He has issued a sentence for which the decision of the judges not to offer a woman dispensing the obligation to dedicate in a trial for sexist violence. The appellant, who was the ex -partner of the complainant, claimed that her rights were violated because the woman was not allowed to accept said dispensation.
The events date back to 2000, the year in which the appellant was sentenced by the Criminal Court number 1 of Orihuela (Alicante) to a sentence of 10 months and 15 days in prison for, causing injuries. The Alicante Audience rejected the appeal and confirmed the prison sentence imposed by the crime of injuries in the field of gender violence.
Given these sentences, the convicted person went to the Constitutional in amparo. In his lawsuit he requested that the conviction be annulled and acquitted of the crime of. The reason alleged in the appeal was that the criminal judge had not given the victim of the aggression, complainant and accusing particular in the process, the option of not declaring against him; Although article 416.1 of the Criminal Procedure Law recognized this right to those who maintained a relationship with the accused.
The Constitutional estimates in his sentence – approved with two votes against – that the judges acted correctly, when he understood that he did not apply said dispensation because the victim herself and complainant had renounced her. The woman had ratified her complaint before the Court of Instruction and expressly renounced to the right not to testify against her ex -partner. In addition, it became a particular accusation, so it actively participated throughout the judicial process.
The judgment – of which the vice president of the court, Immaculate Montalbán – has been speaker – considers that the victim and complainant acted, at all times, in the legitimate exercise of his fundamental right to obtain effective judicial protection. The resolution affirms that “the exercise of criminal accusation, as a concrete manifestation of the aforementioned fundamental right, prevents the right not to declare as a witness in that same process.” For this reason, the Court rejects the appeal of the aggressor, estimating that none of the procedural guarantees that the Constitution recognizes any accused in a criminal case has been violated.
The magistrates José Mario Macías and Concepción Espejel, voted against the sentence. Both will record their discrepancy in particular votes.
