State Attorney General Alvaro García Ortiz has issued a directive outlining “guidelines” that prosecutors must follow when considering sentencing sex offenders after the “only yes is yes” law goes into effect. The text, which elDiario.es had access to, includes and expands on the decree published last November, arguing that, as a general rule, “it is not appropriate to review the final sentence when the sentence imposed can also be imposed on a new legal basis.”
Controversy over sentence reductions and commutations based on judicial interpretation of the law has torn apart the coalition government. The PSOE unilaterally and voted against United We Can launch a reform initiative to prevent future sex offenders from receiving less severe sentences than they would have received under the previous criminal code. It’s a response from the socialist wing of the executive branch to the “unwanted effects” of using the rule, which has so far resulted in at least 721 sentence reductions, according to the General Council of the Judiciary (CGPJ).
With this instruction, García Ortiz establishes the position that prosecutors must take prior to this review in order to ensure the “unity of action” required by the Constitution. The 121-page document sets out “general” guidelines and contains two specific parts: one for final decisions and one for final calls. That is, those who are still in the appeal phase.
In both cases, the Prosecutor’s Office notes that in order to assess which law is more beneficial, prosecutors will take into account all applicable rules of the current and previous editions of the Criminal Code. Likewise, it indicates that they should “give priority to investigating procedures that may lead to release” and that if the sentence is reduced they should “consider” the imposition of other measures, such as probation, deprivation of parental rights or disqualification from a profession or activity involving Contact with minors.
As for the already final sentences, the Prosecutor’s Office confirms that each procedure should be analyzed “individually”, without “automatism”. And he reiterates that prosecutors will not seek a reconsideration of the sentence when a sentence under the new law is likely to be imposed. This will be done as a “general rule”, although “exceptionally” it will be possible to facilitate a review in cases that would have had “much shorter” sentences if the facts had been established under the applicable law. on October 7.
However, the guidance states that in this case, prosecutors will be “particularly cautious” and consider the introduction of new aggravating factors included in the “yes is only yes” law. In recent months, some experts believed there was a problem with the application of the law, as some judges limited themselves to calculating sentence reductions without examining all the tools included in the new regulation, such as new aggravating circumstances.
Part of the legal debate has focused, to date, on Article 2.2 of the Criminal Code, which allows for retroactive review of convictions if legal reform would benefit the prisoner. But also in the absence of a transitional provision, traditionally included in sentencing reforms, to limit the ability of judges to sign off on these reductions.
In this regard, the prosecution’s instruction states that there is “nothing to prevent” the fifth transitional provision of the Criminal Code of 1995 from using the fifth transitional provision of the Criminal Code of 1995 “only a yes is a yes” law, which details that. Freedom will not be considered more favorable under this code when the new code also taxes the duration of the previous sentence imposed on the fact in its circumstances.
The Prosecutor’s Office recalls that the Supreme Court itself made a decision in this regard in 2015. At the time, the criminal code reform that followed the anti-terrorist pact agreed by the PP and PSOE did not include a transitional provision either. However, the High Court rejected the request of some terrorists to benefit from this reform and have their sentences reduced on the grounds that the transitional provision of the Criminal Code of 2015 could be used as it was included in the previous rule.
In addition, the guidance emphasizes that understanding that this criterion does not apply, because the new law does not contain an ad hoc transitional provision, would lead to “different” legal treatment for “objectively equivalent situations”, which would violate it. Principles of equality and legal security. The Public Ministry defends that its thesis is “the most respectable” according to the principle of equality declared by Article 14 of the Constitution.
Source: El Diario