Sexual abuse of the elderly woman admitted to a retirement home: conviction overturned

PADUA – It is the third section of the Court of Cassation which, with a decision taken in recent weeks, puts the judicial fate of Abdelkader Ben Messaoud, social health worker sentenced in first and second degree to 6 and a half years in prison for having abused, between July and August 2019, a ninety-year-old, guest of the Rsa “Parco del Sole” in Terranegra. A sentence that according to the Supreme Judges must be reviewed, starting from the trial before the Court of Appeal of Venice. The reason? The judges of Grimani palace they would not have listened to the witnesses proposed by the OSS defense – the criminal lawyers from Padua Federica Borrelli and Alessandro Baldina – and they would not even have assessed in depth what was underlined by the Tunisian’s lawyers, who had already underlined before the second instance court how the elderly victim could not be credible given the problems he suffered from.

THE FACT
Abdelkader Ben Messaoud ended up under investigation and then found guilty by the Collegiate Court of Padua for having abused an elderly guest. According to the indictment signed by prosecutor Giorgio Falcone, on the night of 23 August 2019 the ninety-year-old – at the time a guest of the Terranegra elderly residence and in the meantime dead for causes completely unrelated to this trial – had been washed and changed by ‘Tunisian attendant. At the first light of dawn on the same day, two health workers found the woman crying in the room of another guest: to the relatives called by the management of the facility, the ninety-year-old had told: «Last night the attendant changed me and then he raped me. Dazed, I took refuge in my friend’s room.” Accusations confirmed a few weeks later also before the judge for preliminary investigations during an evidentiary incident. Reconstructions that had brought the OSS to court, then also convicted in the second degree.

THE DEFENCE
And it is precisely on the conduct of the trial which took place in Venice that the lawyers Borrelli and Baldina built their appeal to the Supreme Court. In the appeal of the conviction before the Palazzaccio, the defense underlined how in the second instance the Court did not listen to the lawyers’ request to have two other colleagues of the accused testify “whose statements would have had a disruptive impact on the overall stability of the decision of conviction” nor did it delve into the clinical situation of the woman who, due to “significant cognitive impairment which never emerged during the investigation”, we read in the defence’s brief, would have made the old woman’s story unreliable. “In a nutshell – explain the two lawyers – it was highlighted that the Court of Appeal failed to address the defense’s complaints, limiting itself to drawing up a merely apparent, contradictory and illogical reasoning”. A position that the Ermellinis also underlined: without going into the merits of the matter (i.e. whether or not there was sexual violence), the Court of Cassation sent the documents back to the Appeal, also embracing what the first instance sentence itself underlined: throughout the trial “the voice of the accused was missing”.

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