Jesús Zarzalejos Nieto: Dani Alves and reasonable doubt

The acquittal of Dani Alves would not justify a generic disqualification of the testimony of a victim as a means of proof of sexual assault. Reaching this conclusion after reading the judgment of the Superior Court of Justice of Catalonia would be a reflection of … bar bar and, in addition, an approach error. The declaration of a victim, whatever crime, can justify a conviction, without violating the presumption of innocence. If the probative effectiveness of the testimony of a victim was denied a priori, many crimes would be unpunished in advance, especially those who break sexual freedom. What says the judgment of the TSJ of Catalonia is something else. It is the same as the jurisprudence of the Second Chamber of the Supreme Court on this issue. The victim’s statement, as the only or main proof of the accusation, is admissible to distort the presumption of innocence, although it must overcome three filters: 1st) that of subjective credibility, to rule out spurious motifs, such as revenge, in its testimony against the accused; 2) The objective credibility or likelihood of its testimony, which requires internal coherence in the declaration and is corroborated by peripheral data (external coherence); and 3rd) that of persistence in incrimination, which does not consist in maintaining the same version of the facts literally every time he declares, but not altering it with substantial modifications or incurring vagueness or generalities.

The fulfillment of these requirements does not convert the testimony of the victim into full evidence, that is, suitable for, without the need for other valuations, condemn the accused. With those requirements, and it is not little, the court can incorporate the victim’s testimony into the probative flow of the case to resolve the accusation.

Second relevant issue in Dani Alves’s acquittal. The sentence says: «The only relevant hypothesis that is submitted to trial is the accusatory. Therefore, we do not affirm that the true hypothesis is the one that maintains the defense of the accused ”(page 97). What is discussed in the oral trial of a criminal process is the effectiveness of the evidence of the accusation, because the defendant, however hateful the crime attributed to him, or however obvious they are, apparently, the evidence against him, enters the prosecution room as innocent, by constitutional mandate. This is the accusatory principle on which the criminal prosecution in Spain pivot. Invest the factors of this reasoning and consider that it is the defendant who has to prove his innocence or convince the Court of ineffectiveness of the evidence of the accusation, involves breaking through the base the system of guarantees of the criminal process. Guilt demands proof; Innocence, no.

With both premises -the victim’s statement and the accusatory principle -, the TSJ of Catalonia concludes that the condemnation of Dani Alves was based on an erroneous assessment of the testimony of the complainant. The sentence is based on the conviction that the complaint of the complainant contradicts the images recorded before he access the toilet of the premises where the sexual encounter with the accused occurred. Assessing that initial contradiction between what was said and the seen, the TSJ of Catalonia reaches two conclusions: that the victim’s testimony was not reliable and that the Barcelona hearing was not demanding in the assessment of the evidence on what happened since the complainant voluntarily agreed to enter the toilet with the accused. To condemn a conviction is required beyond any reasonable doubt and a reinforced judicial motivation, following the doctrine of the Constitutional Court and the Supreme Court. Neither or the other attend, according to the TSJ of Catalonia, in the condemnation of Alves.

In full controversy for the unfortunate sentence of the Constitutional Court on a case of false complaint against a father within a lawsuit for the custody of the child, this judgment of the TSJ represents a double opportunity: on the one hand, to release the debate on the evidence in the crimes of sexual aggression of prejudiced slogans against the accused, -so unfair as those who, in pendular movement, affirm that the word of the victim is useless-; and, on the other, to place the presumption of innocence in the backbone of the criminal process.

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