JUDGEMENT misleading: "THE CUCKOO", ACQUITTED OF MURDER AND RAPE BY SEVERE FAILURE OF FISCAL
Very large and widespread outrage in Spain has produced a minor, " The Cuco, "was convicted solely of concealment (three years in detention, much of which is considered as completed, for" El Cuco "was provisionally admitted), but has been acquitted of charges of murder and rape of the young Marta del Castillo, Seville, 17, missing on January 24, 2009. For Marta Castle is one of the most notorious crimes of recent years have contributed to various circumstances: Marta was searched for days hoping to find her alive and there were many expressions of solidarity. On February 14, 2009, Miguel Carcano, Marta former boyfriend confessed to raping and killing, then disposing of the corpse. From the moment of confession, were carried out body searches at different places, but until now has been found. And this case, along with a little time before, has sparked a debate over criminal legal treatment of minor criminal matters, we will not go into here.
For non-English or English readers not familiar with our law, it should be noted that, for "El Cuco" for a minor criminal, has taken a special criminal provided in the call Juvenile , where instruction (phase pre-trial investigation) does not apply to a judge, but the prosecutor (or Attorney General) (MF) and, if it comes to bringing charges, phase trial and sentencing is a matter of a juvenile court judge. It is the sentence of March 24, 2011, of Judge of Juvenile Sevilla, which interests us now. For those involved, older age, is still another ordinary criminal process, currently under trial before the Audiencia Provincial de Sevilla .
In the ruling against "El Cuco" have raised many angry voices and even some blunt editorial comment, that comment later. Well the Juvenile Judge of Seville has given, in my opinion, a good sentence, lawful, as it should be. The big test against "El Cuco" about the murder and rape of Martha Castle was one of the many statements by the ex-boyfriend of Marta, the so Miguel Carcano, made before the examining magistrate of the regular process that follows the adult defendants. Under large and strong case, both the Supreme Court and the Constitutional , if you wanted that incriminating statement "El Cuco" had probative value against "El Cuco" should have been made so that "The Cuckoo" ( through his attorney) would have intervened . And it was the defense of "El Cuco" that opportunity. It is certainly true that "The Cuckoo" was not a party to the regular process against age in which Carcaño said. But I think he's right the Juvenile Judge of Seville when the prosecutor accused juvenile has been limited to present a certified copy ("witness") Carcaño the declaration of the regular process , without attempting even get a statement Carcano in the process of children from "The Cuckoo", so that the child's lawyer could intervene. The Chief Prosecutor of Sevilla he was "disappointed" and has made quite extensive statements on the ruling, it will appeal, but, significantly, has been kept very much hard object to the Magistrate's rebuke to the Juvenile Prosecutor. Neither argument minimal compared to the many pages of Judge of the Office blunder of even a brief mention of disagreement with the arguments of Judge.
Moreover, it also has quite rightly Juvenile Magistrate stating that statements that incriminate a co-author of another co-author always has to be assessed with caution. Criterion is strong case law and doctrine, in Spain and outside Spain. And it turns out Carcaño has NINE different statements about the facts, THREE SIX to the police and to the ordinary judicial process still pending. In those statements, varies substantially Carcaño version of events: in the first three, to the police, and in the first two, before Judge (van FIVE), sole author declares Carcaño murder. In the third statement to the judge, Carcaño change his story and attributed to "El Cuco" rape and murder of Marta del Castillo, events in which he says is threatened by the child with a knife, would not have participated. In a subsequent statement of March 17, 2009, also before the Court is ratified in this version (and this is the statement that the Office of Child takes the process of children as main incriminating piece "The Cuckoo") (van SEVEN statements). But then , on two different occasions , Carcaño again declared, provided to the magistrate sole author of the murder: the role of "El Cuco" would again, as Carcano, that of masking, for having commissioned, with another adult, to dispel the body of poor Martha. Ie seven times, compared to two, had pleaded Carcaño sole author of the rape and murder : Marta killed on hitting head with an ashtray. Twice Carcaño blame-and it would have been "El Cuco" who killed Martha strangled with an extension cord .
Can you blame the judge to affirm the credibility of Carcaño low and did not seem enough to convict? Can he be criticized for, on that line, bring up, explaining, possible motives of revenge and resentment for changing Carcaño against "El Cuco"? And note that these considerations Judge formula for the sake , because the error above and the prosecution to purpose of Carcaño statement of March 17, 2009, was sufficient to deprive of value to this key piece of the prosecution.
In my opinion, the Magistrate Judge, author of a very decent sentence, is receiving some stick do not deserve, because it has been in the trance forced to apply rules that he has not been invented and that, in themselves, are reasonable. By extension, it lashes back against judges and magistrates in general (from "Justice" English). And, as on many other occasions, the prosecutor, get rid , no longer any legal liability -The legal regime against which I cry for years, shielding the MF, in contrast to the Judges and Magistrates, " but also social responsibility , because the behavior of MF can not even be criticized for citizens, since news and especially headlines that "the media" the present , refers only to "bug" or part of the sentence (conviction or acquittal) . "The media" could well refer to the "failure" and his justification , but that, apparently, is asking too much. A newspaper seriously I have for a few days ago published a small editorial I play:
"there was no justice"
"Beyond the strict application of the law and above technical considerations legal justice, by definition, has to do honor to his name. Justice will not compensate in any pain for the murder of a daughter, but at least it should serve as a repair, in part, the suffering of parents. The acquittal of the "Cuckoo" the crimes of murder and rape in the case of young Marta del Castillo may be technically under the law, but if so-which is debatable, the rule is unfair and the sentence that emanates from it, reprehensible. "
come here to argue - quite surprisingly to me, because that is not the main thrust of this paper, firstly, that the rules of evidence, presumption of innocence and basic guarantees are "technical and legal considerations" that should yield to the so-called "material justice" and, secondly , that a ruling "technically under the law" is, what is of acquittal, "reprehensible." I can not disagree more: first, it is unacceptable that legal rules that protect us all presented as " tecnicalities " technicalities (clear resonance term with negative) that lawyers manipulated to deny justice. To do justice worthy of the name can not be dispensed or the "strict application of the law" (it is a strict interpretation which must be done within a criminal proceeding) nor go over the badly called "technical and legal considerations." Finally, if the sentence is "under the law" (to the penal and procedural, in this case), Case can not be "reprehensible", though it is the law that the judge must comply. Judgments based on laws can be reprehensible unfortunate, but then, to be fair to those who dictate (and, apparently, Justice is the concern), we must clarify that it regretted the outcome, but without can fail who has had no choice but to reach it.
not the latter, on the other hand, if the ruling of the Juvenile Judge of Seville. The sentence, as is the acquittal, does not apply an unjust law, but fair: the prosecution must prove seriously, valid evidence, that what is charged. Convictions in criminal proceedings can not be based on the belief-often poorly social-established that the defendants are care items, however heinous crime and has been great the pain of its direct victims, as in the case of Marta del Castillo.
may be wrong my legal-procedural approach to the absence of valid evidence underlying the indictment of "The Cuckoo." There has been an approach made lightly, but I leave a link to read the full sentence, judge for themselves and to contrast my view:
http://www.elpais.com/elpaismedia/ultimahora/media/201103/24/sociedad/20110324elpepusoc_1_Pes_PDF.pdf
In any case, it is clear that not suffer an alienation that leads me to consider perfect defensible, always, what any court decides. Not so and in an upcoming "post" I will do another sentence, unknown and, therefore, not criticized. The case is interesting and the sentence, and advancement, it seems incredibly unreasonable. It is what might be called "the case of falsifying court, he did not commit the crime of forgery."