The Supreme Court endorses the AN's decision to apply a harsher sentence to ETA member Beinat Aguinagalde

Remember that it is the prison surveillance judge who must assess the evolution of the prisoner

MADRID, 17 Ene. (EUROPA PRESS) -

The Supreme Court (TS) has endorsed the decision of the National Court (AN) to apply an article of the Penal Code (CP) that means maintaining a tougher sentence compliance regime for ETA member Beinat Aguinagalde, who counts among his sentences a to 32 years in prison for murdering the socialist councilor Isaías Carrasco in March 2008, and who was seeking to obtain prison benefits.

In a sentence presented by magistrate Pablo Llarena, to which Europa Press has had access, the Criminal Chamber of the Supreme Court rejects the appeal filed by Aguinagalde against an order issued by the AN almost a year ago, on January 21, 2022, to establish how he must serve the sentences imposed for the four sentences that have been consolidated.

The Criminal Chamber ruled at the request of the 'La Moraleja' Penitentiary Center, located in Dueñas (Palencia), which asked the judicial headquarters to clarify "certain aspects related to the execution of custodial sentences" against Aguinagalde due to the change operated in article 78 of the CP with the penal reform of 2015.

The Supreme Court explains that the doubt is due to the fact that when the former ETA member perpetrated the crimes, said precept designed "a regulation that did not subject the aggravated compliance regime to the discretionary decision of the sentencing judge or court but rather imposed it as unavoidable". while the wording of 2015, in force when the AN calculated the accumulation of sentences, says that it "may" impose it, leaving it to its discretion.

The AN determined in 2018 that the maximum effective compliance limit for Aguinagalde was 40 years, although in 2021 it declared that, by virtue of this power to order an aggravated regime, prison benefits had to be applied over the compliance limit of the total of the sentences imposed in the different accumulated sentences, that is, over 107 years, a decision that was ratified in the appealed order.

In his challenge, Aguinagalde defended that, although he agreed with the AN that the new wording of article 78 should be applied to him, due to the principle of "retroactivity favorable to the accused", "he is wrong when he affirms that it is not applicable to the inmate the ordinary regime of serving the sentence in order to obtain the penitentiary benefits".

According to him, the AN "should have investigated the evolution of the penitentiary treatment of the prisoner to evaluate the opportunity to establish or exclude the general regime of compliance, without being able to deny the application of the most favorable regime without knowing the progress of his rehabilitation and, less even, that for the granting of this regime the defense can be required to prove the reduction in the dangerousness of the prisoner" because it would be reversing the burden of proof.

The Supreme Court agrees that in order to agree on the aggravated regime for serving the sentence, the sentencing court must carry out a "reinforced motivation", taking into account "considerations related to the dangerousness of the prisoner, understood as the probability, more or less consistent, of the future commission of new criminal acts".

However, it emphasizes that these considerations must be made "in the sentence declaration phase, that is, when the court perceives the reality and seriousness of the fact." One moment, he emphasizes, in which the assessment of the "evolution" of the prisoner with respect to his "criminal profile" cannot be introduced due to "a prison treatment that has not yet begun."

Thus, it indicates that "the consideration of these subsequent circumstances is attributed to the prison supervision judge (article 78.2), who assumes the power to correct and modify the mode of execution initially imposed towards a general regime, less onerous for obtaining prison benefits , when the formative treatment has meant an evolution for the prisoner that mitigates the prognosis of dangerousness".

Consequently, it agrees with the AN, establishing that "prison benefits (...) must be applied to the prisoner in the terms expressed in article 78.1 of the Penal Code, without prejudice to the fact that the information that the Penitentiary Administration may provide in In the future, once the parties have been heard, it will allow the prison supervision judge to redirect the mode of compliance to the general regime, if it is the case and if it is considered convenient".