PUSL.- In his decision, Judge Santiago Pedraz, instructor of the Spanish National Court, has rejected today, 1st June 2021, all precautionary measures requested against H.E. President Brahim Gali, including the entry into provisional prison and the withdrawal of his passport.
Presdient Gali, who is currently in Spain in medical treatment, has willingly given his testimony through videoconference from his hospital room and denied the crimes attributed to him, according to legal sources.
The two complaints were presented by blogger Fadel Breica, a Spanish national, who accuses him of torture and illegal detention in the Tindouf camps in 2019; and another from the Saharawi Association for the Defense of Human Rights (Asadedh), which claims that he has committed crimes of genocide and against humanity against Sahrawi dissidents and prisoners of war in recent decades.
Manuel Ollé , defense lawyer of Mr. Gali, was clear in his statement after the hearing
“the facts that are the object of the accusation have been shown to be false”
According to news agency EFE “Morocco has intensified the campaign against the Polisario and has targeted its leader, with the aim of “criminalizing” him and isolating the movement internationally, according to diplomatic sources.”
The decision of Judge Santiago Pedraz, is also clear “Norisk of flight can be appreciated. There is no evidence whatsoever to assess that the person under investigation can or wants to evade the action of justice, especially in view of the fact that as soon as he has had knowledge of the facts under investigation, he has appeared in the case and has agreed to the practice of his statement , even in view of the state of health in which he is, which would have allowed his defense to request postponement of the statement.”
According to the Judge: “The prosecution’s report has not provided even circumstantial elements – the statements of the witnesses in the case do not have corroborative evidence and from them does not follow a participation in the facts of the investigated person – that support the existence of motives enough to believe him responsible for any crime “. “Obviously, it is not enough to agree on personal precautionary measures to indicate that Gali entered Spain illegally,” he emphasizes.
Non Oficial translation
CENTRAL INSTRUCTION COURT FIVE
D. PRELIMINARY 1/2008
In Madrid on June 1, 2021 Given, and
SOLE.- In these proceedings it was agreed to receive a statement from the investigated Mr. Brahin Ghali and made the same by the representation of SAADANI . and others, it was requested that the withdrawal of passport and prohibition of leaving the peninsular national territory be decreed and, alternatively, the placement of a location bracelet and by the representation of ASADEHD the provisional imprisonment of the same or alternatively as requested by the previous one, to which the Public Prosecutor and the defense of the aforementioned were opposed.
FIRST.- The Constitutional Court has indicated in its Sentence no. 60/2001 of February 26 the provisional prison has to be conceived “both in its adoption and in its maintenance, as a strictly necessary measure, of subsidiary, provisional and proportionate application for the purposes that, constitutionally, justify and define it.” It is “a measure justified in essence by the need to ensure the process and that justifying basis draws the line of demarcation with other types of deprivation of liberty and conditions, in turn, its legal regime.”
For this reason, in addition to its legality, the constitutional legitimacy of pre-trial detention requires that its configuration and its application have as a presupposition the existence of rational indications of the commission of an alleged criminal activity with a specific penal logical provision (“as evidenced in the case the existence of one or more facts that present the characteristics of a crime punishable by a penalty whose maximum is equal to or greater than two years in prison, or with a custodial sentence of lesser duration if the accused has a criminal record that is not canceled or can be canceled, derived from conviction for intentional crime “) and its attribution to a specific person (” that sufficient reasons appear in the case to believe the person against whom the arrest warrant is to be issued criminally responsible for the crime “); as an objective, the achievement of constitutionally legitimate aims and congruent with the nature of the measure (state duty to effectively prosecute the crime – avoiding the disappearance of the sources of evidence, preventing the flight or escape of the alleged perpetrator, making harmless any activity that tends to
obstructing the actions of Justice, preventing the accused from acting against the victim’s legal rights, preventing the risk of criminal repetition-, on the one hand; and the state duty to ensure the sphere of freedom of the citizen, on the other); and, as an object, the weighting of the specific circumstances that, in accordance with the legal budget and the constitutionally legitimate purpose, allow the adoption of the measure.
It must also be taken into account that the requirements demanded at the time of adoption of the measure are not necessarily the same as those that must be required later to order its maintenance, so it must be taken into account that the passage of time, regardless by promoting the appearance of unforeseen circumstances, the risk of flight decreases.
The arts. 502 and 504 LECrim establish, for their part, that:
– Provisional detention will only be adopted when it is objectively necessary and when there are no other less burdensome measures for the right to liberty through which the same ends as with provisional detention can be achieved.
