The TSJN reduces a sentence of sexual abuse by six months due to the application of the new law

It is the first resolution of the Civil and Criminal Chamber of the TSJN on the appeals presented

PAMPLONA, 28 Feb. (EUROPA PRESS) -

The Superior Court of Justice of Navarra (TSJN) has issued the first resolution on an appeal filed against a refusal to review the sentence, and has reduced the sentence imposed on a convicted person from 14 years and 3 months to 13 years and 9 months in prison for a continued crime of sexual assault on a minor.

The Civil and Criminal Chamber of the TSJN considers that the new range of the prison sentence established in Organic Law (LO) 10/2022, of September 6, which modified the previous wording, is more favorable for the convicted person, according to informed the TSJN.

The judicial resolution, which can be appealed to the Supreme Court, has been issued with the favorable vote of the president of the TSJN, Joaquín Galve Sauras, and magistrate Francisco Javier Fernández Urzainqui, who has been the speaker. The order has the dissenting particular vote of Judge Esther Erice Martínez, who, like the Public Prosecutor, advocated maintaining the sentence imposed.

The First Section of the Provincial Court dismissed last December the request for a review of the sentence raised by the defense, which requested a sentence of 13 years and 9 months in prison, six months less than those set in the sentence.

The appellant was sentenced in November 2017 to 14 years and 3 months in prison, as the perpetrator responsible for a continued crime of sexual assault on a child under 16 with carnal access and kinship prevalence, typified in articles 183.1.2.3 and 4. d) and 74 of the Criminal Code (CP), in its wording prior to the reform of LO 10/2022.

The taxable penalty in abstract according to that legality was imprisonment from 12 to 15 years (art. 183.1, 2 and 3), which should have been imposed in its upper half, from 13 years and 6 months to 15 years, due to the prevailing (art. 183.4.d) and, within that range, at least in the upper half, from 14 years and 3 months to 15 years, due to criminal continuity (art. 74), which determined the imposition of this final sentence in its legal minimum of 14 years and 3 months, without the sentence being appealed by the prosecution.

In accordance with the new legality, derived from LO 10/2022, the conduct object of the sentence (the same fact that gave rise to it), is subsumable in articles 181.1, 2, 3 and 4.e and 74 of the CP, as a crime of continued sexual assault on a child under 16 years of age with prevailing kinship.

The custodial sentence susceptible to imposition for assault with carnal access in accordance with said regulations is imprisonment of 10 to 15 years (art. 181.1, 2 and 3), which should be imposed in its upper half, 12 years and 6 months to 15 years, due to prevailing (art. 181.4.e); and, if they remain within that range, in the upper half, from 13 years and 9 months to 15 years, due to criminal continuity (art. 74).

In its resolution, the Chamber ensures that the imposition of the prison sentence in the minimum legal extension reveals that the Provincial Court, at the time of issuing a sentence, "did not appreciate in the individualization of the sentence reasons or circumstances that justified a more prolonged deprivation of liberty over that derived from the minimum limit of the prison susceptible of imposition for the continued crime". And it also highlights that the prosecutor did not appeal that the sentence be set at this minimum limit, which allows us to deduce that the sentence was "adequate and proportionate."

In her particular opinion, the magistrate states that the Provincial Court assessed in the determination made in the sentence that there had been many acts of sexual abuse over the years, although the violence exercised to achieve carnal access was not of a large entity, for which reason it considered it proportionate to impose a sentence of 14 years and 3 months in prison.

"It is noteworthy that the sentence does not contain any reference to the imposition of the sentence in the legal minimum, but rather affirms that it considers it proportionate to impose the sentence of 14 years and 3 months, without maintaining that the perpetrator of the facts is a creditor of the minimum taxable sentence, expressly mentioning the reiteration of the acts of aggression over the years, to which it should be added that the sentence states that these occurred since the minor was a girl, the last attacks being determined when she He was 12 years old, and the condition of father of the defendant's girl, which gave the facts a special seriousness", points out the magistrate.

The sentencing Chamber, it adds, includes in detail in the resolution that is now appealed that LO 10/2022, of September 6, typifies in art. 181 sexual assaults on minors under 16 years of age and that the conduct subject to condemnation, carnal access, appears typified in art. 183.4 e) punished with a prison sentence of 10 to 15 years in its upper half, that is, from 12 years and 6 months to 15 years, and in turn in its upper half for criminal continuity, for which the penalty is 13 years and 9 months to 15 years in prison.

The magistrate reiterates that a new individualization of the sentence is not appropriate since there is no appreciable lack of proportionality of the same in accordance with the new legality, for which reason, she concludes, she considers the retroactive application "inadmissible".