The Supreme Court has imposed a drastic reduction in the sentence of a man hunted in 2012 at the Beni-Enzar border crossing in Melilla with two migrants on board: from more than six years in prison to ten months. One reason is that they apply a less serious version of the crime against foreign citizens and another is the tremendous delays in the judicial process. The sentence, which calls for “perfecting the system”, reflects that the defendant spent two years in search and capture while he was, in fact, a prisoner in the Melilla jail less than three kilometers from the court.
Judicial delays, aggravated by the pandemic, monopolize complaints about Justice in the Ombudsman
The sentence to which elDiario.es has had access reveals that the accused was arrested in April 2012 when he was crossing the Melilla border crossing of Beni-Enzar with a Renault Kangoo with two sub-Saharan migrants on board “who intended to be illegally introduced into Spanish territory”. The Civil Guard agents rewound the security cameras and detected another suspicious passage of the same vehicle five days earlier by Farhana with two migrants hidden in a double bottom. The same man was also at the wheel.
It was not the first time that this driver had been arrested for promoting clandestine immigration across the Melilla border. The Supreme Court reflects that he had already been convicted in 2010, two years earlier, “for the same crime” against the rights of foreign citizens. This time, however, he tried not to comply with justice and had to be searched and arrested in April 2016. He was that way until December 2019, when a sentence had even been handed down. The problem is that the court did not know that a good part of that time he was imprisoned in the Melilla Prison, a few kilometers away.
The trial was held at the end of 2019 at the Provincial Court and he was sentenced to six and a half years in prison for a crime against the rights of foreign citizens, aggravated both by his recidivism and by endangering the lives of the migrants who were going hidden on board. Now it is the Supreme Court that drastically lowers his sentence to ten months in jail, understanding that there is no evidence that he endangered the lives of those two people by going on a double fund and taking into account the delays that have occurred. suffered the process.
The magistrates of the criminal chamber, with Miguel Colmenero as rapporteur, apply a simple mitigation of undue delay and criticize that the accused spent two years in jail while the court thought he was still on the run. The judgment states that “it can be concluded that the system must be perfected to avoid situations such as the one described in this case (…) the appellant was at the disposal of the Spanish authorities when he was deprived of liberty in a penitentiary center, which It was even located in the city of Melilla “.
This lack of coordination between two administrations located in the same city, says the Supreme Court, is not the fault of the Provincial Court but “it is not attributable to the appellant either” so his sentence must be lowered. Most of the reduction, in any case, comes from the change of crime in his sentence: he is sentenced by the aggravated modality to another softer version of the type when the court understands that there is no evidence that the lives of both migrants were in danger by going on a double bottom.
On this, says the Supreme, it is only known that they were in a double bottom. Although this data, says the sentence, “authorizes the suspicion, without further factual clarification it does not allow to affirm that the creation of the typical danger is necessarily deduced from it.” There is no evidence on the characteristics of the double bottom line, nor is there any further evidence on this matter that prevents the application of the aggravated version of the crime.
The existence of danger, in this case according to the Supreme Court, “is not endorsed in the sentence by sufficient evidence of charge, which leads to the partial estimation of the motive, determining the application of the basic rate.” The application of the aggravating circumstance of recidivism is also maintained for his conviction for similar events in June 2010.
Cases that celebrate the “silver anniversary”
This is not the first criticism launched by the criminal chamber of the Supreme Court in cases of clamorous or unjustified undue delay. Last April, the same criminal chamber with Antonio del Moral as speaker even dropped that it would support a pardon against a convicted person of a tax offense, taking into account that the investigation proceedings started against him in 1996 and that the case was sentenced firm a quarter of a century later.
The Supreme Court launched a clear reproach: the investigation began “more than 25 years ago, it has celebrated its silver anniversary while the appeal is being processed.” It was the case of Marcial Gómez Sequeira, the majority shareholder of Sanitas until the end of the eighties, convicted of various tax crimes. In that case, the Supreme Court lowered the economic sanctions and replaced the sentences of higher arrest with fines.
In that case, the magistrate was Antonio del Moral. The same that in another sentence not only regretted the judicial delays in a criminal process but also opened the door for them to be taken into account in a possible pardon. The judges confirmed a sentence of more than five years in prison of a former director of the Castellón Delegation of the Valencian Shooting Federation for accumulating and selling ammunition irregularly, but they made self-criticism regarding the seven years that the case, relatively simple , had been slow to be sentenced.
In that case, there were “some unjustified significant stoppages that have lengthened even more a procedure whose complexity was very relative” without there being a “balance between the infractions appreciated and the time invested” in investigating and prosecuting. All this, admitted Del Moral, could “acquire some significance when it comes to decisions to be made in the execution phase, especially in a foreseeable incident before a request for pardon.”