about which the National Court has ruled that it does not deserve to be compensated. Once the resource is presented, the Supreme will have to be again, in this case its third room, who resolves it. The same room that denied compensation to Dolores Vázquez, who was 17 months in prison for the Wanninkhof case. When that case reached the Supreme Court in 2015, the then magistrate of that third room, Margarita Robles, issued a particular vote … in favor of being compensated.