Misadventures of a gypsy criminal lawyer

By Marcos Santiago Cortés, lawyer of the Córdoba Bar Association

Epic and beautiful is the defense of any person who deserves to be heard in their circumstances surrounding the alleged commission of the crime: any person is the most important for a lawyer when he is his client. “The Misadventures of a Gypsy Criminal Lawyer” is a title that I love because it sounds like a Jules Verne novel to me, on a par, for example, with “Twenty Thousand Leagues Under the Sea” and, although it seems somewhat comical in tone, I do not lack reasons: the misadventures of a gypsy criminal lawyer I assure you that they are worthy of being written as a novel of intrigues, extreme situations and also, as an example of a life dedicated to the most outcasts of society. Being a criminal lawyer is not only a profession where you earn money, but it is, on many occasions, an altruistic and therefore humanistic activity that fights for the freedom of people and not only without compensation, but also, too often you are left waiting for that call of thanks that never comes.

In that sense, criminal lawyers can never and should never be called as I once heard at a Jurist Conference: "legal operators." That is too frivolous a terminology for such a humanistic enterprise. For us, ahead of the law, there is the desperation of people and their families to lose or not lose their freedom, in addition to sincere regret for having committed the crime, although that regret seems influenced by the sentence that is coming. But the truth is that for us there are never completely guilty because we know that behind and in front of the commission of a crime there is a whole drama inside and around the criminal.

THERE ARE NO COMPLETE GUILTY

Many times, many people seem to have a predestined destiny and that is why there are young people who come to the office and I already know that they were born prison meat. Those must be helped to the point of mental exhaustion. I believe that the sentence of deprivation of liberty in itself is already disproportionate because it condemns an entire family that suffers it and, especially, an entire project of a person for the commission of a single act at a given time, as if that person were only that fact. And I make mine the words of Antonio Machado in his Juan de Mairena: “When a somewhat thoughtful man looks at himself from the inside, he understands the absolute impossibility of being judged with any degree of accuracy by those who look at him from the outside”

Perhaps criminal lawyers are an exception; our experience can never be like the experience of a prosecutor or a judge, because they accuse and judge facts without knowing the people. Perhaps it should be this way to achieve the much-needed impartiality and thus satisfy the victims of crime, but it is no less true that they judge or accuse strangers and, therefore, they judge and accuse with a lack of very important and perhaps crucial data in the face of to the principle of proportionality.

There is a community of people who tend to tread too much the Criminal Courts, despite being a small minority: the gypsy people. It is so small, that of the 46.940 million people that populate Spain, this community represents the tagline of that figure: 940.000. And from this figure we must subtract minors and the elderly over 70 years of age. In other words, for every gazillion non-Gypsies, there is one Gypsy. And despite this, the gypsies win as a relative majority in prisons by a landslide, since in many places they occupy between 15% and even 30%. For this figure to be socially logical, at least 15 million gypsies would have to populate Spain, so something is wrong and I assure you that we cannot resort to false answers as well as xenophobic ones like the one I once read to someone whose name I do not want remember: That we gypsies were born to be thieves.

LEGAL DISCRIMINATION AND SOCIAL EXCLUSION: WHY ARE ROMA THE MAJORITY IN PRISONS?

Today, the Criminal Law of the Act governs, the accusatory system and not the inquisitorial system, which bases a conviction on evidence carried out on an equal footing and under the principle of presumption of innocence. Today the data of social origin is obvious as an element to be taken into account in the balance of Justice. Today, ethnicity is no longer a lead element in the weight of the scales of Justice. So why are the Roma still in the majority of prisons?

