The convicted person, who was on probation, has already served this new sentence, but has another pending requisition
The Vizcaya Provincial Court has reduced the sentence of a sexual offender from four and a half years to three years after reviewing the sentence in application of the ‘only yes is yes’ Law. The convicted person, who was on probation, has already served this new sentence, but has another pending requisition, so it will be the Prison Surveillance judge who decides on his new situation.
In this way, this judicial body has resolved the first request for review of the sentence that has been requested after the Law on the Comprehensive Guarantee of Sexual Freedom entered into force. The First Section of the Biscay Court has proceeded to review it against the opinion of the legal representation of the victim, who has recalled “the seriousness” of the facts given “the aggressiveness” used by the convicted person against her, and also of the Prosecutor’s Office that it has argued that the prisoner was on probation and the review of his sentence was not appropriate.
The lawyer for the convicted person requested on November 18 the review of the sentence handed down by the Vizcaya Court on June 10, 2019 and declared firm by order of July 24 of that same year. For its part, the procedural representation of the victim opposed the requested review given the “seriousness” of the crime committed. In addition, it alleged that the Court considered at the time that the three-year sentence “was not appropriate to the seriousness of the facts, which is why it imposed it above that minimum limit”, and established it at four and a half years. prison.
Likewise, the Prosecutor’s Office maintained that the fifth transitory provision of Organic Law 10/1995 of November 23 of the Penal Code should be taken into account, and that, based on it, the review of sentences would not be applicable when the subject is in prison. probation, as was this case. In his opinion, the application of this transitory regime “is a consolidated interpretative criterion” that should guide the decision.
After analyzing the considerations of the parties, the Vizcaya Court points out that the Organic Law of 10/2022 on the Comprehensive Guarantee of Sexual Freedom “does not establish any regulations in relation to the review of final judgments, nor does it make any reference to the transitional regime applicable to the new standard.
In his opinion, it is “an undoubted fact” that the new regulation of crimes against sexual freedom introduces new sentence ranges into several of the precepts and a reduction of the minimum or maximum limits of the sentences to be imposed for various conducts against the sexual freedom.
For this reason, the Court understands that article 2.2 of the Criminal Code must be applied, which establishes the retroactivity of criminal laws that favor the accused. In this case, it recalls that the sentence imposed on the convicted person was set at a lower level than the penalty applicable to the crime of sexual assault provided for in articles 178 and 179 of the Penal Code, due to the appreciation of two mitigating circumstances (reparation for the damage and undue delays ), therefore, this reduction in one degree, placed the sentence in the range of between three and six years in prison.
However, within this range, the court considered that the established minimum of three years was not applicable, estimating that “the aggressiveness used in the action and the harsh situation suffered by the victim should be assessed in the specific determination of the penal response”.
For this reason, the sentence of four and a half years in prison was finally imposed “at an intermediate point of the taxable criminal range.” Now, in accordance with the new penal text, the minimum sentence for the crime of sexual assault with carnal access is four years (instead of six), which determines that the lower degree of the sentence (for the two extenuating circumstances) is situated between two and four years in prison.
As it did previously, the Biscay Court applies the same criteria for determining the sentence, taking into account “the aggressiveness of the action and the damage to the victim”, and establishes the sentence at “an intermediate point of the new criminal strip”.
In this way, the penalty of three years in prison is provided, as proposed by the defendant’s lawyer, instead of the four and a half previously established. Contrary to what was claimed by the legal representation of the victim, the court believes that the penalty imposed in the initial sentence cannot be imposed now because, with the current regulation, it starts from a criminal section that has a maximum limit of four years. .
“It is evident that this court did not impose the three-year sentence because it considered it inadequate within the penalty range provided for at that time. In accordance with the new penalty range introduced by this new Law, it is the penalty that proceeds based on the same criteria of seriousness taken into account at that time”, he clarifies.
The sentence also rejects the argument of the Public Prosecutor’s Office that the sentence is not reviewable, in this case, because the prisoner is on probation, since “there is no transitory provision in Organic Law 10/2022, of September 6, that prevents review of the sentence in this circumstance”. “This being so, the court considers that a transitory regulation corresponding to a different norm is not applicable extensively and against the prisoner,” he adds.
In this same sense, it recalls that the meeting of magistrates of the Provincial Court of Bizkaia, held on November 25, agreed that “the transitional provisions approved for a different regulation are not applicable to this law”.
CONDITIONAL FREEDOM
For all these reasons, the Provincial Court believes that the retroactivity of the most favorable law is also applicable in this situation of probation because, “even when serving the prison sentence is formally suspended according to article 90 of the Penal Code, the interested party His freedom continues to be affected to a greater or lesser extent in this final stretch of the custodial sentence that was imposed on him and he has served during the time that has been set.”
In this sense, it recalls that the Penitentiary Surveillance judge established various obligations “that either restrict his freedom of movement (he cannot leave the national territory) or oblige him to carry out certain activities”; all this “in a situation in which, if he had been tried with the new regulation, the sentence would already have been served and extinguished.”
The judicial resolution highlights that a suspension of the execution of the sentence has been set in August 2022, for two years, when the revised sentence would already have been served, since, according to the liquidation that works in this execution, the beginning of the sentence was calculated. of compliance on October 1, 2019, which means that the three years have expired on October 1, 2022.
The Provincial Court of Vizcaya also informs that the sexual offender has another pending execution, which has been merged with the one that has now been reviewed, and it must be the Penitentiary Surveillance judge who issues a new resolution on the situation of the prisoner, as agreed by the court.
This sentence can be appealed before the Civil and Criminal Chamber of the Superior Court of Justice of the Basque Country (TSJPV) within ten working days from its notification.
