Judicial Process
The Constitutional Court (TC) has endorsed the actions of Alicante’s courts in a gender-violence conviction. At the time of the trial, the presiding judge did not offer the abused woman the option to benefit from the dispensation not to testify against her aggressor, a move the defendant argued violated his rights. The plenary of the TC rejected the defendant’s appeal. The court found it justified not granting the option to the victim to abstain from testifying because the woman herself had already waived the dispensation provided by law at the start of the proceedings.
On September 24, 2000, Hamza Mouri was sentenced by the Orihuela Criminal Court No. 1 to ten months in prison for injuring his then-partner, a sentence later confirmed by the Alicante Provincial Court, after which the defendant appealed to the Court of Guarantees.
The defendant sought annulment of the conviction and acquittal on the gender-violence injuries charge, arguing that the judge had not allowed the victim to abstain from testifying, even though article 416.1 of the Criminal Procedure Law recognizes this right for someone who maintained a relationship with the accused.
The Constitutional Court has endorsed the actions of the courts in applying the doctrine of the Supreme Court and the guarantees court, explaining that the dispensation from the duty to testify should not be applied in this case because the victim-witness had already renounced it.
The woman reaffirmed her complaint before the investigating court, where she explicitly waived the dispensation from the obligation to testify against Mouri. On that same occasion, she appeared as a private prosecutor, and pursued the case throughout the criminal process, requesting Mouri’s conviction before both the Penal Court and the Provincial Court, which upheld the sentence.
The court states that the victim-denouncer acted at all times in the legitimate exercise of her fundamental right to effective judicial protection. It also recalls that the exercise of criminal accusation prevents the right to refuse to testify as a witness in the same proceedings.
The ruling, however, is not unanimous. Against this decision, Magistrate Concepción Espejel and Magistrate José María Macías filed a separate vote.