The Court of Las Palmas has ordered this Thursday that the young Senegalese man who has been in prison since December 21, accused of being the boss of a canoe, be immediately released, considering that he is a minor.
The Prosecutor's Office and the judge in the case had denied him this condition on repeated occasions previously;
but on this occasion, the order concludes that “the medical-forensic conclusions” match “more with a possible minority than with a certainty that the subject is of legal age.”
This decision, which revokes the prison order issued by the Court of Instruction number 3 of San Bartolomé de Tirajana, comes three days after the United Nations Committee on the Rights of the Child demanded a precautionary measure from Spain so that he would not continue to be detained with Adults.
On December 16, a canoe arrived on the coast of Gran Canaria.
Among the occupants of the boat were two Senegalese nationals who, upon setting foot on land, were arrested as alleged skippers of the boat and imprisoned despite the fact that they declared that they were minors and this was recorded by the Red Cross.
But the testimony of two protected witnesses willing to collaborate with the police incriminated them.
The accused's entourage reported in this sense that both were deceived by the real pilots of the boat, who ordered them to take the helm when approaching land to avoid being arrested.
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This accusation was sufficient for the Police and Justice.
On December 21, the court ordered his entry into preventive detention.
The Las Palmas II penitentiary center, however, alerted the court and the Prosecutor's Office a few days later that two of the detainees were minors, after the Catholic Penitentiary Pastoral association raised the alarm.
On January 4, the judge urgently urged the carrying out of age tests at the Institute of Legal Medicine.
One of the tests was not carried out until January 25 and certified the minority of one of them, who was transferred to a juvenile center.
The forensic report of the second of the accused, on February 16, was not so conclusive: it maintains that, although his most probable average age is “18.2 years”, “the chronological age of the alleged minor is compatible with the age referred to by himself” and establishes a possible age range between 16.51 and 19.9 years.
That day, in addition, the lawyers presented an apostilled birth certificate with a sworn translation that certified the minority.
The judge has valued the coroner's arguments.
The magistrate maintains that "the forensic medical conclusions contained in the report [...] are more consistent with a possible minority than with certainty that the subject is of legal age."
The defense has also recalled that the fixed legislation, the lowest value of the range must prevail so that the protection of the minor prevails.
In case of doubt, they add, the person concerned should be treated as a minor and not as an adult.
The case has reached the United Nations.
The United Nations Committee on the Rights of the Child reported on Monday that it granted protection to the Senegalese minor.
The UN does not assess whether the charges that the Police, the Prosecutor's Office and the investigating judge responsible for his case make against the young man are correct (a crime of favoring irregular immigration), but it does conclude that Spain has not treated him as required by the International Convention on the Rights of the Child and calls for “precautionary measures to ensure that the author remains separated from adults deprived of their liberty,” while “the case is under consideration by the Committee and until the author reaches the age of majority.” age in accordance with a procedure in accordance with the Convention.”
Pattern trials
This case occurs in a context of growing doubts about the trials of the boat owners.
A report by Canarian lawyer Daniel Arencibia denounces the irregularities hidden behind the arrests and subsequent convictions of the immigrants accused of captaining the boats.
According to his research, Justice imposes higher penalties on the islands compared to other autonomous communities.
In the Canary Islands, three out of four defendants are convicted without there having been a trial phase.
For these cases (risky journeys without significant enrichment of the employer), the Prosecutor's Office in the Canary Islands proposes sentences of three years in prison, while in the rest of Spain, the usual Prosecutor's proposal when there is agreement is two years, which in large part part of the cases stop being fulfilled after six months.
“The budget allocated to the fight against illegal immigration is focusing on the last link in the chain,” says Arencibia, “the fisherman who has been impoverished by the arrival of foreign fishing companies in their waters, with hardly any observation. arrests of people who really get rich from irregular immigration.
The State is also reducing the generally accepted procedural guarantees, sending many people outside the mafias to prison, which is especially serious when it affects minors.”
The lawyer also emphasizes that, as has happened in this case of the two imprisoned minors, a testimony on the beach is enough to sentence the alleged skipper of a boat to prison, despite the fact that there are already several Provincial Courts that have stated that for a correct administration of Justice it is desirable to have testimonies other than those of witnesses who obtain residence permits for accusing a fellow traveler.
The Ombudsman, in fact, has already questioned the interrogations that Frontex and the National Police carry out on the survivors upon arriving at the islands.
Arencibia's report also criticizes the performance in the room.
“Oral trials are held in most cases without the presence of travelers other than the accused, leaving the defense without the opportunity to question any witnesses,” Arencibia emphasizes in his report.
This praxis not only leads to defendants on the islands serving higher sentences than in the rest of the territory, but also to the fact that those from the Canary Islands usually need another five years of support from charity, until they obtain their own means to continue their immigration project. to other parts of Europe.