At least 11 provincial hearings distance themselves from the Prosecutor's Office and set to review sentences for sexual offenders

Three other hearings choose not to lower the sentences when the old sentences can be applied with the new law

MADRID, 29 Nov. (EUROPA PRESS) -

At least 11 provincial courts have already ruled in favor of applying the criteria most favorable to the accused in reviews of convictions of sexual offenders after the entry into force of what is known as the 'only yes is yes' law. The last to join has been the Provincial Court of Cáceres.

This contrasts with the criterion established last week by the State Attorney General, Álvaro García Ortiz, so that sentences will not be modified when they can be imposed with the new criminal framework, a criterion that would avoid an "automatic" reduction of sentences.

Until now, 17 of the 52 provincial hearings have manifested themselves on the Organic Law of Comprehensive Guarantee of Sexual Freedom. A total of 11 have said that they are in favor of applying the most favorable revisions to the prisoner; three have not set a clear position, pointing to the need to review case by case; and another three have reported that it will not reduce the sentences when the sentences that were imposed can also be imposed under the new legal framework established by law.

This Tuesday, the Provincial Court of Cáceres has agreed to apply the most favorable legislation to the prisoner under article 2.2 of the Penal Code. As specified, the review will be carried out "case by case" and if there is any case in which the new rule is more favorable, the penalties will be modified.

Thus, the hearing from Cáceres has joined the criterion that the Superior Court of Justice (TSJ) of Murcia already advanced yesterday, which indicated that given that in the new law there is no "specific provision for review", "this procedure is mandatory in response to to the principle of retroactivity of the most favorable penal law" to the accused.

In the Court of Murcia, cases where the old penalty is higher than those provided for in the 'law of only yes is yes' for the same conduct will be reviewed ex officio, although it stresses that it will be necessary to attend to the "specific case" and the "principle of proportionality".

Along the same lines, the Almería Court explained that it will take into account the most beneficial law for the convicted. He specified that "all those causes must be reviewed even if the penalty that is imposed is imposed again with the new law."

In recent days, the provincial courts of Madrid, Valladolid, Vizcaya, Granada, Córdoba, Málaga, Zaragoza and Alicante have also unified criteria in different conclaves and all of them have agreed to continue betting on sentence reductions to adjust them to the new legal framework.

The Court of Alicante has agreed to review the final sentences in which the prisoner is serving the sentence or pending to serve it and apply "the most favorable legal provision to the prisoner in each case, without making a new individualization of the sentence."

For its part, the Madrid Court has decided to apply these revisions after putting the matter to a vote. In the case of the Provincial Court of Valladolid, they will review on a case-by-case basis those sentences in which, retroactively, the new reform of the Penal Code could be applied to those convicted.

The Vizcaya Court has agreed to review ex officio all convictions of sexual offenders based on the new law. Of course, with the exception of cases in which the convicted have obtained the suspension of the sentence and are not in prison. The reviews will be made on a case-by-case basis, the opinion of all the parties involved will be requested, and uninvited victims will be spared "useless procedures that could harm them."

In line, on November 22 – one day after the FGE set its criteria – the Provincial Court of Zaragoza indicated that it opted for applying the most favorable rule to the prisoner. He explained that when the maximum sentence has been imposed "the maximum of the current reform should be put and the corresponding part reduced." Regarding the minimum, he said: "If now it is lower, we will apply the current norm because we consider that it is more favorable to the prisoner than the previous one."

The Court of Malaga has also reported that it already analyzes sentences ex officio to see if it is appropriate or not to carry out a review after the 'only yes is yes' law. He has warned that it will be done studying "case by case".

In the same way, the Court of Granada has agreed to review ex officio the final sentences of those convicted of sexual crimes to, as indicated by other hearings, apply in these cases "the provision that is most favorable to the prisoner."

Likewise, the Court of Córdoba will review ex officio the sentences for crimes against sexual freedom that can be modified by the retroactive application of the sentence that is most favorable to the convicted person.

On the sidelines, the TSJ of Galicia has reported this Tuesday that it is in favor of reviewing the sentences that may be affected by the entry into force of the law as long as the "specific circumstances" of each case are addressed and a " weighted analysis" that the new norm favors the accused.

In a sentence, the Galician court has established as a criterion that the sentences will be reviewed downwards whenever a "weighted" analysis is carried out of "to what extent" the new legislation favors the prisoner "with preferential attention" to the will of the law and not to the will of the legislator, a criterion that the magistrates have assured is not valid in legal interpretation.

This same Tuesday, the Zamora Court has announced its intention to review ex officio all the final sentences handed down on crimes against sexual freedom in which the convicted person is effectively serving the sentence.

On the other hand, the Court of Asturias has agreed to "review the final sentences of the processes in which the prisoner is actually serving the sentence or is pending, under the prism of proportionality, taking into account the full content of the sentence in question". As it has been specified, "the convictions will not be reviewed ex officio when the sentence is suspended, without prejudice to doing so in the event that the suspension is revoked and before proceeding to the effective enforcement of the sentence whose suspension has been revoked" .

Faced with these decisions, the Court of Navarra has reported that it will not lower the sentences when the sentences that were imposed may also be taxable under the new legal framework established by law.

As he explained, "until the Supreme Court rules establishing jurisprudential doctrine in relation to the retroactive application of the law" the Provincial Court will apply the review criteria that they have agreed on in their conclave, which coincide with the interpretation of the General Prosecutor's Office of the State.

This Tuesday, the Supreme Court -in its ruling on the 'Arandina case'-- has explained that the law of 'only yes is yes' "may be applied to the benefit of the accused when a lower penalty is now set in those cases in which proceed". They have qualified, however, that it must be done "analyzing case by case, and not globally, both in matters pending trial, appeals and cassation and in criminal enforcement."

The Court of La Rioja announced two weeks ago that it was accepting the transitory provision of the Penal Code to not modify any of the 54 sentences that have already been reviewed after the new Law on the Guarantee of Sexual Freedom.

For its part, the Court of Las Palmas determined that final convictions for sexual offenses will only be reviewed ex officio when it is detected that the sentence imposed is greater than those contemplated in the new norm. Thus, it goes in line with the FGE.