Mainly due to two situations, one new and one old:

The gypsies continue to be socially excluded and have to resort to the same crimes as always to survive, such as petty scams or robberies with force. And today, from the second half of the XNUMXth century, a crime is added that did not appear in the old regime and that finds its natural and ideal space in areas at risk of exclusion: drug trafficking on a small scale and at a retail. The meeting of the gypsy people at risk of exclusion and drugs has raised the prison population to quotas of the Middle Ages. By the way, the gypsies are the fools of the drug, because they sell drugs on a small scale to survive, directly to the people from their homes showing their criminal attitude before the fuerzas de seguridad. This shows not only their lack of awareness of what they are doing and therefore their poor educational level and social ingenuity, but also their urgent situation, which exceeds the fear of being arrested. But that form of crime puts the entry and registration and subsequent arrest and sentence to egg. The gypsy assumes the loss of his freedom because due to his exclusion he cannot get enough money to give his children a decent life and at the same time, that economic outlet also allows him not to look for other outlets that he thinks he will not find due to your exclusion. Of course there are exceptions to exacerbated enrichment, but that is what it is, the exception. The main result of the gypsy people's encounter with drug trafficking is that the gypsy eats a few years of the drug and then the drug eats him and his family through his own hookup and many years in jail because the criminal type that punishes these behaviors, article 368 of the Penal Code, includes any form of participation as authorship, thus being a huge and disproportionate catch-all that directly affects the prison population of the gypsy people by causing one, in my opinion, unconstitutional defenselessness as I am going to explain here: the consideration that any type of participation in the commission of conducts referring to article 368 of the Criminal Code, is equated to authorship without contemplating imperfect forms of participation such as complicity that entails a substantial reduction of the penalty to be imposed, is a manifest disproportionality that directly affects the imputation to the gypsies because they generally live together infamily and this leads to multiple convictions of family members who have not intervened as perpetrators and yet are convicted in this main form of criminal participation; that raises the gypsy prison population.

But it is also true that in addition to the delinquent population that acarrea living in the bosom of exclusion, what is supposed to be the old inquisitorial system continues to act unconsciously as an unwritten norm in the minds of legal operators, raising the gypsy prison population. Of course, that seems impossible to prove given the democratic penal legislation and the Constitution, but when the subject burns because the analyst is also a Roma, you study with much more effort and interest and then youacat is a terrible conclusion: Criminal Author Law, which condemns for the social origin of the suspect more than for his evidence of charge, like a virus, camouflages itself under the cell wall of democratic norms, coexisting with them in full force.

Because today the Criminal Law of Copyright continues to act in the minds of legal operators and in the discretionary power of the sentencing body that does not depend on any rule but on its own wise will. But that is not because legal operators do it in bad faith. It's not even their fault: it's because they have nurtured that negative image of Roma in education at all schools and without realizing it they continue to think that Roma are guilty precisely because, as in the past, if they are Roma they come from exclusion and if it comes from exclusion, it has many ballots of having committed the crime because in exclusion people turn to crime to survive; the whiting that bites its tail And do you know why they sucked it? Because democratic legislation has not tried hard enough to be a strong shock to make us forget and bury old retrograde legislation.

The democratic system has been slow in the fight for equality. Look if it has been slow that the criminal legislation against discrimination, such as article 510 and company, which are also at the end of the Code and we already know that the systematic location in the legal bodies is not by chance and has a lot to do with the level of protection that is supposed to them, as well as the aggravating circumstance of committing the crime for racist reasons of article 22.4, are articles that appear in the 1995 code, that is, 20 years after democracy was established in Spain. Do you see how the opponents of judges and prosecutors who memorize the articles that they have to sing in their entrance exams to the profession have not sucked in a democracy the criminal fight against discrimination because these criminal types were never asked by the examining court ? How could they be questioned if they did not exist until 1995? (Well, after 1995, they're not usually asked either.)

The party system, the Division of Powers, article 14 of the Magna Carta that enshrines equality, has totally ignored discrimination as a criminal matter. The Penal Code punishes the most serious behaviors against civilization, but discrimination has not been considered serious behavior and that is why we have had twenty years of democracy considering that discriminating against and embittering the life of a person for being a Roma was not a serious thing to protect it criminally. What more proof do you want that in full democracy the criminal law of the author was still in force as an unwritten norm?

