Judges and courts will be conditioned by the letter of the sentence when they have to review sentences
MADRID, 18 Nov. (EUROPA PRESS) –
The so-called ‘law of only yes is yes’ has meant the virtual disappearance of the crime of sexual abuse to integrate it into that of sexual assault, which has led to a collapse in sentences that is forcing the review of firm sentences but that will also impact on the sentences appealed, a path that leads to the Supreme Court (TS), although when applying the new law it will have limited room for maneuver because it will have to stick to the specific case.
The legal sources consulted by Europa Press explain that Organic Law 10/2022 on the Comprehensive Guarantee of Sexual Freedom has caused the crime of sexual assault to absorb that of sexual abuse, which means that a crime that until now included a more serious conduct incorporate a less serious one, so the criminal range has also been expanded to cover the entire range of behaviors now punishable as sexual assault.
This implies that those already convicted could benefit from a lower lower limit in the criminal range, which has led to the fact that both ex officio and at the request of the defense judges and courts have begun to review the final sentences (those that are no longer may appeal) because the Penal Code (CP) imposes in its article 2.2 that the law most favorable to the accused should always be applied.
In these appeals against firm convictions, the sources warn that the judges are conditioned by the sentence, because since it is already closed, they cannot discuss the facts that the sentencing court considered proven and those that were not, nor question the criminal assessment that it made of them. .
The sources emphasize that in cases in which the court has expressly said in the sentence that it sentenced for the minimum sentence because it believes that it is just punishment, the judges who have to review these sentences will have practically no room for maneuver. “It will be mathematics,” they illustrate, adding that the operation consists of replacing what was previously the lowest penalty with the new lower limit.
Outside of these cases, that is, when the ruling does not bind them to the lower sentence, the sources indicate that the judges will be able to modulate the sentences that they must review, although always conditioned by the final sentence.
In this sense, they recall that the fifth transitory provision introduced in the 1995 penal reform establishes that “said judges or courts will proceed to review final sentences and those in which the offender is actually serving the sentence, applying the most favorable provision considered exhaustively and not by the exercise of judicial discretion”.
And that “in custodial sentences, this CP will not be considered more favorable when the duration of the previous sentence imposed on the act with its circumstances is also taxable under the new CP”.
The ‘law of only yes is yes’ will also impact sentences that are not final and are under appeal, either on appeal or in cassation before the Supreme Court, which will push these courts to study the effects of the new law on the rulings confirming or modifying these sentences.
The sources emphasize that the specific case will have to be analyzed again, because although they are not final sentences, the court cannot carry out a new trial or disrupt the account of proven facts. The interpretation will go hand in hand with the casuistry, summary.
It is expected that the Criminal Chamber of the TS will rule in less than a month on the new law for the appeals that it has pending, including that of a 53-year-old man who was sentenced to 12 years in prison by the Court Provincial of the Balearic Islands for a sexual assault on his underage niece in 2014 in Mallorca. The defense has asked the Second Chamber to reduce the sentence for the ‘only yes is yes’.
In addition, on November 29, the Second Chamber will study the appeals of the ‘Arandina case’. The Supreme Court has addressed the Prosecutor’s Office, the other accusations and the defenses of the former players convicted of crimes of sexual assault, so that they can rule on whether they consider that the ‘only yes is yes’ law can affect the sentence.
