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The legal chaos behind the “only yes is yes” law remains in the hands of the Supreme Court and prosecutors.

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The Supreme Court is set to issue its first ruling on the new “only yes is yes” law in the coming days. As elDiario.es has learned, this week the Criminal Court examined the case of a man sentenced to 12 years in prison for the rape of his underage niece in Mallorca, a case in which the convict’s lawyer asked the judges considering the sentence to be reduced. on the new law. In this case, as confirmed by this newspaper, the prosecutor’s office opposed the motion and requests to maintain the sentence. The Supreme Court’s deliberations come in stark contrast to the decision of some territorial courts to use the new law to reduce sentences for sex offenders.

Controversy over dismissals based on judicial interpretation of the new law has reached the top of the coalition executive. The president of the government, Pedro Sánchez, said a few days ago from Bali that they will wait for the court’s doctrine to be consolidated to decide whether the “only yes is yes” law is subject to any changes made by the minister of equality. Irene Montero denies.. eg. The Prosecutor’s Office started collecting information on the resolved cases.

The case, heard by criminal judges this week, concerns a man who took his niece, with whom he had an “almost paternal” relationship, to a farm outside the Balearic town of Pollensa in 2014 and once raped her there. A young woman after being shown a porn video on her mobile phone. After some time, he told his friend what had happened, and his uncle was finally arrested by the Civil Guard. A Balearic court sentenced him to 12 years in prison for the offense of sexual assault with penetration and aggravation. The convict, according to the judges, used his family proximity to the victim to carry out the attack on the farm, where no one understood him.

It is a sentence which, according to Supreme Court sources, the Criminal Court this week considered in an appeal by the convict to be acquitted. The appeal, which was filed several years ago, but which has been supplemented in recent weeks by his lawyer with requests to reduce the sentence in any case, using the new legal framework of the “only yes is yes” law. The judges agreed to take this into account.

The convict, as verified by this newspaper, claimed that the entry into force of the new legislation should be taken into account in his case. Both the prosecutor’s office and the private prosecutor’s office contested his appeal and this last-minute request by Equality for the reform, effective since the beginning of October. According to the prosecutor’s assessment, he was sentenced with aggravating circumstances, and the new sentence includes 10 to 15 years of imprisonment.

“The proposed sentence, 12 years, would be in the lower half of the new sentence and, in the prosecutor’s opinion, the severity of the behavior exhibited by the pedophile is justified. He said his 12-year sentence “adequately compensates for the seriousness of the sexual abuse” he committed against his niece. “Substantial criminal law is not violated by upholding the sentence,” he said in seeking to dismiss the appeal. In another case, according to the Public Ministry, the Supreme Prosecutor’s Office opposed another similar request for a reduction.

It was the first debate the Supreme Court’s Criminal Chamber has had on the matter, so far it has not decided to do so in the office, although each week it hears several sex-offense cases appealed from various territorial courts around the country. . They have pending verdicts, such as the rape of a girl in Madrid, the abuse of a man by his stepmother in Navarre or a girl in Leon, but sources in all these cases explain to elDiario.es that they have not done anything. Specific charges in this regard, however, it is believed that the judges will be the ones to do so on their own initiative.

Controversy regarding revision of proposals

In recent days, courts across the country have made public decisions to review the convictions of sex offenders after the new law went into effect, most of the cases involving the minimum sentences imposed on rapists, rapists and pedophiles. Under the previous Criminal Code. For example, the man who assaulted his partner’s daughter in Madrid and whose sentence was reduced from eight to six years in prison: his sentence was minimal, without aggravating circumstances and the reduction, according to the Madrid court, “must take place in these circumstances”.

This Thursday the Madrid courts published a similar case, a man was sentenced to six years in prison for raping his friend. This version of the crime also has a minimum sentence, and the Madrid court decided to reduce this article of the Criminal Code to a new minimum of four years of imprisonment. Most of the alleged cases have the same profile: the minimum sentence, and the judgment in the case argues that judges are now reducing to the new statutory minimum.

The case the Supreme Court will examine from the Balearic Islands does not meet the same criteria. The accused was sentenced to 12 years imprisonment, among other things, taking into account the existing aggravating circumstances. He was tried under the Criminal Code of 2010 and the judges explained that he deserved a more serious sentence because of the close relationship between the victim and the aggressor, how they were alone on the farm and almost at night: “It shows the objective situation. Inferiority in being a victim to an accused who had the victim at his mercy,” the Balearic Islands court said in justifying these aggravating circumstances and a higher sentence.

Therefore, it remains to be seen how Supreme Court justices will face this case in the face of total controversy, given the absence of a transitional provision that served to limit the ability of judges to commute sentences in previous Criminal Code reforms. Retroactively when the new law benefits the defendant. Adapting the argued minimum sentence to the new minimum sentence is acceptable, according to Supreme Court sources, but there are doubts about the rest of the sentences.

The case of La Rioja

The dissent was published by the Provincial Court of La Rioja. Judges have spent weeks ex officio hearing more than 50 sex offender cases to see if they can benefit from the reform, and so far they have not signed off on the cuts, while other cases are pending. Two of these cases were brought by lawyer Rosana Pérez Guerreia, a UOC professor, and were dismissed by both the prosecution and the provincial court.

One of them is, for example, a man who was sentenced to three years in prison for violence against his partner’s daughter. The Public Ministry explained in its allegations that the new law “does not have a transitional provision that establishes or explains how the change affects already pending and final cases,” but concluded that “the criteria set forth in Circular 3 / should be used as criteria for June 22, 15 : Final proposals cannot be reviewed when previous proposals are also taxed under this reform of the Code.

The Provincial Court of La Rioja rejected these two revisions, as well as the other fifty, by overcoming this argument and the absence of a transitional provision: in this case, the three-year sentence would be “taxed equally” under the law. Only a yes is a yes’ and therefore ‘it is not appropriate to review the sentence imposed’, says the La Rioja court. The response of the prosecutor’s office, according to various sources, is identical in many cases, for example, the response of a man who received a two-year prison sentence for assaulting a girl in an elevator in a house in Logrono.

The president of the Superior Court of La Rioja explained in several interviews that they refused to reduce the sentence because they were “fully taxed” by the new norm and that, although there is no transitional provision, “the Criminal Code is still in force. It” and considers what is applicable .This is the provision that prevents a lower sentence from being commuted if the same number of years in prison could be imposed under the new rule, in this case the “only yes is yes” law.

The Supreme Court’s ruling sets certain criteria for Spanish judges who hear other similar sex offender cases. A movement that various members of the coalition’s executive power, such as President Pedro Sánchez, have indicated as a flying goal to decide whether the norm promoted by equality should undergo some kind of change to stop the flow of discounts and even releases.

Led by Irene Montero from Podemos and the Ministry of Equality, they maintain that the norm does not require any changes and that, although it does not contain any transitional provision limiting the possibility of reducing the sentence, the jurisprudence is clear in this regard and some judges do not respects The State Prosecutor General, on the other hand, said that this reduction of the sentence will be considered without the use of “automatisms” and without reference to the victims.

Source: El Diario

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