But it is that after 1995, in practice no one was sentenced for these behaviors either, since they were not considered proven. It has been the European directive 2000/43 that reminds the Spanish Courts and Tribunals that these criminal types exist.

And if discrimination is not fought against, it is because it is allowed or because it is not recognized, which is the same as saying “we are the good ones and the gypsies are the bad ones” (that is copyright criminal law). In this sense, the Spanish democratic state, before 1995, fostered and nurtured the good health of copyright criminal law. And what do you want me to tell you, using criminal language, if the Spanish democracy took so long to recognize discrimination as criminal, we, the gypsies, were able to impute the Spanish democracy as the author of a crime of promoting discriminatory conduct by commission by omission.

The penal legislator should have awakened the people, should have removed the conscience of the judges and prosecutors as he did in the reform of the Penal Code of 1973 operated in 1989 when in article 426 he began to condemn Gender Violence. But with the gypsies, the right to equality that was supposedly enshrined in the Constitution was a kind of “it looks good” that was of no use to us.

Today the principle of presumption of innocence. In other words, it is not like before the accused gypsies since they were presumably guilty. But undoubtedly the high gypsy population in prisons shows that the majority of gypsies still populate social exclusion. But I repeat, is it only the social exclusion that leads to delinquency that is the cause of the high prison population? What if, in the discretionary power of the sentencing body and if in the indictments of the Public Prosecutor's Office, the Roma continue to have little credibility in the face of the doubt that supposedly always acquits, but not so much in the Roma precisely because of the social ignorance that the legal operators do you have from the gypsy people?

Look when there is doubt, that is, when there is evidence of charge and defense at the same level, inevitably you have to acquit because the freedom of a guilty person is preferred to the conviction of an innocent person. And who considers that there is doubt? The wise decision of the judge only subject to his wisdom and common sense and the wise decision of the prosecutor when he makes the indictment and has the freedom to propose dismissal with respect to a defendant. And if a presumption of guilt in the wise will moved by a racist inertia derived from the lack of culture in equality?

REMAINS OF THE INQUISITORY SYSTEM IN LA Latest News

Can we blindly trust democracy when that democracy has taken 20 years to configure criminal types against discrimination?

I am going to list some criminal procedural practices in which I see certain features and remnants of the inquisitorial system and that I believe influence this high gypsy prison population.

◾The police, when a crime is committed from the home of a gypsy, ask for a court order to enter and search, which many times are not, in my opinion, sufficiently motivated by the orders of the investigating judges, but the appeal for annulment; those cars look untouchable. Once inside the house, they almost always tend to arrest the entire family, despite the fact that in the investigation report only one or two of them appear as possible perpetrators of the crime. That is the inquisitorial system and author criminal law. And that, without going into details of the excess of brute force that they sometimes use and that in most cases is unnecessary. That is also the inquisitorial system and author's criminal law

◾Then, not only are they all arrested, but they are all charged and after the investigation there are defendants who have not committed any criminal conduct, in addition to living with the main suspect. Well, the accusation does not usually dismiss with respect to some and prefers to wait for responsibilities to be cleared up in the oral trial. That is the inquisitorial system and author criminal law. There are many innocent people charged in this way. In these cases, it would be necessary to study the issues better, delve into the investigation and not accuse the bulk or wait for responsibilities to be cleared up in the trial. It is necessary to dismiss before with respect to some relatives. It is true that sometimes it is done, but other times it is not and for those others, what I say already makes sense and of course, I write.

◾In crimes against property for the sale of scrap metal, they go to the shantytowns and arrest all the members of a family, just like before, and not just the one who has handed in the card at the scrapyard. And then, the prosecutors do not accuse the owners of the junkyard that by buying the material and not demanding any certain information about the origin of the material, they are promoting the crime. That is the inquisitorial system and author criminal law.

