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In June 2016, Nellie received one of the best news you can get when you’re in serious trouble for justice. The Supreme Court reduced his prison sentence from six years to eight months for helping several Peruvian citizens fraudulently obtain residency permits to live in Badajoz. The reason is that before his conviction was finally announced, the criminal code was changed and his crime carried a much lesser prison term. Nellie’s case is one that prosecutors used to try to stop an avalanche of sex offender sentence reductions due to the use of the “yes is only yes” law, which sets out two different scenarios: when the sentence is not severe, or when it is severe, and is also possible under the latest version of the penal code. In his case, the sentence was reduced because it was not yet final and, moreover, it was much higher than what was allowed under the new law.

The Prosecutor’s Office this Monday published its guidelines for all members of the public ministry who will encounter one of these cases. A document that calls for the attorney general’s office to look at each case through a magnifying glass, but which limits the number of cases in which a court must be able to downgrade a rapist or pedophile’s conviction: the final conviction will not be considered if his sentence is years in prison. “.

They can be revised if “in the abstract” the sentence is greater than what would be consistent with this new penal code, and under no circumstances can “arithmetic proportion” be used to calculate the new sentence.

The Prosecutor’s Office admits that the “only yes is yes” law does not have a transitional provision, which, as in previous reforms of the Criminal Code, explicitly limits the possibility of reconsideration of the sentence, but it is an established criterion that must be applied equally. . This is the criterion followed by the prosecutor’s office, as explained by elDiario.es, both in the fifty cases that have been decided negatively in La Rioja, as well as in the two cases that await a decision in the Supreme Court.

This criterion, in practice and if adopted by the courts, means a partial limitation on the reductions that some judges apply to sexual assault cases after the entry into force of the reform of the criminal law promoted by the Ministry of Equality. Irene Montero. The criterion, which the prosecution explains in a document, stems from a case decided by the Supreme Court in 2016, which freed from prison a native of Badajoz who was convicted of facilitating illegal immigration by signing fake work contracts with Peruvian citizens. residence permit.

This sentence, investigated by elDiario.es, examined the case of Nell, who was convicted in Extremadura because between 2004 and 2006 he paid several thousand euros from half a dozen people in exchange for various job offers and contracts, which were later presented to the government. delegation to Badajoz to “fraudulently obtain” the right to reside and work. Each paid between 3,000 and 4,000 euros.

The court in Badajoz convicted both the leader of the group and two of his associates, and he received the maximum sentence: six years in prison for the aggravated version of the crime of facilitating illegal immigration, as written in the law of the year. 2000 on rights. and liberties of foreigners in Spain. At the time, the Criminal Code provided for a prison sentence of two to four years, higher if, as in this case, he acted within an organization.

Only the leader of the group Nelly appealed the sentence and among his arguments he appealed to the Supreme Court that since then the law has changed and the Criminal Code of 2015, which was already in force at the time, was much more benevolent and benevolent. He offered a three-month prison sentence. Only he appealed, he was the only one whose conviction forced him to go to prison. His employees were sentenced to two years in prison and did not appeal.

Two types of reviews

This 2016 decision chose to reduce his initial sentence of six years to eight months, explaining in Candido Condé-Pompido’s presentation that there are two different scenarios: when, as in this case in Badajoz, the sentencing is still pending. It is not strong, and when it is, the prisoner is already serving time behind bars.

This is one scenario that is now on the Supreme Court’s desk. Cases already in the first and second instance, such as the Arandina or the Pollença pedophile case, played the “only yes is yes” law card after the case reached the second chamber of the Supreme Court.

In these cases, the Supreme Court said in 2016, there is more room to maneuver to reduce the sentence: “If the appeal was considered during the resolution of the appeal, the new regulation directly applies.” This was done in the case of a woman who facilitated illegal immigration in Badajoz, her prison sentence was reduced from six years to eight months. In this case, the Chamber, the Supreme Court said, must calculate the sentence “without any limitation arising from the fact that the fine imposed by the court order is also taxable under the new statutory framework”.

But the Supreme Court has set a different path for sentences that are retroactively reviewed once a court has made a final decision, like the current case of La Manada from Pamplona or other perpetrators who have recently presented their cases in courts under the umbrella. A new law. A more restrictive way.

In considering the final sentence, the Supreme Court said that a new law or version of the Penal Code will not be applied retroactively “when the length of the previous sentence imposed on the act together with its circumstances is also taxed by the reformation of that Code.” . That is, when the revised punishment is also possible in the new Penal Code. Allowed only “exceptionally” when the difference between the two laws may be disproportionate.

This 2016 Supreme Court decision builds on previous rulings and also cites transitional provisions introduced by the 2015 reform that are absent from the 2022 reform. Here, the prosecution admits that these transitional provisions do not exist, but the doctrine is already perfectly adapted to its content: “The content of the fifth transitional provision of the Penal Code 1995,” it argues, applies to the “only yes is yes” law, “because it constitutes a fully consolidated interpretive criterion”.

That same year, Pablo Llarena signed another sentence in which he refused to reduce a prison sentence of more than two years for a man who defrauded BBVA and Caixa Galicia of thousands of euros. In this case, the Supreme Court stated that not only was the sentence possible under the new law, but that the new law was “perfectly suited to the circumstances of the facts on which the sentence was imposed.”

“à la carte Criminal Code”

Three years before Nell’s case was decided and he was prevented from going to prison, the Supreme Court had already shown its reluctance to automatically review and reduce sentences after reforming the penal code. In 2013, again with Condé-Pompido, the judges examined a woman’s appeal against a six-year prison sentence for trafficking heroin, cocaine and hashish with her family in Galicia.

The events took place almost three decades ago, and his defense requested a review of the sentence after the Criminal Code was amended in 2010. The answer of the Supreme Court was negative, because “retroactive application of legal reform by creating a code cannot be implemented. the letter”. Use the favorable elements of the new law to your advantage and, in practice, save what is best for the prisoner to reduce his sentence.

In that ruling, the Supreme Court said that “a new regulation must be evaluated generally, which defines a new legislative evaluation of certain conduct and that it may include more favorable aspects and other unfavorable aspects.” If we take into account that they sold different types of drugs and it was an organization of several people, after the reform of 2010 the punishment could have been even higher.

“Specifically, the sentence imposed is not disproportionate,” the Supreme Court reasoned in that case. This proposal also includes a transitional provision, which was second on the list in the 2010 reform, and which the Prosecutor’s Office now considers fully integrated into the jurisprudence without the need to leave it in writing in each reform of the Criminal Code. He proposes here another code, the Civil Code, which in its Article 3.1 calls for the interpretation of laws “according to the proper meaning of their words, in relation to the context, historical and legislative background and social reality. The time when they should be used is fundamentally about their spirit and purpose. ”

Source: El Diario

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