In the judgment in which it acquits Daniel Alves, the full of the Appeals Section of the Catalonia Superior Court of Justice claims not to share the “conviction of the lower court, expressed in its decision, which contains a series of gaps, inaccuracies, inconsistencies and contradictions regarding the facts, legal assessment and its consequences.”
At the same time, it makes it clear that the only relevant hypothesis submitted to trial is the accusation and that the fact that it does not consider it reasonable does not imply “that the true hypothesis is that sustained by the defense of the accused.”
Former Brazilian national team player and club star such as Barcelona, PSG and Juventus, Alves, 41, was convicted of sexual assault annulled in a decision announced on Friday (28). The tone of the judgment of the Judges María to the Vivas, Rapporteur, Roser Bach, María Jesús Manzano and Manuel Álvarez is emphatic at various times, including when the need for individual consent in sex.
However, it notes that the accusation against Alves does not reach “the level required to overcome the presumption of innocence.” The decision may still be appealed to the Supreme Court of Spain, but the former athlete, who was serving a sentence in provisional freedom in Spain, had refunded all his rights, including traveling to Brazil.
Read below some excerpts from the decision of the second instance court.
“The jump of argument made by the judge of first instance in this specific case, situating the subjective belief of the complainant’s statement, limiting it only to unaccounted vaginal penetration, given that it proved to be an unreliable witness, since many of its other statements were not verified, avoids what should have been methodologically investigated… the contrast of this statement with the other evidence.”
“… It cannot be concluded that the standards required for the presumption of innocence, according to the 2016/343 Directive (EU) of the European Parliament and the Council of Europe, of March 9, 2016, have been exceeded.”
“Constitutional doctrine requires a ‘higher pattern of reasoning’ in convictions.
“In its analysis, the sentence of first instance uses the term credibility as a synonym for reliability, which is not the case. Credibility corresponds to a subjective belief, which cannot be contrasted, associated with the person who makes the statement; reliability, on the other hand, affects the statement itself.”
“What must be evaluated in relation to the witness itself to determine its reliability is its truth, that is, the correspondence between what the testimony contains and what actually occurred, and this is only possible if there are objective elements that allow such determination. Thus, the individual assessment of testimony as a means of proof is allowed, which, then, for greater reliability, needs the corroboration produced by the joint assessment of the proof.”
“The Court of First Instance chose to accept a subjective belief of what happened inside the bathroom, limited only to the fact that vaginal penetration was not consented, as the complainant claims. Justifying the version, vaginal penetration, with the argument that consent to sexual intercourse can be modified at any time and inviting possible reasons why the complainant may be missing the truth in the discrepancy Report, for reasons of necessity. “
The decision of the first instance “does not explain why an account that cannot be verified with peripheral evidence, but that originates from a witness who, as we have already explained, proved to be not reliable in the part of the report that can be contrast, can be accepted to support a condemnation. It is for this reason that the generic invocation that one can change does not convert or transform the unclean of reliable, because it affects the truth and says that respect for how the proven fact is rebuilt. “
“The conclusion that can be drawn, in addition to the expository plot of the sentence of first instance, that distorts language to the point that sometimes it seems to prove the felation and others not, is only proven to vaginal penetration, which is considered not consented, based on the report of the complainant, separating it from the other facts and detaching it from the knee injury. Comparison of the defense tests, biological and dactiloscopic evidence. “
The annulled sentence “has very relevant assessment deficits,… it did not take extreme precautions to confront the content of the test.”
“… What is explained by the complainant differs significantly from what happened according to the examination of the recorded episode; the examination of what is not recorded, we insist, has to be particularly strict and strict according to the requirements of the presumption of innocence, in order to consider the accusatory hypothesis as believable.”
“… the discrepancy between the complainant’s report and what actually happened seriously compromises the reliability of his account.”
“The decision of the lower court shows very significant disabilities in its assessment and that did not take the greatest precautions to compare the content of the evidence. The complainant’s report, which should have been exposed to a more thorough examination, was not contrast with the typing proof or biological proof, which support the thesis sustained by the defense, proof of neutral and scientific contrast, because, as we said in the beginning, what is declared in the sentence could be could be Reviewed and verified in the second instance… “
“… express probative shortcomings lead to the conclusion that the level required to overcome the presumption of innocence,… leading to the revocation of the decision of the lower court and the issuance of an acquittal decision, leaving the precautionary measures adopted.”
