The Provincial Court of Las Palmas acquitted two young people of sub-Saharan origin who had been in provisional prison since April, accused of having piloted a boat with 50 migrants who arrived on the coast of Fuerteventura in April 2024. The court concluded in a judgment of the 16th that there is not enough evidence to convict them and that the statement of a single protected witness, without other corroborating elements, cannot alone support a conviction. This is the second decision to this effect taken in this sense in the Canary Islands, which can be used to establish this criterion, according to legal sources. “We will no longer be able to give back to these boys the year and a half they spent in pre-trial prison, but this sentence does justice to what is happening to the alleged boat owners,” says the lawyer for the two acquitted men, Loueila Sid Ahmed Ndiaye.
The magistrates of the sixth section of the Las Palmas court emphasize that the anonymous testimony constitutes the only clearly incriminating evidence for the prosecution. Since it is not supported by any other objective evidence, it does not meet the threshold required to break the presumption of innocence which supports the accused. The judgment describes that the statements of the protected witnesses present relevant contradictions, in particular with regard to the number of people supposed to steer the boat, while the photographic recognitions were based solely on the color of the skin, a criterion considered insufficient to attribute paternity.
“It is a boy from Mali and another from Senegal,” explains the defense lawyer of the two acquitted men, Sid Ahmed Ndiaye. “They both came from a rural area. They had never seen the sea in their lives, for the first time in their lives they were riding on an inflatable boat.” The lawyer points out that in a boat of 52 people, of which around 48 are North African and only three people from West Africa, “by coincidence, two protected witnesses of North African origin named them.”
The prosecution had requested six years in prison, considering that the accused had acted as bosses on the journey between Tarfalla (Morocco) and Fuerteventura. The court concluded, however, that his role in managing the boat’s engine, compass or fuel was not proven. The vessel – “a rudimentary boat” made of “wood and pneumatic-type neoprene” and “equipped with an outboard motor devoid of any active or passive safety measures”, according to the judgment – was intercepted on April 6, 2024 with 47 Moroccans on board – including seven minors – and three sub-Saharan nationals.
During the trial, National Police agents explained that mafias could use young sub-Saharan Africans as alleged bosses to avoid implicating Moroccan citizens, an extreme that the court considered plausible, but insufficient to justify a conviction. The magistrates recall that migratory patterns or police suspicions do not replace the need for conclusive evidence and that criminal responsibility cannot be attributed to them without corroboration.
The Court also underlines the consolidated doctrine of both the Supreme Court and the European Court of Human Rights, which admits the figure of the protected witness, but with certain conditions so as not to violate the right to defense. Concretely, this organization imposes three requirements. The first of these is that anonymity was accepted by the judicial body in a reasoned decision; the second, that the defense deficits generated by anonymity were compensated by measures allowing the accused to combat the reliability and credibility of the witness and his testimony; and the third, precisely, that the statement of the anonymous witness is accompanied by other elements of evidence, so that it cannot, by itself or with decisive probative value, undermine the presumption of innocence.
In this case, both the sentence and the defense lawyer emphasize, there is no additional testimony, no expert evidence or no physical evidence that would support the incriminating story “beyond a reasonable doubt”, a principle that the judgment explicitly cites to justify the acquittal. “They were detained for a year and a half and it only took 24 hours for the court to pronounce a sentence and release them,” criticizes Sid Ahmed.
The sentence orders the immediate release of the two defendants, who had no criminal record and had been in pre-trial detention without bail since April. The decision can be appealed to the Civil and Criminal Chamber of the High Court of Justice of the Canary Islands. Previously, Chamber 1 of the Provincial Court – in which the former government delegate against gender violence, María Victoria Rosell, is registered – had issued a decision to the same effect, which could contribute to establishing this criterion.
In recent years, several lawyers from the islands, including the defense lawyer herself, have denounced the fact that Spanish courts (and in particular those based in the Canary Islands) condemn hundreds of migrants as employers – and with particular harshness – when in reality they are people other than the one who actually organizes the trip and derives financial income from it. A recent article by lawyer Daniel Arencibia recalls that the United Nations Office on Drugs and Crime indicates that in the Canary Islands, “members of criminal organizations” linked to immigration are rarely persecuted, focusing the investigation on “clients who are often in a vulnerable position and may be victims forced to carry out criminal activities.”
Arencibia’s study argues that “it has become common for the main burden of proof in trials under Article 318 bis of the Penal Code (which includes crimes against the rights of foreign citizens) to focus on two or more boat travelers who denounce other travelers as patrons or organizers of the trip.” “Plaintiffs and defendants are usually of different nationalities and languages, and the existence of friction or animosities generated during the tension of travel is common,” explains the lawyer.
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