He spent 15 years in prison accused of various crimes of rape that he did not commit. The Supreme Court announced yesterday the sentence that puts an end to the judicial martyrdom of the Moroccan citizen Ahmed Tommouhi, 73 years old, who yesterday had only one request in his house in Martorell: "I only wish that an injustice like mine does not never happen to anyone". "But I can't say that this judicial recognition makes me happy, no one will give me 32 years back," he explained by phone to La Vanguardia. "I was right and I always said it and now it's proven."
The sentence recognizes some of the resounding judicial errors that led to the conviction of Tommouhi and Abderrazak Mounib; the latter died in prison in 2000: the trial was held without the court - presided over by the current Minister of Defense, Margarita Robles - analyzing an expert report with the analysis of semen remains obtained from a victim who they were not Tommouhi's and therefore could not be assessed, and the two members of the scientific police who had drawn up the report were also not called to testify.
In 1997, a conviction against Tommouhi was already overturned because the remains of semen found on the clothes of a victim were actually Antonio García Carbonell, a Spanish citizen who bears a strong physical resemblance to Tommouhi.
García Carbonell, of Romani ethnicity, was arrested in 1995 and sentenced to several sentences totaling 228 years in prison for six sexual assaults. In some cases, the victims related particularities in the rapist's language. Tommouhi's Spanish is precarious.
The fact of the resemblance is key: the criminal proceedings against Tommouhi were based on the eye recognition of some of the victims of those rapes, without taking into account that his photograph had been circulated by the media and that coincided in a judicial building with one of these. Tommouhi and García Carbonell are remarkably similar. They don't know each other.
The sentence annulled yesterday by the Supreme Court was based on the victim's eyewitness account, proof of charge that the Tommouhi case calls into question in a generic way: "In my opinion, we should not suppress the eyewitness account, but I think it would be necessary to weigh more precisely the importance given to this type of test. I am convinced that there are innocent people in prison wondering what they are doing there, knowing their innocence, and knowing that they have been accused in a wrongful recognition. We have to puncture this soufflé that law approaches an ontological truth. I think it is very important to eliminate the idea of the infallibility of justice, we need to break this dogma, because law is administered, but not justice", reflected yesterday, at the request of La Vanguardia, lawyer and doctor of law Marc mills
It is 1991, and Catalonia is suffering a wave of brutal violations, all with a similar modus operandi. Two men in a car look for potential victims in remote places, where they approach them, where they gag their companions (if any) and rape them, first one and then the other. A judicial source who worked at the time explains that in a few months 17 cases were counted in similar circumstances. Most of which did not go to court, basically because the victims gave up, or lacked evidence, and the wave was reduced to five or six cases.
One of these cases happened in Tarragona, where the pair of rapists approached a group of 14 or 15-year-old teenagers, boys and girls, in a vehicle. They were armed and sexually assaulted two of the girls. Another case was in La Secuita, where they approached a couple in a car and raped the 21-year-old girl after beating the boy down.
In Esplugues de Llobregat, they forced two 14-year-old girls who were waiting for a bus to get into their car, took them to a lot and sexually assaulted them. The social alarm was enormous. It was urgent to find the culprits. How did you get to Tommouhi and Mounib?
At the trial for one of the rapes, a police sub-inspector explained that one night he was on duty and received a note warning of the wave of rapes suffered by several Catalan towns. While he had that note in his left hand, another one came to him, which he had in his right, from the register of guests of hotels and boarding houses, and he fixed on the identity of a man who had just stayed in a pension in Terrassa, where there had been a sexual assault of that type. He was a Moroccan: Ahmed Tommouhi. As if nothing, the agent organized a device for the arrest of that man, who was then 40 years old and a construction worker. When, after a few hours, he was taken to testify in court, he passed in front of the girls who had reported a rape. At that time, there was no separate access for victims and alleged aggressors in those court offices.
Tommouhi was charged along with his compatriot Abderrazak Mounib, whom he always denied knowing. Mounib suffered from testicular atrophy which - his defense claimed at the time - prevented him from having sex. For his part, Tommouhi always denied that he knew how to drive, an essential skill in the modus operandi of those rapists, but it was always a difficult point to prove in a trial.
In total, they were involved in five legal proceedings. In two of which (occurred in Tarragona and Terrassa) the scientific police could not obtain biological remains of the aggressor. A fifth case resulted in the acquittal of Tommouhi and Mounib, precisely because the victims not only did not recognize them, but claimed that, although they looked reasonably similar, they were not the culprits. The different cases imposed dozens of years in prison on Tommouhi and Mounib, despite the fact that the legislation left the maximum sentence at 30, which was 15 with the redemptions in force at the time.
The victim on whom García Carbonell left remains, and who initially recognized Tommouhi, admitted years later in an interview with El País that he had made a mistake, and asked Tommouhi for forgiveness. Mounib was already dead. His testimony, and that of journalist Braulio García Jaén, who published an extensive investigation into the case, were key in the Supreme Court's decision.
In theory, Tommouhi could now consider seeking financial compensation for the time he has wrongfully spent in prison, although he already received compensation in 2001 when his conviction was overturned after it was discovered authorship of García Carbonell in one of the cases attributed to him.
"This case opens up an unprecedented perspective", explains a lawyer from Barcelona, "because the time in prison is the same, but the mistakes are two: will the State have to pay again? The error exists". Tommouhi collected that time around 108,500 euros, a third of which went to pay his lawyers.
"I no longer have a life or anything", the victim explained to this newspaper, "I live with my brother and he supports me, I have never been able to work again since I left prison". Tommouhi has 4 children. His wife and daughter, whom he has not seen for thirty years, live in Nador, Morocco, where he was born, he does not know exactly what day. It was 1951, "but Franco ruled and that was not taken care of, I don't have a birthday". Since he was released from prison, he has also lived with his son Khalid, who was 11 years old when he first went to prison in 1991. "I'm just angry with the judges, they've destroyed my life." added.
"From my perspective, the appearance in the press of the image of a defendant should invalidate the eye recognition test", explains a criminal lawyer from Barcelona, "but they are a useful and reliable method for the police if there is no contamination .
Fellow criminalist David Aineto opines that "the recognition wheel is established in the Criminal Procedure Law, it is a useful and legally established tool, but in my opinion more for the investigation process than for the establishment of conviction . It is not an objective test by itself. From my point of view, it should be a test of support". A professor of criminal law who prefers to remain anonymous places a mirror: "There is a small coincidence that that man was Arab, possibly racial bias played a role here. Would justice have acted in the same way, without the social pressure of those times, if the accused had been, for example, any middle-class professional from the Eixample?”
