The General Council of the Judiciary (CGPJ) has already recorded more than 700 reductions in sentences for sexual offenders in application of the
law of only yes is yes
, but only a dozen of them, those issued by the Supreme Court, are, in principle, firm.
The rest can be appealed before the superior courts of justice or before the high court itself and the Prosecutor's Office is challenging most of these resolutions, according to sources from the public ministry.
The General Prosecutor's Office does not have specific data because not all provincial and regional prosecutor's offices are reporting their resources, but sources from this body assure that "hundreds" of challenges have already been filed.
In Madrid alone, 62 revisions of the sentence issued by the Provincial Court have been appealed, according to the data provided this Wednesday to EL PAÍS by the public ministry.
The trickle of sentence reductions derived from the law on sexual freedom has not stopped since the reform of the Penal Code came into force on October 7.
The judges and prosecutors consulted anticipate that these reductions will continue to take place in the coming months because many of the final sentences handed down with the previous law on crimes whose sentence has been reduced in the sexual freedom law still have to be reviewed.
Although judges and prosecutors share their criteria in some cases —for or against sentence reductions—, the interpretations of one and the other differ in many cases from the beginning of the process.
Thus, while most courts, including the Supreme Court, are betting on reducing the punishment whenever the
law of only yes is yes
allow it, the attorney general, Álvaro García Ortiz, ordered to oppose the reduction when the penalty imposed in the sentence was also susceptible to be imposed with the new law.
The provisional count of the Council of the Judiciary shows more than 700 reductions in sentences for the law of only yes is yes
This is the criterion that is leading the Prosecutor's Office to challenge most of the reductions issued so far, say sources from the public ministry.
In the case of Madrid, where up to this Wednesday 62 revisions of sentences had already been appealed, the sources consulted indicate that most of the reductions in sentences have been challenged because the judges reduce the punishment imposed in the first instance despite the fact that that sentence continues within the range provided for by the new law for that crime.
One of the most common cases of discrepancy between the courts and the Prosecutor's Office occurs in those cases in which the aggressor had been sentenced to the minimum sentence provided for in the previous legislation, but the law of only yes is yes has reduced that minimum
. and the judges have chosen to reduce the punishment to impose the new legal minimum.
In these cases, the Prosecutor's Office is appealing the reduction, unless the first sentence expressly motivated that the least possible punishment had to be imposed, due, for example, to the insignificance of the facts.
But if, as in many other cases, the court limited itself to setting the minimum punishment without including a reinforced motivation, the Prosecutor's Office is betting on fighting against this reduction and appealing it, according to sources from the Madrid public ministry.
Among the appeals presented by the Prosecutor's Office there is also another habitual casuistry that does not refer to the reduction of the sentence, but to another provision incorporated by the
law of only yes is yes
and that has not been taken into account by many courts: the obligation to withdraw parental authority from sexual offenders of minors, an accessory penalty contained in article 192 of the new Penal Code, but which many judges have ignored in their first resolutions.
The Madrid prosecutors, for example, are systematically appealing these cases and, although these appeals have not yet been resolved, there are courts that did not apply this sentence in their first sentences and have subsequently begun to do so.
Most of the appeals filed by the public prosecutor's office refer to revisions of sentences handed down by the provincial courts.
Those that refer to cases tried before 2015 go directly to the Supreme Court, since the law did not provide then for the possibility of appealing the sentences handed down in the first instance by the provincial courts.
A legal reform established that year a double criminal instance, which implies that the revisions of sentences after that date are challenged on appeal (before the superior courts of justice) before reaching the Supreme Court.
In the case of Madrid, the Prosecutor's Office has presented this week the first appeal before the TSJ against a reduction in sentence issued by the Provincial Court.
Apart from the hundreds of appeals against the revisions of sentences, the public ministry is also challenging some sentence reductions applied by the courts in processes that are still alive because they do not yet have a final sentence.
In these cases, the reduction is issued when resolving the prosecution or defense appeal against the sentence that convicted the aggressor.
That first sentence was handed down with the old Penal Code, but since the law of only yes is yes
has entered into force
Before the sentence is final, the courts are having to adapt the sentences to the new norm.
All the reductions issued so far by the Supreme Court refer to these cases, where no appeal has yet been made regarding revisions of final sentences, but which had dozens of appeals on the table on convictions of sexual offenders pending resolution.
Many similar cases are also reaching the higher autonomous courts and, in some cases, the Prosecutor's Office is appealing the decision adopted by the judges.
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