The Supreme Court has already notified the sentence with the legal arguments that led it to aggravate the sentences of two of the former Arandina soccer players convicted of forcing a 15-year-old adolescent in November 2017. The Criminal Chamber has estimated the resources of the prosecutor and the accusations to increase the punishment of the two convicted, but it has imposed nine years in prison, a sentence one year less than the one that would have corresponded before the reform of the Law of Comprehensive Guarantee of Sexual Freedom, the known as
the law of only yes is yes,
and in its resolution it warns that "accommodating" the penalty to the new law is "obligatory" because the criminal law that is most favorable to the accused is retroactively applied.
"The penalty now imposed is the result of adjusting the proportionality of the guilt to the taxable penalty," says the room.
The ruling in the
is the first handed down by the high court affected by the law on sexual freedom, which has resulted in dozens of sentence reductions for aggressors who were convicted under the previous legislation.
The pronouncement of the Supreme Court was expected as an opportunity to unify criteria to end the discrepancy of interpretations between the Prosecutor's Office and various provincial courts.
But the Criminal Chamber, for now, rules out setting a rigid doctrine and limits itself to pointing out that the new law must be applied to the benefit of the convicted person when it sets a lower sentence than that which would correspond to the old one, but always analyzing it on a case-by-case basis and not generally.
The review that the Supreme Court has made of the
It is not a review of the sentence with a final conviction like the ones being carried out by the provincial courts, but rather the response to the appeal of cassation on the sentence handed down by the Superior Court of Justice of Castilla y León, which imposed three and four years in prison on the two ex-footballers.
However, in the sentence released this Wednesday, the court points out that the process of reviewing sentences opened after the entry into force of the new law covers not only those that are in the execution phase, but also those that they are in the sentencing phase, either awaiting the first resolution after the trial is held or after the imposition of resources, as has been the case in this case.
In all these situations, the magistrates add, the court must assess "whether the sentence to be imposed could be more beneficial."
The Supreme Court's interpretation deviates from the criteria of the Prosecutor's Office, which rejected sentence reductions "as a general rule" as long as the punishment imposed with the previous law continues to be possible with the new one.
The magistrates of the high court support the reading that the majority of the courts are making of article 2.2 of the Penal Code (“those criminal laws that favor the accused will have retroactive effect, even if when they came into force a final sentence had passed and the subject was serving a sentence ”), but they urge to study each case individually.
, three footballers from this club were tried (Carlos Cuadrado,
, 24 years old; Víctor Rodríguez,
, 22, and Raúl Calvo, 19) who in November 2017 invited a 15-year-old teenager to their home in Aranda de Duero (Burgos) to have sex with her.
Once there, she refused and they forced her.
The Burgos Provincial Court initially sentenced the three former players to 38 years in prison, but the Superior Court of Justice of Castilla y León acquitted one of them and reduced the punishment of the other two to four and three years in prison by changing the classification of aggression to abuse and by "the closeness of age and closeness in the degree of maturity" of the athletes and the minor (the Penal Code raised the age of sexual consent from 13 to 16 years in 2015).
The Prosecutor's Office appealed that sentence to the Supreme Court and before the new law came into force it had requested 10 years in prison for the two footballers convicted by the autonomous court, a request that it maintained with the new norm.
Following the criteria set by the State Attorney General, Álvaro García Ortiz, the public ministry considers that the sentences should not be lowered because they fell within the range provided for in the
law of only yes is yes
for these crimes.
In the event that the appeal is upheld, the facts, according to the Prosecutor's Office, should be punished with between six and 12 years in prison, so the 10-year sentence that was requested for them falls within that range.
And if the Supreme Court dismissed the appeal, the Prosecutor's Office demanded that the punishments imposed by the autonomous court be maintained, which also fell within the section provided by the
law of only yes is yes
(between two years and three months and four years and medium).
nine years and one day
The court has upheld the appeal and has suppressed the mitigation applied by the regional court, based on the closeness in age between the aggressors and the victim and the degree of maturity of the latter, and which implied a sharp reduction in sentence.
However, the Criminal Chamber does not agree to the 10 years requested by the Prosecutor's Office, but leaves the punishment at nine years and one day.
The request of the public prosecutor was the minimum penalty provided for in the previous Penal Code for the section applicable to the two accused (from 10 to 12 years, the upper range of the penalty provided for in the old article 183 4b).
law of only yes is yes
extends this range to between 9 and 12 years and the Supreme Court has applied
the new minimum expected to the
Arandina case .
Judge Ángel Luis Hurtado has voted against the majority decision of the chamber, who understands that the mitigation that the Superior Court of Justice had already applied should have been maintained, with a slight reduction in sentences, considering the new norm to be more beneficial as well.
The Minister of Defense, Margarita Robles, has come out this Wednesday in defense of the judges in the face of criticism from her colleague from Gabiente, the Minister of Equality, Irene Montero, who assured
the law of the only yes it is if it
is well drafted and attributed the massive reduction of sentences for sexual offenders to the machismo of the magistracy.
"If there is a ruling, it is from the law and not from the judges", emphasized the minister, who recalled that the courts do not make laws but merely apply them and has presented them as "bulwarks of the rule of law" .
Robles, a magistrate by profession, has pronounced these words in the Senate, during the delivery of the Montero Ríos and Iurisgama awards, before an audience belonging mostly to the judicial world, reports