The Prosecutor's Office sets criteria to prevent an "automatic" reduction of sentences in reviews for the 'only yes is yes'

It says that it is not appropriate to review penalties when those already imposed are still in force in the new law

The State Attorney General, Álvaro García Ortiz, has issued a decree on Monday for prosecutors to give "a uniform response" to the reviews of final sentences caused by the entry into force of the so-called 'law of only yes is yes' , establishing that they will not be modified when the sentence imposed can be handed down with the new penal framework, thus avoiding an "automatic" reduction of sentences.

The decree states that, "as a general rule, the review of final sentences will not proceed when the penalty imposed in the sentence is also likely to be imposed in accordance with the new legal framework resulting from the reform", specifying that "automatic adaptation will be avoided of the penalties previously imposed in arithmetic proportion to the new punitive framework".

Thus, it indicates that the review will only proceed "when the penalty effectively imposed exceeds in the abstract that which would correspond to be imposed in application of the precepts of the new criminal legislation."

The tax sources consulted by Europa Press explain that these guidelines imply that, for example, if a person was sentenced to 3 years for sexual crimes and the 'law of only yes is yes' allows sentencing that same conduct with between 2 and 6 years, The 3 years can be maintained because they are still within the criminal range that the new law has designed.

In any case, the attorney general stresses that "each procedure must be analyzed individually, avoiding automatisms that prevent the specific circumstances in each case from being assessed."

The Prosecutor's Office states that this means maintaining the traditional position, according to which "regardless of whether the maximum and minimum limits of the sentence established in a criminal type are modified as a result of a reform, if the custodial sentence imposed before of the legislative modification is also likely to be imposed in accordance with the new wording, there will be no room for review of the conviction".

Along the same lines, it points out that it has traditionally been accepted that "prosecutors will only take into consideration the circumstances included in the sentence under examination, analyzing it with full respect for the facts declared proven therein."

The decree puts the magnifying glass in certain cases. On this point, it establishes that "in the event of a reduction in the prison sentence due to the review, the penalty of probation (art. 192.1 CP) and the penalty of special disqualification (art. 192.3.II) will also proceed." PC)".

It also refers to "the possibility of granting the benefit of the conditional suspension of the revised custodial sentence", to specify that "the guidelines established on this matter in FGE Circular No. 3/2015, in which specifies that 'if a sentence is reviewed and if the new sentence imposed allows it and the previous one did not consent to it due to its duration, nothing prevents the benefits of the suspension of execution from being applied'".

"Similar criteria must be followed in relation to the substitutive expulsion of article 89 of the Criminal Code, so that its review will also proceed when the sentence finally imposed is less than one year in prison", so that "in such cases the prosecutors will opt for the execution in Spanish territory of the sentence imposed, unless the prisoner requests that the pronouncement on the expulsion be maintained, "he completes.

In addition, the head of the Public Ministry states that "prosecutors will prioritize the examination of the procedures that, due to the effective review of the sentence, may lead to the release of the convicted person."

TRANSITORY DISPOSITIONS

On the other hand, the attorney general clarifies that "the fact that Organic Law 10/2022, of September 6, does not contain provisions for a transitional regime in no way alters the previous conclusions, since this type of provision lacks the power to restrict and , much less, contradict the content of article 2.2 CP", which includes the principle of retroactivity in favor of the accused.

In this regard, it highlights that "the content of the fifth transitory provision of Organic Law 10/1995, of November 23, of the Criminal Code, successively reiterated in subsequent legislative reforms, is applicable because it constitutes a fully consolidated interpretative criterion ".

"In short, although Organic Law 10/2022, of September 6, on the comprehensive guarantee of sexual freedom, lacks a transitory provision, the interpretation of article 2.2 CP will be made in accordance with the criteria provided in article 3.1 of the Code Civil", according to which "the norms will be interpreted according to the proper meaning of their words, in relation to the context, the historical and legislative background, and the social reality of the time in which they are to be applied, fundamentally attending to the spirit and purpose of those".

"Thus, the possible interpretative gaps, in the absence of an authentic interpretation, will be filled in accordance with the logical, historical and systematic criteria of the norm", he affirms.

A FIRST GUIDELINE

The FGE clarifies that this decree, "mandatory" for prosecutors, "has been issued so as not to delay the specific guidelines for the review of sentences until the publication of a circular from the State Attorney General, which will be issued shortly once submit to the mandatory report of the Board of Chamber Prosecutors".

In line, he adds that "the treatment of these current issues will be monitored by the State Attorney General's Office, in order to guarantee the principle of unity of action, which is not an interpretative novelty, but rather a reminder of the guidelines that have already been collected in previous circulars or instructions".

Consequently, he reasons, "any interpretation of the norm and of the facts, according to the parameters described above, will prioritize respect for constitutional principles, taking into account especially the need to guarantee the safety and indemnity of the victims of crimes against sexual freedom, whose protection in all cases is the responsibility of the Public Prosecutor's Office, as well as the rest of the powers of the State".

"It should not be forgotten that the integration of the norm must be done in accordance with the provisions and the spirit of the Istanbul Convention, which requires the imposition of effective, proportional and dissuasive sanctions, depending on the seriousness of the crime, as well as the rest of the obligations international commitments assumed by Spain", he concludes.

GATHERING INFORMATION

The movement of the Public Ministry takes place after, after the entry into force of the Organic Law of comprehensive guarantee of sexual freedom --on October 7--, the judges and courts have reviewed numerous sentences for sexual abuse, lowering more than a dozen sentences, which has led to the release of five people, according to data collected by Europa Press.

As other legal voices have explained, the law of 'only yes is yes' 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 the entire range of behaviors now punishable as sexual assault.

Already last Thursday, the head of the Public Prosecutor's Office ordered the superior prosecutors to collect and send him the information on the cases of convictions for sexual crimes that have been reviewed due to the entry into force of the 'law of only yes is yes' ' to determine if there was a disparity of criteria in the prosecutors of the different cases and, therefore, a need to unify them.

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