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The challenge of the TS in 2023: study the impact of the penal reform on the 'procés' and establish doctrine for the 'only yes is yes'

The year begins with 19 vacancies due to the impossibility of the CGPJ to make discretionary appointments.

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The challenge of the TS in 2023: study the impact of the penal reform on the 'procés' and establish doctrine for the 'only yes is yes'

The year begins with 19 vacancies due to the impossibility of the CGPJ to make discretionary appointments

MADRID, 1 Ene. (EUROPA PRESS) -

The impact of the penal reform on those convicted and prosecuted by the 'procés' and on those convicted of crimes of sexual violence will mark 2023 of the Supreme Court (TS). The magistrates will have to study the repeal of sedition, the new wording of embezzlement and the fusion of abuse and sexual assault to review --among others-- the sentence of the former vice president of the Generalitat Oriol Junqueras, as well as to establish doctrine in the application of the law of 'only yes is yes'.

A part of the reform repeals sedition and modifies embezzlement to reduce penalties when there is no profit motive or public money is used for a use other than that intended. This will make it possible to reduce the disqualification of those convicted of the 'procés' --such as Junqueras-- and apply lesser sentences to those on the run --such as former president Carles Puigdemont--. However, the interpretation that the judges make of the new concepts will be key to determining the final result.

Legal sources consulted by Europa Press recall that any reform that implies a benefit for the convicted must be studied for its possible application, because this is established by the Penal Code (CP), which in the case of the 'procés' would mean reviewing the only current sentence --that of disqualification--, taking into account that those who were sentenced for both crimes were convicted in court proceedings, that is, with sedition as the main crime and embezzlement as instrumental.

Regarding the repeal of sedition, the aforementioned sources state that the sentence could not be redirected to the crime of aggravated public disorder, because it did not exist in 2017, so they would have to be redirected to a crime that was in force then, which -they point out- - It could be disobedience, punishable by a fine and disqualification from 6 months to 2 years.

Regarding embezzlement, the sources stress that the new configuration draws three assumptions: one when there is a profit motive, a non-profit one for "private uses", and another for when what is embezzled goes to a purpose other than that intended.

The sources emphasize the fact that both the profit motive and the "private uses" are concepts susceptible to interpretation by the judges in each case, an operation that allows them to modulate the penalties based on the assessment they make.

It will be the court of the Supreme Court that judged the leaders of the 'procés' that will have to meet and deliberate on how to apply this reform to Junqueras and the other convicts, which will enter into force on January 12.

In the case of the fled defendants --Puigdemont, Toni Comín, Clara Ponsatí and Lluís Puig--, it will be the instructor Pablo Llarena who will study the impact of the reform on national and international arrest warrants. With the legal change, it would no longer be possible to speak of sedition, although it would be possible to claim them for disobedience and embezzlement.

Once they were handed over, the legal sources consulted highlight that the Criminal Procedure Law establishes that provisional detention can only be agreed upon when the sentence is at least two years. In the event that it falls below (disobedience is not punishable by imprisonment), this precautionary measure could not be issued.

The sources add that for the computation of the disqualification penalties, the sentence handed down is taken as a general starting point, although they add that it is possible to discount the time of provisional disqualification.

Another part of the penal reform - which came into force in October - has caused the crime of sexual assault to absorb that of sexual abuse, which means that a crime that until now included a more serious conduct incorporates a less serious one, Therefore, the criminal range has also been expanded to cover all behaviors now punishable as sexual assault.

Given this scenario, one of the issues that has aroused the greatest expectation is the doctrine that the Supreme Court will elaborate on how the Organic Law of Comprehensive Guarantee of Sexual Freedom should be applied, which has caused more than 100 sexual offenders to have their sentences reduced and almost twenty have been released.

The Supreme Court ruled on the new law in its ruling on the so-called 'Arandina case', establishing that it is "mandatory" to apply the new rule because it is "more favorable" to the prisoner. However, in this case the key was not the "only yes is yes" law, but the aggravating and mitigating circumstances that led to raising the sentences from 3 and 4 years in prison to 9, one less than what the Prosecutor requested.

The sources consulted explain that, although the 'Arandina case' is a first manifestation, it does not serve to establish doctrine because it is a matter that was already pending an appeal and had legal elements to consider beyond the new law. They indicate that in order for the TS to clarify the rules of application of the 'only yes is yes' to final judgments, it will have to rule in the same sense in similar cases. And until they achieve it, it could take months, they point out.

In addition, the TS has pending to answer the appeal of the general secretary of the General Council of the Judiciary (CGPJ), José Luis de Benito, against the appointment of Rafael Mozo as interim president of the body.

It is expected that in this ruling the Supreme Court will clarify whether the current bicephaly of the Judiciary is legal. Its leadership, always exercised by the same person, unfolded when Carlos Lesmes resigned as president of the TS and the CGPJ on October 9 due to the lack of progress in the negotiations between PSOE and PP to renew the Council (which has expired for 4 years). .

The Technical Cabinet of the TS appointed the Supreme Court magistrate Francisco Marín Castán as his successor in both positions, but the members of the CGPJ chose to enthrone Mozo as their interim president. De Benito and the only member who voted against Mozo, Wenceslao Olea, challenged his appointment, although the latter ended up giving up. However, the appeal of the Secretary General is still alive.

On the sidelines, the TS is pending to resolve the appeals against the pardons for 9 of those convicted of the 'procés'. The key in this case will be the legitimacy of the appellants, which led to their being inadmissible at first and then, given the internal "discrepancies" of the court, led the Supreme Court to admit the writings.

In addition, it must rule on the nullity motion presented by the former Andalusian president José Antonio Griñán against the sentence that confirmed his sentence of 6 years and 2 days in prison for prevarication and embezzlement in the ERE case.

Likewise, the investigation is pending against the PP deputy Alberto Casero for alleged prevarication and embezzlement in his management as mayor of Trujillo (Extremadura) in 2017 and 2018, as well as the procedure against the CUP leader Anna Gabriel, who in 2022 handed over to the TS for the crime of disobedience for which she was prosecuted in absentia.

The Supreme Court faces this horizon with 19 vacancies, given the impossibility of the CGPJ to make discretionary appointments in the judicial leadership while it is in office, something that has been happening since 2018.

The Contentious Chamber has 22 of the 33 magistrates that it should have and in 2023 it expects a new retirement. The Social one has 8 of the 13 that corresponds to it and in July it will add a new vacancy. That of the Military has 6 of the 8 magistrates that it should have and in September it will have one less. The Civil Law retains 9 of its 10 magistrates. The only one intact is the Criminal Chamber, which will suffer its first loss in April.