Why did Dani Alves enter pretrial detention without having been tried? Can your victim waive athlete’s compensation or will that have to be determined by the judge?
The news broadcast in the media about the alleged serious assault suffered by a woman last December in Barcelona for which international footballer Dani Alves is being investigated as the alleged perpetrator has left neither a large part of the population nor legal operators and legal professionals.
Briefly, and with due caution, given that the information we have comes from non-judicial media, we will now analyze some of the most outstanding legal aspects of the procedural actions carried out by the judicial body and the statements made in the press. regarding the resignation of the victim to receive compensation.
In the first place, we will address the issue related to the decision issued by the Investigating Court immediately agreeing to his admission to prison.
In this sense, we must indicate that the Criminal Procedure Law (LECrim) authorizes the investigating judge to adopt a series of precautionary measures aimed at ensuring the subjection to the procedure of the investigated, his presence during the process and the effectiveness of compliance with the sentence. that is dictated in its day. Among them is the imprisonment of the defendant. These measures are of an exceptional nature and require the existence of specific assumptions, given the restrictive nature of rights, especially when the deprivation of his liberty is agreed. Its regulation is contemplated in articles 502, 503, 504, 520 and following of the LECrim.
As established in article 520 of LECrim, it must be carried out in the way that least harms the detainee or prisoner in his person, reputation and patrimony. For this reason, precautionary measures are of a subsidiary and instrumental nature and will be linked to the duration of the sentence established in the sentence that may be handed down at the time. It can only be agreed upon when there is no other less burdensome one that could serve the same purposes, and it must only be adopted in proportion to the harm or risk that is intended to be avoided. Among these reasons are the concealment, alteration or destruction of evidence; criminal reiteration or flight risk, as indicated in article 503 of the LECrim.
There are reasons to believe in his guilt
Therefore, we are faced with a case in which the investigating judge has considered that the facts that concur in the case present the characteristics of a crime and there are sufficient reasons to believe that the person under investigation is responsible for it, as well as that there could be a risk of escape. and render ineffective the actions to be followed in the process.
The specific and detailed reasons on which this decision is based will have been reflected in the Order issued in which the personal situation of the defendant is resolved, the content of which we do not know as it has not been disseminated.
However, supposedly, in this case, this measure of total deprivation of liberty and the fundamental right to ambulatory freedom, through admission to a penitentiary center during the conduct of a criminal proceeding, could be due to the following reasons:
– The characteristics of the crime of sexual assault punishable by a sentence of more than two years in prison.
– The possible appearance in the cause of sufficient reasons to believe criminally responsible for the crime.
– The social alarm of the crime allegedly committed.
– Ensure the presence of the person being investigated or prosecuted in the process when a flight risk can be rationally inferred. Taking into account the nature of the act, the seriousness of the penalty that could be imposed on the person investigated, his family, employment and economic situation, his residence abroad for work reasons, the absence of extradition with other neighboring countries …
Waiver of Indemnity
Secondly, we will refer to the information disseminated in the press and on news channels regarding an alleged refusal or waiver by the victim of receiving compensation for the damages suffered.
In the event that said statement is true, we would find ourselves before an express, clear and final waiver of their civil rights, which could be interpreted as a sign of maintaining only their accusation regarding the perpetration of the crime committed and making clear their lack of interest in obtaining a financial benefit by expressing their disregard for receiving the amount of the corresponding amount as damages.
Therefore, it must be considered that he declines to receive compensation amounts that could belong to him, both those provided in his favor by his own lawyer and the amounts and concepts that were calculated and requested by the Public Prosecutor. Said conduct and behavior would further endorse, if possible, his credibility in the narration of the facts, by demonstrating a clear absence of an intention to enrich himself.
Notwithstanding the foregoing, we must point out that given the seriousness of the criminal offense, an alleged crime of sexual assault, in order to comprehensively protect the victims of these heinous crimes, Organic Law 10/2022 of September 6 establishes in its first final provision, section two, a modification by adding a new second paragraph to article 112 of the LECrim: «however, even if civil action had previously been waived, if the consequences of the crime are more serious than those were foreseen at the time of the resignation, or if the resignation could be conditioned by the relationship of the victim with any of the persons responsible for the crime, the waiver of the exercise of civil action may be revoked by judicial resolution, at the request of the damaged or harmed person and after hearing the parties, as long as it is formulated before the process of classification of the crime.
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