The TS ends its first session without an agreement to determine how to apply the law of 'only yes is yes' to final convictions

The Criminal Chamber will continue its deliberation this Wednesday, as planned

MADRID, 6 Jun. (EUROPA PRESS) -

The Criminal Chamber of the Supreme Court (TS) has concluded its first session without an agreement to set criteria on how to apply the law of 'only yes is yes' to final convictions, so the deliberation will continue on Wednesday, as It was planned, according to legal sources reported to Europa Press.

The session, which began around 10:00 a.m., ended around 2:30 p.m. without the fifteen magistrates, including the president of the Second Chamber, Manuel Marchena, having achieved 'white smoke'.

The sources consulted by this news agency indicate that, in this first session, there has been time for the fifteen magistrates to intervene, but that no decision has been made on any aspect.

Until now, the courts have oscillated between applying automatic reductions or maintaining the old penalties where possible. In technical terms, the legal debate is located between article 2.2 of the Criminal Code (CP), which includes the principle of criminal retroactivity in favor of the accused, and the fifth transitory provision of the CP, which advocates maintaining the old penalties when they are taxable. with the new law.

The Plenary has deliberated on this dichotomy, which is actually a long-standing legal debate where part of the doctrine defends that the aforementioned provision, included in the CP of 1995 --the so-called Penal Code of democracy--, although It has been included in later reforms, it has expired because it was intended for a specific moment, of transition between codes, in order to avoid the review of thousands of sentences.

However, the State Attorney General, Álvaro García Ortiz, opted for this path when indicating to the members of the Public Ministry that, "as a general rule, the review of final sentences will not proceed when the sentence imposed is also capable of being imposed with according to the new legal framework", detailing that it would only be necessary to review "when the penalty effectively imposed exceeds in the abstract that which would correspond to be imposed" with the "only yes is yes".

Facing the Plenary, the sources pointed out that the Supreme Court is exploring a middle path that advocates "reindividualizing" the penalties. This thesis would imply always looking for the option that is most favorable to the prisoner, because this is the law, but ensuring that the punishment is proportional to the seriousness of the crimes committed, which would give the courts a greater margin to adjust the sentences.

The proportionality canon would play not only with respect to the years in prison and the facts, but also between the convicted. In this sense, the sources explained that it would be unfair, in a case where there are two convicts -one with a greater sentence than the other for having had a greater degree of involvement in the crime- for the first to have his punishment lowered, to adjust it. to the new arc, and to the second one was maintained, for fitting in the new fork, leaving both with the same penalty.

In this two-day monographic plenary session, the Supreme Court seeks to respond to a total of 29 appeals against the reviews of final sentences carried out by lower courts after the entry into force of the 'only yes is yes' law on October 7.

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

Thus, the Supreme Court analyzes for the first time whether the lower courts have correctly reviewed the final sentences after the 'only yes is yes'. 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."

According to the data collected by the General Council of the Judiciary (CGPJ) as of May 1, between the TS, the Superior Courts of Justice (TSJ) and the provincial hearings, 2,301 sentence reviews had been carried out, of which 1,079 reductions of sentences resulted. penalty and 108 releases.