◾But it is that later, when the oral trial arrives and the lawyers sit down to discuss a possible conformity, we see that the whole family is accused when the prosecutors know that the wife of the gypsy or the daughter is exempt from the duty to denounce for the relationship of affectivity. Not taking into account that the family has no obligation to report is the inquisitorial system and the author's criminal law. Almost without any legal rigor, the gypsies, as they are a family, in a very sad and unfair parallelism, are accused as an organized group and this criminal aggravating circumstance is added to the basic crime committed. As I say, the aggravating circumstance of an organized group raises the sentence a great deal, so much so that it terrifies and despairs these families and bends them until they end up admitting a crime in which they have not taken part, but which they accept in total conformity that includes to the main defendant to lower his sentence precisely because they love him as a family and not because they are part of his gang, even if this means that they all are sentenced to a lower sentence. As in the past, the gypsies recognized being witches to stop being whipped. And here comes the lawyer who, many times for fear of being sentenced to more years than necessary, also bows down. The lawyer knows that there is a tendency to condemn and therefore he has a tendency to agree and not to fight for acquittal. When the lawyer finds the prosecutor's indictment that pulls up, accusing the whole family and imposing the aggravating circumstance of an organized group, he informs his clients and offers them the opportunity to agree to the sentence without the aggravating circumstance of an organized group and That way, years in prison are reduced, but everyone is convicted. It is true that some do not enter prison with a suspended sentence under the condition of not committing a crime for a certain period of time. But then, they commit any minor crime such as driving without a license - a typical crime within the risk of exclusion - and for selling melons to get out of selling drugs, but without a driving license, and thus, without knowing it very well, they break the suspension conditional that they had agreed not to go to jail and end up inside. That is, in the end, so much procedural sacrifice made and family solidarity, to end up in prison. There are many gypsies in jail for breaking parole by committing petty crimes. There are many gypsies and gypsies in jail because the whole family is condemned by the pressure of unfairly inserting an illegal organization into what is a blood relationship. And not only that, but there are many provisional cases of abandonment of minors promoted by the autonomous communities when both parents go to prison when the Administration knows that there is a very extended and united family that can provide shelter, food and, above all, affection to those kids. That is the inquisitorial system and author's criminal law

In short, perhaps the old thinking that legal operators have about the Roma people is still nourished by prejudices and topics that could influence the way of instructing and prosecuting crimes and that leads to convictions, not so much motivated by the complete celebration of the trial where there would be an opportunity to prove the innocence of many but for the tendency of all the agents involved - including the accused and their defenses - to the conformity accepted by innocent people who also have in their minds remnants of the author's criminal law that tells them that if they face trial they are less likely to be acquitted for being Roma.

EVERYTHING IS CHANGING

We gypsies, when we toast, we do it for freedom. Evil above all does not come from the evil itself but from having little information about it. It is true that now everything is changing. Now legal operators are being given good legal milk and this should have good results. I talk about the gypsy people to legal operators and I explain many human situations. My experience as a criminal lawyer is precious in this regard, so much so that I feel privileged. My relationship with the prosecution, the hearing, the criminal courts and the investigating courts is worth telling my children about because I have found and am finding a lot of understanding.

With me they have overturned and the tortilla has turned because I think that the judges and prosecutors were looking forward to seeing Roma on the other side, off the bench, sitting on the platform in front of them in order to meet the Roma people face to face, face to face , in first person. Therefore, I am sure that democracy has many resources and tools to achieve equal treatment of all people regardless of any circumstance unrelated to the facts. But another resource is emerging that is perhaps the most effective: with the over-effort of the legal gypsies to change that bad image from you to you, legal operators are becoming legal professionals. And this very human change is what is actually repealing forever the terrible criminal copyright law that, well into the XNUMXst century, continues to insist on embittering freedom and therefore the life of the gypsy people.