TSJA reduces the sentence of a man for abusing his great-niece after the Law of 'yes is yes' in Cádiz by one year in prison

CADIZ, Jan. 17 (EUROPA PRESS) -

The Civil and Criminal Chamber of the Superior Court of Justice of Andalusia (TSJA) has handed down a sentence in which it reduces from ten years to nine years and one day in prison the sentence imposed on a man for a crime of sexual abuse committed on his minor great-niece, in a town in Cádiz when applying the new law because it was more favorable for him.

As explained by the TSJA in a note, in the sentence, it dismisses the appeal filed by the defendant's defense and confirms the sentence of the Provincial Court of Cádiz with the exception of the prison sentence imposed, which reduces from ten years to nine years and one day "according to the application of the rule most favorable to the convicted person".

The Provincial Court of Cádiz sentenced the defendant for a crime of sexual abuse of a child under 13 years of age and imposed ten years in prison, the prohibition to communicate and approach less than 200 meters from the victim for eleven years, five years of probation that will be executed after the prison sentence and the payment of compensation of 15,000 euros, pronouncements that, with the exception of the prison sentence, are now confirmed by the TSJA.

In its sentence, the Fourth Section of the Court of Cádiz, which acquitted the defendant of an offense of exhibitionism, reports that the defendant is the minor's great-uncle, who in summer spent days at her grandmother's house in a town in Cádiz, where the convicted person also had a house with interior communication between the patios of both, with the whole family living together "regularly and assiduously."

In this way, and on an unspecified date in August 2015, when the victim was 13 years old, he went with the convicted person in his car to a gas station to buy a magazine, so that when they returned and while the defendant was driving, he groped the minor.

Upon arriving at the chalet, and when the defendant verified that the mother of the minor had not yet arrived, he continued to wander around the area, until he verified that the mother had returned, at which time he went to the chalet and when he arrived he stopped touch the minor and told her: "Until you stop crying we won't go down".

The magistrates of the Civil and Criminal Chamber of the TSJA fully confirm the sentence but, due to the entry into force of Organic Law 10/2022, of September 6, on the Comprehensive Guarantee of Sexual Freedom, they are forced to resolve ex officio "if the fundamental principle of criminal law of application of the most favorable sentence is applicable to the case, in the time space existing between the one contemplated by the applied norm and the one contemplated for the same conducts by the law currently in force".

The TSJA has revealed that "the penal range for the crime for which the appellant has been convicted is not the same" after the reform "taking into account the specific aggravated modality applied and regulated in the same way in the precepts" cited in the sentence, so that "the conclusions that would be reached from proceeding to a review of the sentence could not be those reached by the sentencing court in the individualization that it carries out in the appealed sentence".

In the judgment of the TSJA, dated last December 21 and against which it is possible to file a cassation appeal before the Supreme Court, the magistrates recall that, in their judgment, the Court of Cádiz imposed a ten-year prison sentence, " resulting from the then legally provided for from eight to 12 years in its upper half (ten to 12 years), and its minimum extension of ten years".

"Now, to those same facts, with the new regulation contained in the currently applicable law and in the applicable precepts, a prison sentence of nine years and one day would correspond, resulting from the now legally provided six to 12 years in its upper half (nine to 12 years), and its minimum duration of nine years and one day", say the magistrates, concluding that, consequently, "it is appropriate in accordance with the law to agree to the revision of the sentence, setting it at nine years and a day in jail."