García Ortiz insists that the general criterion is to maintain the old penalties when possible with the new law
MADRID, 9 Mar. (EUROPA PRESS) –
The State Attorney General, Álvaro García Ortiz, has advocated evaluating alternative measures, such as probation, in cases in which there are reductions in sentences due to the so-called ‘law of only yes is yes’, according to the draft of the circular sent to the Board of Chamber Prosecutors developing the criteria already established in November, according to which prosecutors must support maintaining the old sentences if they can be imposed under the new law.
Prosecutor sources explain that the objective is that the members of the Board of Prosecutors of the Chamber can study this draft with a view to the meeting scheduled for next March 16, where, among other issues, the preparation of a circular for the development of the given decree will be addressed. to know on November 21 about the law of comprehensive guarantee of sexual freedom.
In his proposal, to which Europa Press has had access, García Ortiz emphasizes that, when carrying out sentence reviews, “prosecutors will take into account all the applicable regulations in accordance with the current and the previous wording of the Penal Code”, applying “that version that is as a whole more favorable to the prisoner”.
It also reiterates that, “as a general rule, the review of final sentences will not proceed when the sentence imposed in the sentence is also likely to be imposed under the new legal framework.” However, he emphasizes that “each procedure must be analyzed individually, avoiding automatisms that prevent the specific circumstances in each case from being assessed.”
Thus, it states that, “exceptionally, when the strict application of this rule causes manifestly disproportionate results, it will be possible to promote the review of final judgments”, clarifying that “this possibility should be reserved for cases in which it is notorious that, if there were If the facts were prosecuted under the new regulation, the prison sentence that would have been imposed would undoubtedly be of a much shorter duration”.
It also stresses that, “traditionally, it has been accepted that, regardless of whether the maximum and minimum limits of the penalty established in a criminal offense are modified as a result of a reform, if the penalty imposed before the legislative amendment is also subject to If it is according to the new wording, there will be no place to review the conviction, since it will not be considered more favorable for the defendant”.
On this point, it defends that “the fact that Organic Law 10/2022, of September 6, does not contain provisions of the transitional regime that expressly incorporate this rule in no way alters the possibility of applying said criterion”, while recalls that “recently the legislator himself has been in charge of clearing up any doubts that may arise on this matter” in the explanatory statement of the reform on the crimes of sedition and embezzlement.
However, when the sentence is lowered due to the revisions carried out, it urges “to assess the imposition of the sentence of probation, the deprivation of parental authority or the special disqualification for the exercise of the rights of parental authority over the children present and future, guardianship, conservatorship, guardianship or foster care, as well as for employment or public office”.
Regarding the possibility of granting the benefit of the conditional suspension of the revised custodial sentence, García Ortiz indicates that the guidelines established in a 2015 circular will be followed, which specifies that “if a sentence is reviewed and if the new sentence imposed allows it and the previous one did not consent to it due to its duration, nothing prevents the benefits of the suspension of execution from being applied”.
The head of the Public Ministry points out that “similar criteria will be followed in relation to substitute expulsion”, “so that its review will also proceed when the sentence finally imposed is less than one year in prison.” In these cases, he points out that “prosecutors will opt for the execution in Spanish territory of the sentence imposed, unless the prisoner requests that the ruling on the expulsion be maintained.”
In addition, García Ortiz asks the prosecutors to prioritize “the examination of the procedures that, due to the effective review of the sentence, may lead to the release of the convicted person.”
It also calls for “singular attention” to “those cases in which the victims are in a situation of vulnerability, whether due to their age, disability or any other circumstance, as well as those in which remuneration has mediated or there is a relationship of verticality between victim and perpetrator that could restrict or annul the free will of their will”.
Likewise, the attorney general recalls that “against the resolutions resolving the review of the final convictions, the same appeals may be filed that, where appropriate, would be available against the conviction.”
In this regard, it emphasizes that “the review of final sentences will be rejected in accordance with the attenuated subtype of article 178.3 of the Penal Code (CP) in the cases of sentences imposed in accordance with the repealed 181.1 CP”, which punished those who “perform acts of a sexual nature with a minor under 16 years of age, will be punished with a prison sentence of 2 to 6 years”.
It also specifies that, “in general, as long as the prerequisites for this are met, that is, when the fact for which the person responsible for the crime was convicted falls within the limits of the criminality given the low offensiveness of the conduct, there are no reasons that prevent the review of convictions in application of the new attenuated modalities”.
On the other hand, García Ortiz refers to “proceedings for acts not prosecuted that had been committed prior to the entry into force of the criminal reform” to establish that “the discretion that both legislation allows will fully operate, and must be taken into account account all the circumstances that may influence both the determination of the sentence and its execution”.
“Consequently, in these cases, the determination of the most favorable penal norm must be made on a case-by-case basis, without it being possible to select from each legislative body the specific precepts that in isolation favor the person responsible for the crime,” he adds.
García Ortiz highlights that “the new regulation of the crime of sexual assault, far from gravitating around the concepts of violence, intimidation or abuse of superiority, is built on the concept of consent, which appears as the true touchstone of the system” .
Thus, the new crime of sexual assault, which absorbs the old one of abuse, is now “any act that violates the sexual freedom of another person as long as it is carried out without their consent”, therefore, “unlike the repealed regulation, this legal qualification is not conditioned to the use of violence or intimidation”, issues that become “modalities of commission”.
Consequently, “unless there is evidence to the contrary, ‘it will only be understood that there is consent when it has been freely expressed through acts that, in view of the circumstances of the case, clearly express the will of the person'”, which is enough to assess the existence of crime “the knowledge and will to threaten the sexual freedom of the victim”.
