The state attorney general’s office issued an order Monday detailing the criteria prosecutors must follow when using the Comprehensive Sexual Freedom Act, known as the “only if it’s yes” law, to review the sentences of sex offenders. ‘. The instruction provides that the sentence will not be revised when subject to the imposition of a sentence under the new law. In other words, the review will proceed only when the proposal is abstractly superior to what would be consistent with the application of the reform.
However, the Public Ministry confirms that each procedure must be analyzed individually and “avoid automatism” that prevents the assessment of the circumstances of each case. The document is published in full controversy regarding the decision of some territorial courts to reduce the sentences of those accused of sexual violence after the entry into force of the norm.
The ordinance, in line with what prosecutors have said in the La Rioja or Supreme Court cases, explains that the review will continue when a sex offender’s sentence “abstractly exceeds” what the new penal code would have given him. The final sentences are not reviewed when the years of imprisonment imposed “are also inclined according to the new legal framework”, directly denying the prosecution that the sentences are automatically adapted “in arithmetical proportion of the new penal framework”.
Transitional provision
The legal debate has focused, to date, on Article 2.2 of the Criminal Code, which allows for retroactive downward revision of convictions if legal reform would benefit the prisoner. But also in the absence of a transitional provision, traditionally included in code reforms, to limit judges’ ability to sign off on these cuts. In an interview with elDiario.es, the government delegate against gender-based violence, Victoria Rosell, said that none of the organizations that reported on the rule, nor the parties involved in the process, had been warned of this possibility.
Now the prosecutor’s office, as it has already expressed in more than fifty cases decided in La Rioja, explains that although this new norm “does not have a transitional provision”, this retroactivity must be considered “according to the proper meaning of its words, the context, the historical and legislative precedents and the time The social reality in which they are to be used must fundamentally take into account their spirit and purpose,” as established by the Civil Code. In this way, the prosecutor’s office says, “possible interpretive gaps” are opened.
In recent weeks, courts across the country have applied the new law 10/2022, known as the “only yes is yes” law, and in cases such as the high courts and tribunals of Madrid, the Balearic Islands or Galicia, they have chosen to weaken the law. Punishment while the response of the judges in La Rioja to more than fifty cases that are heard ex officio has been negative.
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.. Several courts have so far interpreted the statute as allowing for retroactive sentence reductions, while others have understood that the limitations of the transitional provisions of previous versions of the Criminal Code may apply.
Source: El Diario
