The Court dismisses the requests for annulment of the Chewing gum defense in the Diana Quer case, but appreciates "procedural irregularities"

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After remembering the opening of oral trial against José Enrique Abuín Gey, the Chicle, for the death of Diana Quer, the case is already in the Provincial Court, which has just pronounced on the previous issues presented by the parties, mainly for the defense. The lawyer representing the rianxeiro, Fernanda Álvarez, raised in her brief the violation of her defendant's fundamental rights and challenged various tests carried out during the investigation. In a long order, the court dismisses his petitions one by one, although he agrees that some "procedural irregularities" may have occurred.

One of the fundamental rights that in the opinion of the lawyer was violated is the defense and assistance of a lawyer because a lawyer ex officio was not appointed at the time of the arrest, for which reason he requests the nullity of the first statement that the defendant gave in police headquarters. Alvarez argues that the police report states that the Chewing Gum requested a lawyer ex officio, however, "was more than 24 hours without legal counsel, which is a serious irregularity," and adds that it does not appear in the case if requested the appointment corresponding to the Provincial Bar Association of A Coruña or its designation. The decision of the Provincial Court acknowledges that "the legally mandatory notice to the lawyer of the duty shift has not been documented in the case," but he adds that what is relevant in this matter is that in his first police statement, José Enrique Abuín was assisted by a lawyer appointed by him, which "does not warn to what extent it may affect the validity" of the test.

However, the court takes into consideration the arguments of the defense and "since the possible criminal relevance of the hypothetical violation of rights that is denounced can not be ruled out", it determines to send a copy of its resolution and of the brief of previous questions to the investigating judge of Ribeira to "decide on the possible initiation of criminal proceedings to clarify such alleged violation." In any case, it categorically determines that this "will in no way affect the course of the present case."

Media judgment

Another of the fundamental rights of José Enrique Abuín that allegedly had been violated is that of the presumption of innocence and a fair trial with all the guarantees. In this sense, the defense lawyer speaks of the "media show" that has been generated around the cause of Diana Quer and the "systematic leaks of summary proceedings to the media." The lawyer argues that this situation puts at risk the independence and impartiality of the jury that will be in charge of assessing the facts. Given this, the Provincial Court responds that the court is not yet constituted and that suspicions about its impartiality "are matters unrelated to the present procedure."

The judge of the Sixth Section also defeats the challenge of various investigative measures that, according to the defense, violate the right to the presumption of innocence of the accused for alleged "overreaching of the Civil Guard" in the exercise of their functions, as well as the impugnation of testimony statements.

Another delicate issue in which the car of the Provincial Court enters has to do with the bridles allegedly used by the Chewing Gum to bind and murder Diana Quer. Invoking the violation of the right to defense and a process with all the guarantees, the lawyer stated that "in no way may pieces of black plastic existing in the courts be considered as evidence, as evidences or pieces of evidence in the name of flanges, nor take into consideration the photographs taken in the crowds ».

Tests destroyed

In its brief, the defense points out that in the diligence of ocular inspection and removal of Diana's corpse "there is not even mention of the existence of flanges and adhesive tapes" and that the first reference of them is through some incorporated photographs to the report. He points out that the images show a closed plastic tape and pieces of other alleged bridles in poor condition, but "there is not the slightest evidence that the bridle of the photograph is what was allegedly found in the victim's hair. […] as we do not have the slightest guarantee that it would have the same measures indicated ». Added to this is the fact that these remains were destroyed when they underwent a DNA examination "which is a very serious attack against the integrity principle that must inexcusably preside over this type of procedure".

The lawyer adds that this situation violates the right of defense because it prevents her from having direct knowledge of the state and original characteristics of the bridles, "and what is fundamental, making it impossible to subject such elements to the proper contraction".

The court does not upset the lawyer in that it is "regrettable" that the bridle with which, according to the thesis of the accusation, Diana Quer was killed has not been preserved intact, "especially when its fragmentation is far from to be seen as absolutely essential for carrying out DNA analysis ». However, it rejects the defense's argument arguing that there are more evidentiary elements that could demonstrate what the concrete characteristics of the plastic tape were; that the complete conservation of the piece is not an essential procedural or legal requirement; and that the parties could have requested technical evidence to prove or disprove the possibility that this instrument could cause the girl's death. In view of all this "can not be seen a violation of the right to defense, beyond the procedural irregularity committed by not retaining in its entirety the alleged instrument of crime."

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