The Civil and Criminal Chamber of the Superior Court of Justice of Andalusia (TSJA) has fully confirmed the judgment of the Provincial Court of Huelva which, after the guilty verdict issued by a popular jury, sentenced the man popularly known as the halloween decapitatorthe male accused of murdering a man of whom he was a friend since childhood in a house in the Huelva capital in October 2020, after which, once he died, he cut off his head and he traveled through several streets of Huelva with said head in a plastic bag.
In the judgment, the TSJA dismisses the appeals filed by the defendant’s defense and the private prosecution filed by the victim’s family against the judgment of the Huelva Court, which sentenced the defendant to 21 years in prison for the crime of murder and 5 months in jail for a crime of desecration of a corpse, while, as civil liability, he was sentenced to indemnify a total of 205,000 euros to the five brothers and a niece of the deceased for the moral damage caused. Likewise, the Court of Huelva acquitted him of crimes against physical and moral integrity and robbery with violence for which he was also tried.
In the trial, the Prosecutor’s Office requested 24 years in prison for the defendant for the crime of murder and 5 months in prison for the crime of desecration of a corpse, while the private prosecution claimed 25 years for the first crime; 5 months in prison for the second; five years in prison for a crime of robbery and another two years in prison for a crime against physical and moral integrity.
The TSJA, in this judgment dated April 20 and against which an appeal for cassation may be filed before the Supreme Court, first addresses the appeal filed by the defendant’s defense, which “should have been inadmissible for processing due to its nature absolutely deficient”, since “it does not specify what claim it wants to assert before the Chamber (if the revocation of the sentence or its annulment, since it only requests that it be considered admitted and that it be transferred to the other parties for its summons before this Chamber) ), nor does it offer any argument referring specifically to this case.”
The defendant “has been left without an effective defense in this second instance”
In this way, and according to the magistrates, the defense appeal is limited to “transcribing abstract doctrinal and jurisprudential considerations on the presumption of innocence and on the error in the evaluation of the evidence, but without offering any argument of censorship.” against the judgment appealed. “In other words, the defendant has been left without effective defense in this second instance, despite the efforts in the act of the hearing of the lawyer who, ex officio, was appointed for said procedural act, who could do nothing to correct the aforementioned deficiencies ”, he emphasizes.
The TSJA adds that “the mere invocation in the label of the first reason of the “absence of animus necandi” and of the “lack of application of the mitigating and exemptions contained in articles 20.1, 20.2, 21.2 and 21.3 of the Penal Code” does not offers the Chamber possibilities to review the sentence, given the aforementioned lack of reference to specific evidence”, to which is added that said reason is articulated under section b) of article 846 bis c) of the Law on Criminal Prosecution, “which by its nature supposes starting as a premise from the account of proven facts, which prevents at all points from deleting from it the” intention to cause death “(second paragraph of the first fact) or adding exonerating or mitigating circumstances that would lack of support in said list of proven facts.”
“The appreciation of the animus necandi and the non-consideration of the concurrence of extenuating or exempting circumstances are very reasonably based on the sentence, without the Chamber being able or should “imagine” what arguments could hypothetically have founded a revocation”, asserts the TSJA, which then analyzes the appeal filed by the private prosecution exercised by the family of the deceased.
In this sense, the victim’s family first alleged infringement of the law due to the non-application of the aggravating circumstance of breach of trust, a reason that the TSJA dismisses because, in this specific case, “the appreciation of the concurrence is not compatible of treachery with that of breach of trust”, since, “even though in singular cases it has been considered admissible to add such a generic aggravating circumstance to the treachery, this is not possible when the treacherous modality appreciated is, as in this case, the surprise or unexpected, since the breach of trust could only be a factor that contributed to the defenselessness of the victim due to the unexpected nature of the attack”.
Rejects the aggravating circumstance of breach of trust requested by the victim’s family
Apart from this, “there is no evidence in the account of the proven facts that the defendant had made the decision to kill his friend before accessing his home, so there can be no talk of taking advantage of the relationship of trust to obtain the occasion to attack him”, argues the TSJA, which considers that “the greatest reproach that killing a friend deserves is not enough to integrate the aggravating circumstance of breach of trust, without prejudice to being able to consider it in the individualization of the sentence, as expressly stated does, rightly, in the judgment appealed”.
