The “only yes is yes” law includes a new clause “to facilitate its application” after the rule led to a cascade of court decisions in various ways, often with reduced sentences and conflicting criteria among prosecutors. and some courts. The Equality Ministry reached an agreement with the socialist part of the government, which after several days of negotiations agreed to add some lines to the rule for “proper use”, according to government sources.
These sources indicate that this text will be added to the explanatory section of the Criminal Code to bring its application in line with “consolidated jurisprudence”. The change will now come into effect alongside the handling of the reform of sedition and embezzlement offences.
The text of the amendment, which elDiario.es had access to, recalls that the additional provisions included in the various amendments to the Criminal Code are still in force, which must also be used in the reforms that have now been approved and this limit the possibility of the court to review the reduction of the sentence if it can also to be established by a new law.
Legal debate has raged in recent weeks over the lack of a transitional provision in the law, which was included in other reforms to the criminal code. This addition indicates that to prevent the reversal of the rule of reduction of sentence carte blanche, it states that “this code will not be considered more favorable when the duration of the previous sentence imposed on the fact together with its circumstances are also taxed by the new code”. That is, if the punishment is stipulated in the new law, there is no possibility of reduction.
The “yes is only yes” law did not originally include this definition. Some judges then explained that only the most favorable appeal and automatic reduction of the sentence is possible for the convicted person; However, others explained that its absence does not prevent its use and chose to go ahead and just reduce the minimum fines that have now been replaced by the new norm.
Government sources note that the now-introduced clause facilitates the interpretation of the “transitional law”, i.e. the transition from one Penal Code to another. They argue that this is not a modification of the “only yes is yes” law, but a change in the interpretation of the criminal code that will apply to all reforms of this rule. The same sources claim that the change introduced now is in line with what was stated by the prosecutor’s office.
After the rule went into effect, some courts reviewed rape sentences and decided that some sentences should be reduced under the new rule. But the criterion was not unanimous, there were judges who understood that there was no place without retroactive application, and the prosecutor’s office published an instruction in which it rejected the general reduction of the sentence. According to his criteria, if the punishment exists in the new Penal Code, it should be retained, although it would include that cases be analyzed individually and without “automatisms”.
The directive to prosecutors did not prevent various rulings in which the sentences of those convicted of rape were reduced during these weeks. The Supreme Court’s criteria, which some judges and even the government relied on before deciding whether to change the law, can be seen in one of its first rulings: the judges increased the fines for Ardina’s players, but they made it clear that his sentence could be longer “only Yes is yes” without the law. The sentence, yes, does not establish jurisprudence, as the Supreme Court still has several appeals for those sentences that could be affected by the reform.
Source: El Diario