The defendant's lawyer has requested the annulment of the recordings because they were obtained in the framework of the instruction of the sexual assault of the Sanfermines of 2016 and the suspension of the trial until the judge decides. The accusations have opposed the understanding that the consent granted by young people when they voluntarily handed over their mobiles during the investigation of the violation of Pamplona is above any express judicial authorization. The judge has determined that he will express himself on the validity of the videos as evidence in sentence and not before.
The magistrate understands that the videos "are a determining test, but not the only one", and has demanded room to elucidate among the main theses if there was a prospective investigation that is, on previous events and not directly linked to those of the ongoing investigation , and on the scope and meaning of the consent on the transfer of fundamental rights such as privacy. "The court feels unable to be able to refute in favor or against the theses of both parties," said the head of Court Number 1 of Cordoba, Luis Santos.
Alfonso Jesus Cabezuelo, Jesus Escudero, Antonio Manuel Guerrero and Jose Angel Prenda are accused of committing a crime of sexual abuse and another against intimacy. The first is also charged with a crime of mild abuse, for having hit the alleged victim when he refused to fellatio. The Prosecutor's Office asks for three years in prison for a crime of sexual abuse, and four more for the crime of violation of privacy. A two-month fine is also requested for the military of La Manada at a rate of 12 euros per day for a crime of injury.
The young people, all with a serene attitude except for Prenda, who has not stopped moving their legs, showing some nervousness, have repeated the strategy they already manifested during the instructional phase, and after manifesting themselves innocent, have refused to declare. His defense understands that the entire accusation is based on videos that he considers void, so it makes no sense to testify about facts whose validity they do not admit, as explained by his lawyer, Agustin Martinez Becerra, to this newspaper.
The facts by which they are judged occurred in the early hours of May 1, 2016, when the victim got into the car of the four young people, after having met them in a booth at the fair in Torrecampo (Cordoba). Upon entering she fell unconscious and, on the way to Pozoblanco, where she lived and was destined by the civil guard Antonio Manuel Guerrero, they all started touching her breasts and, Cabezuelo, also kissing her. The plays were recorded by Prenda on Guerrero's mobile. That video was distributed in two groups of chat.
These recordings are the determining evidence on which the accusations base their arguments and for that reason the defense has asked for their annulment during the phase of previous questions and has asked the judge to decide on the validity in that period and not in the sentence. "That decision revolves the facts of this trial and it is the videos that are the evidence base of the crimes," he said. The lawyer of La Manada considers that the recordings were obtained in violation of the right to effective judicial protection and the right to privacy of communications, since the images were obtained within the investigation of another judicial cause – the sexual assault of the Sanfermines – and they were different facts for whose investigation the instructor did not give authorization. "There is no judicial authorization to investigate anything prior to the events of July 6 and 7," said the lawyer, for whom this action is a "prospective investigation" that violates the right of defense.
For the defense, the investigation of the mobiles of their defenders to obtain these images is due to a “disproportionality”, encouraged by “the confusing situation in Pamplona”, in the days after the arrest of La Manada for the sexual assault of the Sanfermines . "There was only the indication that these people had the habit of making unfortunate comments on the mobile and therefore determined to investigate to see what they were." The lawyer has also stated that at the time the images of Pozoblanco were found, there was no complaint by the victim and that “to try to remedy in a torrid and malicious manner” having extended the investigation beyond the days July 6 and 7, it was decided to send the Fora Navarra to Pozoblanco to locate the girl and that she could file a complaint.
The prosecutor, Jesus Aparicio, has defended the documentary validity of the videos, denying that the investigators had gone further in their functions. “There has been no disproportionality in the interference of the Foral Police since the obtaining of the videos of April 30 is protected by the express consent that the defendants gave when they voluntarily handed over their mobiles” when they were arrested on July 7. A consent, recalled the prosecutor, that the youth repeated two days later, when they were asked for the password to access them. "His defense lawyer at that time did not make any statement, nor qualified, nor restricted that consent," said Aparicio, who has contributed doctrine and jurisprudence of the Supreme Court, the Constitutional Court and the European Human Rights Court in which it is found that access to the smartphones it requires a prior judicial authorization, but that “must be subsidiary to the consent of its owner”.
An argument shared by the victim's lawyer, Blas Arevalo, and the lawyer representing the Clara Campoamor Association, Patricia Catalina. Both have argued that the facts of the Sanfermines were serious enough to find out if those events had been repeated on other occasions.
The judge has decided to wait for the ruling of the sentence to elucidate on the validity or the nullity of evidence of the videos, thus dismissing the request of the defense of La Manada to suspend the case until it is clarified on the matter. The magistrate has argued that with his decision he avoided "revictimization" and guaranteed the right to a "process without undue delay."
The trial will resume on Tuesday with the appearance of the alleged victim. He will do it behind closed doors and without the presence of the media. At the request of his defense, he will do so in such a way that he cannot be in direct contact with his aggressors. The Clara Campoamor Association has also requested that the expert evidence be extended and a suicide attempt that the young woman suffered last August 27 be included and that has been collected by the coroner. The judge has agreed to the lawsuit, which the parties have not opposed. After knowing by the Foral Police the existence of the video, and before the social and media impact of what happened, the girl suffered a shock post-traumatic from which it took 90 days to recover. The aftermath has forced him to leave Pozoblanco in seasons.
In addition to the young woman, they are also called to testify the rest of the witnesses, about a score of twenty, including Angel Boza, the fifth member of La Manada, who was not present during the events in Pozoblanco.