The TSJR reduces the sentence from 7 to 4 years in prison for a person convicted of rape in light of the Yes is Yes Law

It is the first sentence that is dictated in La Rioja in which the penalties are modified downwards

LOGROÑO, Dec. 23 (EUROPA PRESS) -

The Civil and Criminal Chamber of the Superior Court of Justice of La Rioja has handed down on appeal the first sentence in La Rioja in which the sentence is reduced from 7 to 4 years in prison for a person convicted of sexual assault in light of the new Organic Law 10/2022 known as the Law of Yes is Yes.

The TSJR has partially admitted the appeal filed by the defendant against the sentence handed down by the Provincial Court of Logroño on June 22 of this year, in which he sentenced a 32-year-old man to 7 years in prison for the crime of sexual assault. with penetration. The victim was a co-worker.

At the end of the working day, the defendant along with the victim and other friends decided to go out. After drinking alcohol in some establishments in Logroño, the convicted man convinced the victim to accompany him to his house and once there he had non-consensual penetrative sex.

The TSJR Court rejects all the reasons for the appeal regarding the lack of evidence against the accused and his presumption of innocence, but reviews the imposition of sentences agreed by the Provincial Court of Logroño and considers that the accused should have been sentenced to the minimum sentence that established at that time the current legislation, that is, to 6 years in prison.

The sentence of the Provincial Court opted for a sentence that "exceeds the legal minimum punitive limit, assessing a single element, the violence exerted on the victim." However, the Civil and Criminal Chamber of the TSJR does not share this point because it argues that "no other mention is made in the appealed judgment of the personal circumstances of the defendant or of the seriousness of the fact.

The TSJR adds that "the sentencing Court has not specified the elements, factors or circumstances unrelated to the type, which imply greater concurrent guilt in the case."

The TSJR concludes in this sense that "in the absence of extenuating or aggravating circumstances, in view of the personal circumstances of the defendant and the greater or lesser seriousness of the act, it is for this reason that this Chamber considers that there are not sufficient reasons that advise exasperating the penalty for impose beyond what constitutes the legally provided minimum".

The entry into force of the Law of Yes is Yes has meant a change in the penological framework provided for the penal type of sexual assault with penetration, going from 6 to 12 years in prison that was established before the reform to a current penological range ranging from 4 to 12 years in prison.

For this reason, the TSJR ex officio applies the current regulations and imposes a sentence of 4 years in prison on the defendant "because it is the minimum legal sentence provided for in the legal text that is most favorable to the prisoner."

The Court also lowers the accessory penalties imposed in the ruling of the Provincial Court of Logroño because it argues that "once it has been determined that one penalty is more beneficial than another, it must be considered globally; that is, not only the main penalty but also also in those accessories that it entails".

Thus, the Chamber of the TSJR reduces from 15 to 6 years the prohibition for the convicted person to approach less than 500 meters from the victim, as well as the reduction from 15 to 6 years of the prohibition to communicate with the victim by any means or procedure. Regarding probation once the sentence has been served, the Chamber maintains the duration of 5 years that the Provincial Court imposed in its sentence.

The Superior Court of Justice of La Rioja bases the reduction of the sentences in light of the new legislation because it applies the Fifth Transitory Provision of the Organic Law 10/1995 of the Criminal Code, which provides that "Judges or Courts will proceed to review the final sentences and in which the prisoner is actually serving the sentence, applying the most favorable provision considered exhaustively and not by the exercise of judicial discretion".

A transitory one that, as specified in the Judgment of the TSJR, is in force as established in the Judgment of the Supreme Court, Chamber 2, 1419/2011 and the Orders of the Supreme Court, Chamber 2, of November 24, 2011 and November 10, 2011.

In addition, the TSJR includes in its resolution the provisions of the sentence recently handed down by the Supreme Court in the case known as La Arandina, in which the high court provides that "the accommodation of the sentence to the new criminal text after LO 10/ 2022 is mandatory because the retroactivity of the criminal law that is most favorable to the accused is applied by virtue of the most beneficial subsequent law (application of article 2.2 of the Criminal Code) as in this case, which reaches a process of review of sentences not only to those that are in the execution phase, but also to those that are in the sentencing phase, either in the middle of the oral trial, or by virtue of an appeal resolution - as in this case- or appeal, assessing whether the penalty to be imposed may be more beneficial".