The Supreme Court endorses the sentence reductions in firm convictions by the law of 'only yes is yes'

Ignore the criteria set by the attorney general, in favor of maintaining the old penalties

The Criminal Chamber of the Supreme Court (TS) has endorsed the sentence reductions applied in the reviews of final sentences after the entry into force of the "only yes is yes" law, which means discrediting the criteria set by the prosecutor State General, Álvaro García Ortiz, after a two-day monographic plenary session held expressly to unify doctrine on this issue.

As reported by the Supreme Court, the fifteen magistrates of the Second Chamber, including its president Manuel Marchena, have confirmed the criteria applied in their vast majority by the provincial courts.

According to the latest data provided by the General Council of the Judiciary (CGPJ), as of May 1, 2,301 reviews had been carried out, resulting in 1,079 sentence reductions and 108 releases.

In this way, the Supreme Court ignores the Public Prosecutor's Office, which advocated maintaining the old penalties when they could be imposed with the new law to avoid automatic reductions.

The high court has only agreed with the Prosecutor's Office on a specific point. And it is that it establishes that those convicted of sexual crimes who see their sentences reduced will also lose parental authority, guardianship and curatorship when imposed as an accessory penalty. This is because these accessory penalties were included in the 'only yes is yes' law, which, if applied, must be complete.

Tax sources point out to Europa Press that García Ortiz will wait to hear the legal arguments of the 29 appeals resolved in this monographic plenary to pronounce. The rulings will be known in the coming days.

The Second Chamber has directly rejected the application of the fifth transitory provision of the Criminal Code (CP) of 1995, which includes the thesis of the Public Ministry. Legal sources specify that the reason is that the 'law of only yes is yes' did not expressly incorporate it into its text.

PSOE and Unidas Podemos tried to correct it last December through an amendment with which in the preamble to the penal reform they introduced that said provision should be applied.

However, the sources emphasize that the explanatory statements do not have legal force, being only a kind of guide, so that with respect to the "only yes is yes" article 2.2 of the Penal Code (CP) operates, which includes the principle of penal retroactivity in favor of the accused.

In any case, it should be remembered that the fifth transitory provision has been the subject of legal debate for years because it was devised for a specific moment, of transition between penal codes, to avoid having to review thousands of sentences, for which part of the doctrine argues that its validity has expired.

UNIFIES DOCTRINE

Until now, the courts have oscillated between applying automatic reductions or maintaining the old penalties where possible. In technical terms, the legal debate has been located between article 2.2 of the Criminal Code and the aforementioned provision.

The decision adopted by the Supreme Court marks the way for the lower courts when it comes to making revisions. In fact, the sources consulted detail that these weeks a stoppage has been detected in the reviews caused by the 'only yes is yes', "probably", waiting for the Supreme Court to set criteria.

With this two-day plenary session --began on Tuesday--, the TS has responded to a total of 29 appeals against the reviews of final sentences carried out by lower courts after the entry into force of the new law, on October 7 .

There were 22 appeals filed by the convicts themselves, some because they had not seen their sentence reduced and others because they considered that the reduction was insufficient, and 7 by the Prosecutor's Office. In addition, in 16 of the cases studied the victims are minors.

ALMOST UNANIMOUSLY

The magistrates have rejected the appeals raised by the Public Prosecutor's Office that asked for increased sentences --with the exception of the accessory penalties of the rights to parental authority, guardianship and curatorship--, also dismissing the petitions of those convicted in the appeals that they presented .

Of the 29 appeals analysed, 27 have been unanimously resolved by the Plenary. One has been by majority but without announcing a particular vote, and the other, for which Judge Andrés Palomo was the rapporteur, has caused the change of presentation, which will now be assumed by Judge Leopoldo Puente, and which is the only matter that will have individual votes.

In this latest sentence, the majority criterion for rejecting the prosecutor's appeal has been assumed by Marchena, and by nine other magistrates -- Julián Sánchez Melgar, Juan Ramón Berdugo, Pablo Llarena, Vicente Magro, Carmen Lamela, Eduardo de Porres, Ángel Luis Hurtado, Leopoldo Puente and Javier Hernández--. The individual vote will be signed by Palomo, Del Moral, Ana Ferrer, Susana Polo and Andrés Martínez Arrieta.

This is the case of a girl who was sexually assaulted by three men when getting off a train in the Madrid municipality of Coslada. The one who received the longest sentence, 24 years, was sentenced to the minimum sentence of the moment, for which the Madrid Court lowered him to the new minimum, 15 years.

FIRST STATEMENT ON FIRM SENTENCES

It is the first time that the Supreme Court has entered to analyze whether the lower courts -in this case the provincial courts- have correctly reviewed the final sentences after the 'only yes is yes'.

The resources analyzed correspond to reviews of sentences carried out by the provincial courts of Madrid (8), Barcelona (1), Palma de Mallorca (2), Bilbao (1), Soria (1), Toledo (1), Guadalajara (1) , Las Palmas (3), Pontevedra (3) A Coruña (1), Valencia (3), Castellón (1), Almería (1), and Cádiz (2).

Until now, the Supreme Court had ruled only on appeals. Specifically, he has already delivered 75 rulings, maintaining the penalties imposed at 47 and ordering reductions in 28.

The first time that the Supreme Court manifested itself on the new law was with the so-called 'Arandina case'. Then, the Second Chamber clarified in a press release that "it may be applied to the benefit of the prisoner when a lower penalty is now set in those cases in which it proceeds, but analyzing it on a case-by-case basis, not globally."