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The judgments of the Supreme Court for the 'law of only yes is yes' frustrate the Government's plan for the high court to put an end to the sentence reductions


The court has reduced the punishment to half a dozen sexual offenders in application of the new legislation

In the first days after the entry into force of the comprehensive law on sexual freedom, known as

the law of only yes is yes

, the Government entrusted to the Supreme Court the correction of what it considered an undesired effect of the new norm: a trickle of reductions in sentences for aggressors convicted under the previous legislation.

The Executive was confident that the high court would put a stop to these reductions in punishment and urge judges throughout Spain to maintain the sentence imposed with the old law if it fell within the range provided for that crime in the new norm, in line with as established by the Prosecutor's Office.

However, two months after the first cases became known, the high court has already ruled six times on cases of this type and has endorsed the thesis contrary to that of the Government: reduce the sentences whenever possible, although analyzing case by case.

The Criminal Chamber has ruled out issuing rigid doctrines for the revisions of sentences derived from the law of the only yes is yes, but its sentences in recent weeks have been creating a jurisprudence that marks the way for judges throughout Spain on how to address these cases .

There are already almost 200 convicts whose punishment has been reduced in application of the legal change, of which at least 14 have been released.

The six pronouncements issued so far by the high court cover different crimes affected by the legal reform and have been drafted by different judges, but the conclusion they have reached is always the same: article 2.2 of the Penal Code establishes that they will have retroactive effect. those penal laws that favor the accused,

The first intervention of the Supreme Court after the penal reform was on the

Arandina case

, for which two former soccer players from that soccer team had been sentenced for forcing a 15-year-old girl in November 2017. The courtroom estimated the resources of the prosecutor and the accusations so that their punishment would be increased, but he imposed nine years in prison, one year less than what would have corresponded to them before the legal reform.

In its resolution, the court warned that "accommodating" the penalty to the new law is "mandatory" in application of the retroactivity of the most favorable criminal law for the accused.

This sentence already established some bases that have been consolidated in subsequent resolutions, such as the one notified on December 15 in which the Criminal Chamber reduced by half (from nine to four and a half years) the sentence of sexual abuse imposed on a man for groping four minors and another young woman of legal age.

The Provincial Court of Álava had imposed nine years on him, the minimum sentence then provided for the crimes of which he was accused.

The sentence made explicit that the defendant should be imposed the minimum penalty for "the insignificance" of the touching.

But in the

law of only yes is yes

, the new crime of sexual abuse of a minor includes a provision that did not exist before and that allows, in less serious cases, to reduce the sentence by one degree and that is what the high court applied court.

similar conclusion

The Supreme Court reached a similar conclusion in the case of a man convicted of sexually assaulting a minor under 16 years of age.

The Provincial Court of Almería and the Superior Court of Justice of Almería sentenced her to 12 years in prison for the crime of rape, which was the legal minimum sentence provided for that crime in the previous law.

But the Criminal Chamber explains in the sentence that the proven facts now fit "without room for discussion" in the new article on sexual assault, punishable with a sentence ranging between 10 and 15 years.

Although the 12 years of the initial sentence are within that range, the magistrates warn that in the first sentence all the parties ruled out that there were reasons that justified a sentence greater than the legal minimum.

This is one of the cases that generates the greatest discrepancy between the courts and between the Prosecutor's Office and the judges.

The Supreme Court underpins this thesis in its latest resolution, notified last Friday, in which it lowers the sentence imposed on a man for a continued crime of sexual assault on his 8-year-old niece from 13 and a half years to 12 and a half years in prison in the Line of Conception (Cádiz).

Before the reform, the penalty for sexual assault on a minor was between 12 and 15 years and now it has been reduced to between 10 and 15 years.

In the revised case, it was a continuous crime, so the penalty must be imposed in the upper half, which before the new regulation was 13 years and 6 months to 15 years and now is between 12 years and 6 months and 15 years.

The court admits that it is true that when the sentence imposed is also possible in the new norm, this, as a general rule, would not be modified, but the court warns that this reading is not valid when the first sentence imposed the minimum possible sentence for that assumption. .

"In these cases, the downward revision of the sentence will be necessary when, in the minimum of the lower or upper half of the sentence under the old law and the current one, that of the new law is less," warns the court.

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Source: elparis

All news articles on 2023-01-19

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