The private prosecution also appealed against the acquittal of the defendant for the crime against the moral integrity of the victim’s closest relatives, a crime that, according to this prosecution, is based not on the fact of killing the victim, but on slitting the throat of the victim. corpse and exhibit the head to several people to finally throw it into a container.
Faced with this, the Civil and Criminal Chamber points out that “such behavior integrates the crime of desecration of a corpse, and this is no longer discussed in this instance,” adding that “it is something that is not debatable, as obvious,” that the behavior of the defendant who has been described as “increased the pain of his next of kin”, and thus “has been considered by the appealed judgment to considerably increase the amount of compensation for non-material damage for the suffering caused by the desecration of the corpse”.
However, “the elements of the type of article 173 of the Penal Code do not concur”, since “there is no record, nor has it been declared proven, the intention of the defendant to morally attack the dignity of the next of kin, whom it is not even certain that knew or dealt with, and to whom he did not carry out the described conduct”, so that “if there was an intention to morally degrade it, it would have been the victim, and the damage to his next of kin is a reflection”.
“If the thesis of the private prosecution is followed, there would be no case in which, by committing a crime of desecration of a corpse, the crime against the moral integrity of the relatives of the deceased was not also being committed,” stresses the TSJA, which concludes by stating that “In short, there is no vexation against the next of kin, but desecration of the corpse with the consequent non-pecuniary damage to them, which has been taken into account to establish the compensation.”
The facts
In its verdict, the jury considered it proven that, at unspecified hours on the afternoon of October 29, 2020, the convicted person went to the victim’s home, so that, between 10:00 p.m. that day and 8:00 a.m., 00 hours the following day, and while the deceased was in the kitchen crouching in front of the refrigerator, the defendant, who was behind him, “with the intention of causing his death, grabbed with both hands a metal skeleton of a heater of approximately 1. 1 kilo of weight that was on the kitchen floor, lifted it up and hit it” at least twice on the head.
The assaulted man suffered various injuries and died almost immediately in that time slot, according to the jury’s verdict, which also saw evidence that, after the victim died, the convicted person moved his body to the back room of the house wrapped in a blanket. curtain and completely severed his head using a knife with a 20-centimeter blade.
After carrying out these events, the defendant left the house taking the keys to the house, to which he returned between 5:00 and 9:00 on October 30. Once there, he consumed an undetermined amount of beer and toxic drugs, narcotics or psychotropic substances, cleaned the kitchen and bathroom, “trying to eliminate any traces or vestiges that could implicate him in the death” of his friend, and formed a bundle with the skeleton of the heater that he used to end his life, the knife that he used to decapitate him, and several blood-stained objects. Next, the convicted person put the deceased’s head in a plastic bag and went to a certain square in Huelva, where he left the bag with the victim’s head between the branches of a tree and sat on the bench closest to the tree. , going home minutes later and leaving the bag on the tree.
According to the jury’s verdict, around 9:00 a.m. on October 31, 2020, the defendant went out for a walk with his dogs and verified on said walk that the head of the deceased was still in the tree, returning home again, where he consumed an undetermined amount of drugs and alcohol, returning to the plaza around 3:00 p.m. that same day. Once there, he picked up the bag with his head and went with it to some containers in the square, placing it on the ground while trying to burn a series of clothes and objects that could incriminate him in the death of his friend.
At that time, a woman who was passing through the area approached the condemned man and asked him what he was carrying in his bag, to which the defendant replied “come and look at it yourself” and “with this I am going to make myself an ashtray”, all while he showed her head. At first, this woman did not believe that her head was human, since the date coincided with the celebration of Halloween, and she thought it was a joke. The defendant showed his head to other people and, when word spread through the square that a man was carrying a human head in a bag, he fled through different streets of the Huelva capital, being followed in his flight by two people who managed to record him with a mobile phone and inform the Police that he had taken refuge in his home. In fleeing from him, the defendant threw the bag with the victim’s head next to a garbage container.
The jury also found it proven that, by inflicting the injuries that ultimately caused his death, the defendant took advantage of the fact that the deceased was with his back to him and crouched, using a notably forceful object to hit him on the head, which, impacting in such an area, it was likely to cause serious damage to the victim, managing to commit these acts in a way that effectively prevented any effective defensive reaction on the part of the victim. In addition, the members of the jury considered the circumstance of the victim’s lack of foresight that he could be attacked as proven, given the friendly relationship between the two.
