The Superior Court of Justice of Andalusia (TSJA) has decided that the trial against a man convicted by the Provincial Court of Cádiz to five and a half years in prison for a crime of breach of precautionary measures and for injuries with deformity caused to his ex-partner, whom he threw boiling liquid at while she was in a public place in Sanlúcar de Barrameda, should be held again.
According to the account of proven facts in the judgment of the Provincial Court, reported by Europa Press, the defendant had maintained a romantic relationship with the victim and there was a court order issued in August 2024 that imposed a prohibition on approaching her within 500 meters as a precautionary measure.
Two months later, in October 2024, "with knowledge of the aforementioned court ruling and the legal consequences of its non-compliance, having been personally notified," one afternoon, "with total disregard for the prohibition that weighed upon him," he went to the vicinity of the woman's home, coinciding with the moment she went out to throw the trash in a nearby container.
The accused then approached the victim, removed the hood covering his head, and said to her: "I will go to jail, but you are going to suffer." Subsequently, "with the intention of undermining her physical integrity," he threw an unidentified boiling liquid over her, causing burns that required hospital assistance.
The Provincial Court of Cádiz imposed a sentence of five years in prison on the accused for a crime of injuries with deformity and an additional six months in jail for breach of precautionary measures. The defense appealed this ruling before the TSJA, claiming violation of norms and procedural guarantees, as well as error in the assessment of the evidence presented.
Incident with the forensic doctor and nullity of the trial
In the legal grounds, the judgment explains that during the oral hearing, the forensic doctor who prepared the health report of the victim could not appear as she was on sick leave. In light of this situation, the court urged the parties to express their views on the incident, with all of them stating that they considered it appropriate to suspend the trial until the expert's recovery.
Nevertheless, the TSJA recalls in its resolution that the jurisprudential doctrine admits the substitution of the forensic doctor author of the report when there is a justified cause that prevents their presence in the plenary, provided that another forensic from the same institution assumes the expertise, has full access to the file, reviews the medical documentation, and can be subjected to the interrogation of the parties.
In this line, it is specified that the opinion issued by the new expert cannot be limited to a simple formal confirmation, but must constitute "a report of its own, made according to the techniques of its expertise, in which it had to examine not only that of its colleague but the rest of the medical information incorporated into the proceedings".
The TSJA indicates that, after reviewing the recording of the trial, "it is confirmed that --the substitute forensic-- stated that they knew the content of the report issued by their colleague and the description of the fact, agreeing with its conclusions regarding the days of health and the resulting sequelae". "However, they specified that they did not personally recognize the injured party, so they could not enter into assessments regarding what was stated by the author of the opinion", and that they also did not have the opportunity to examine the photographs of the injuries, despite the request from the defense.
The high Andalusian court emphasizes that in this procedure it was not only a matter of interpreting diagnostic or radiological evidence, but of determining whether the distribution of the burns on the body of the complainant was or was not compatible with the version of the facts that she offered, "a decisive issue", given that "there are no eyewitnesses to the fact despite having supposedly occurred in the vicinity of the block of flats where she resides", and that the police investigation was aimed at clarifying whether the injuries resulted from an aggression by a third party or from a domestic accident, among other possibilities.
For all these reasons, the TSJA concludes that "the fact that the personal examination of the injured party was carried out by the forensic doctor who did not appear at the trial and not by the colleague who acted in her place, shows that he was not in a position to ratify the expert opinion nor to answer the clarifying questions that were posed to him in such an important matter for the effectiveness of the right to defense." Consequently, the court declares the nullity of the trial held and orders its repetition before a different court regarding its composition.