Why is Daniel Alves arrested and Robinho not? Understand

Daniel Alves He has been held in custody without the right to bail since last Friday (20) for allegedly raping a 23-year-old woman at a nightclub in Barcelona, ​​Spain. The right-back was arrested after giving testimony and denies all accusations.

In the last year, another case of sexual crime reverberated in the Brazilian scenario. Robinhoa former player for Santos, Real Madrid, Manchester City, Milan and the Brazilian national team, was ultimately convicted by the Italian court for the collective rape committed in 2013 against an Albanian woman, aged 22 at the time, in a nightclub in Milan. He was given a nine-year sentence, but has yet to serve his sentence.

Both were accused of a sexual crime, but only Daniel Alves was arrested, albeit preventively. In short, Robinho remains free because he moved to Brazil before being condemned by the Italian court. In this way, he benefits from Brazilian law, which does not allow Brazilians to be extradited.

“From the material point of view, the cases of Robinho and Daniel Alves are quite similar, since, in relation to the two, there are accusations of rape or any form of sexual harassment without the consent of the victim”, explains Acacio Miranda da Silva Filho, specialist in Constitutional and Criminal Law, Master in International Criminal Law from the University of Granada, Spain.

Daniel Alves was arrested after giving testimony in Spain, subject to the laws of the country. In addition, the right-back has dual nationality – Spanish and Brazilian. If he traveled to Brazil, there would be no way to extradite him to Spain, similar to Robinho’s situation. If convicted, the side can serve his sentence in the country, without the need to be extradited.

According to Spanish legislation, an accused can be arrested before his trial in three situations: risk of fleeing, from the country or from any territory in which the accused can be tried; alteration of evidence; and victim protection. In the decision of Judge Maria Concepción Canton Martín, who decreed the player’s preventive detention on Friday, the risk of flight was pointed out, since the athlete no longer lives in Spain and has the financial resources to leave the country at any time. Furthermore, Spain does not have an extradition agreement with Brazil.

NEW SPANISH CRIMINAL CODE AND PREVENTIVE DEPRINT

In October 2022, Spain’s Penal Code was amended with the addition of a new law, which provides that sexual crimes must be typified according to the victim’s consent. Called “Only yes is yes”, she began to consider that all non-consensual sexual acts are now considered violence

Matheus Falivene, PhD and Master in Criminal Law from the Faculty of Law of the University of São Paulo (USP), explains that the new law implies that the burden of proof, with regard to consent, rests with the accused. “This law ends up reversing a logic of criminal proceedings in which the burden of proof would be on the accuser. In cases of these crimes against sexual dignity, the man would have to prove unequivocally that there was consent”, he says.

The Penal Code of Spain considers sexual aggression to be “acts of a sexual nature that are carried out using violence, intimidation or abuse of a situation of superiority or vulnerability of the victim”. In the case of Daniel Alves, he can be sentenced from one to 15 years in prison and the Brazilian Justice cannot interfere, since Spain is sovereign in the case.

In addition to the possibility of escape, Daniel Alves’ preventive detention was decreed because of contradictions in his testimony in the Spanish court. According to information from the Spanish newspaper El Periódico, this situation gave more strength to the allegations of the complainant, mainly associated with the exams and evidence collected on the spot, including semen found in the VIP bathroom of the nightclub. Daniel Alves would have locked, assaulted and raped the woman at the scene.

One of these contradictions in his speech was the presence of a tattoo. According to the newspaper The world, the victim described that the player would have a half-moon tattooed between his abdomen and private parts, which could only be seen if he was without clothes. In Spain, preventive detention can last up to four years, until the case is judged in full. At the moment, the process is in the evidence collection part and there is no date foreseen for a definitive result.

ROBINHO CASE

In the case of Robinho, the Italian Justice requested the extradition of the player and his friend Ricardo Falco – both convicted of rape – in October 2022, almost nine months after the confirmation of the player’s sentence by the country’s Supreme Court. The request was denied by Brazil, but Flávio Dino (PSB), the current Minister of Justice, said last week that Robinho could serve time in his country.

“The definitive examination is up to legal issues, they are not political issues. The Brazilian Constitution itself prohibits the extradition of Brazilian citizens. Dino said. According to the minister, the case has not yet reached his hands.

For Robinho to serve his nine-year sentence in Brazil, this decision must be ratified by the Federal Supreme Court (STF). “This relationship, between Brazil and Italy, would go through intermediation by the Itamaraty”, explains José Beraldo, a criminal lawyer. “Even so, the case would follow the same regime of progression of sentence in Italy, starting with the closed regime.”

Robinho has been, since the last year, on the red list of the International Criminal Police Organization (Interpol), in which he lost his legal protection, conferred by the Brazilian Constitution, if he leaves the country. The player and his friend were convicted on the basis of article “609 bis” of the Italian penal code, which refers to the act of non-consensual sexual violence forced by two or more people, forcing someone to have sexual intercourse due to their condition of “physical or psychic”.