-The judge or court will take into account to adopt the provisional detention the repercussion that this measure may have on the accused, considering his circumstances and those of the fact that is the object of the proceedings, as well as the entity of the penalty that could be imposed.
– The provisional detention will last the time essential to achieve any of the purposes set forth in the previous article and as long as the reasons that justified the adoption subsist.
These purposes are specified in art. 503.3 LECrim:
a) Ensure the presence of the accused in the process when a flight risk can be rationally inferred.
To assess the existence of this danger, the nature of the event, the seriousness of the penalty that could be imposed on the accused, the family, employment and economic situation of the accused, as well as the imminence of the oral trial will be addressed jointly. , in particular in those cases in which it is necessary to initiate the procedure for its rapid prosecution. Thus, “the initial and fundamental objective data of the severity of the sentence cannot operate as the only criterion – of objective and purely mechanical application – to be taken into account when weighing the risk of flight, but must be related to other data Relating to both the personal characteristics of the accused – such as family, professional and social roots, connections in other countries, the economic means available to them, etc., as well as those that concur in the case prosecuted (SSTEDH of June 27, 1968, Neumeister case; of November 10, 1969, Matznetter case; of November 10, 1969, Stögmüller case; of June 26, 1991, Letellier case; of August 27, 1992, case Tomasi; of January 26, 1993, case W. v. Switzerland) “(STC July 26, 1995).
For this reason, the provisional imprisonment of the accused shall be agreed upon when, in view of the antecedents resulting from the proceedings, at least two requisitions have been issued for his appeal and sought by any judicial body in the two previous years. In these cases, the limit of the penalty established by art. 503.1.1º LECrim.
b) Avoid the concealment, alteration or destruction of the sources of evidence relevant to the prosecution in cases where there is a well-founded and concrete danger.
Provisional detention for this cause shall not proceed when said danger is intended to be inferred solely from the exercise of the right of defense or from the lack of collaboration of the accused during the investigation.
To assess the existence of this danger, the defendant’s ability to access the sources of evidence on his own or through third parties or to influence other defendants, witnesses or experts, or who may be, will be taken into account.
c) Prevent the accused from acting against the victim’s legal rights, especially when this is one of the persons referred to in article 173.2 CP. In these cases, the limit established by art. 503.1.1º LECrim.
d) Provisional imprisonment may also be agreed upon, meeting the requirements established in article 503.1.1 and 2, to avoid the risk of the accused committing other criminal acts. To assess the existence of this risk, the circumstances of the event will be taken into account, as well as the seriousness of the crimes that could be committed. Provisional imprisonment for this cause may only be agreed when the alleged criminal act is fraudulent. However, the limit provided in art. 503.1.1º LECrim will not be applicable when from the background of the accused and other data or circumstances provided by the Judicial Police or resulting from the actions, it can be rationally inferred that the accused has been acting in concert with another or other persons in an organized manner for the commission of criminal acts or carry out their criminal activities regularly.
Finally, art. 506 LECrim establishes that the resolutions that are issued on the personal situation of the accused will express the reasons why the measure is considered necessary and proportionate with respect to the purposes that justify its adoption and will be made known to those directly offended and harmed by the crime whose security could be affected by the resolution.
SECOND. – Well, in the present case, no risk of flight can be seen. There is no data to appreciate that the investigated may or want to escape the action of justice, especially in view of the fact that as soon as he has had knowledge of the investigated facts, he has appeared in the case and has agreed to the practice of his statement, even in view of the state of health in which he is found that well would have allowed his defense to request postponement of the declaration.
On the other hand, it cannot be perceived that he can hide, alter or destroy sources of evidence relevant to the prosecution, especially in view of the date of the facts investigated and that no evidence has been requested and even less that he can act against the legal assets of any victim.
The report of the accusations (which apart in one of them its power has been questioned) has not provided even indicative elements (the statements of the witnesses in the case do not have corroborative evidence and from them there is no participation in the facts of the investigated ), that endorse the existence of sufficient reasons to believe him responsible for any crime; it is obviously not enough to agree to personal precautionary measures to indicate that Mr. Ghali entered Spain illegally.
Considering the cited provisions and others of general application
I DECREE: There is no place to order provisional imprisonment or any other type of personal precautionary measure against Mr. Brahin Ghali.
He is required through his representation to provide an address and telephone number in Spain in order to be located. Bring this Order to the attention of the Public Prosecutor and other parties in person for the appropriate purposes, warning them that against it there is an appeal for reform and / or subsidiary appeal.
It is agreed and signed by the Hon. Mr. Santiago J. Pedraz Gómez, Magistrate- Judge of the Central Court of Instruction number Five.