Legally clarifying whether the death of the young Samuel Luiz was a homophobic crime implies direct consequences for the years in prison resulting from the sentence. If the aggravation of homophobia is proven in court as a hate crime, the prison sentence will be higher. It is not a simple sum of penalties as typified by the Penal Code. The concurrence of two crimes causes the punishment to be based on the higher part of the penalties provided for the more serious of the two.
Last hours in Samuel’s life: reconstruction of the murder that raised Spain against homophobic violence
Hence the importance of the police investigations into the fatal beating that at least seven people inflicted on Samuel Luiz in A Coruña at dawn last Saturday and which has sparked massive protests against homophobic violence. Two men and a woman, born in and from the city, have been arrested as alleged perpetrators of the attack. The Government Delegation does not rule out new arrests in the next few hours. In light of the current Penal Code, there are three articles that affect the case: homicide, murder and hate crime. The latter would apply if the homophobic nature of the crime is finally proven, as defended by the victim’s friends, one of whom was with him that night.
Hate crime is regulated in article 510 of the Penal Code and is subject to penalties of 1 to 4 years in prison and a fine of 6 to 12 months. The epigraph a) of its first section refers that the punishment will be directed to “those who publicly foment, promote or incite directly or indirectly to hatred, hostility, discrimination or violence against a group, a part of it or against a specific person by reason of your belonging to it, for reasons […] of their sexual orientation or identity. “In addition to the aforementioned penalties, there will be” special disqualification for an educational profession or trade, in the field of education, sports, and free time “for between three and ten years after the completion of the sentence of deprivation of Liberty.
Criminal lawyer José Luis Gutiérrez Aranguren explains to elDiario.es that section two of article 510 would also be related to what happened in A Coruña, since it punishes with six months to two years in prison and fines of six to twelve months to ” those who harm the dignity of people through actions that involve humiliation, contempt or discredit […] because of their sexual orientation or identity. “” When there is a concurrence of two crimes, “Aranguren recalls,” the higher part of the penalty of the more serious is applied. “And in the murder of Samuel Luiz, the most serious is the one related to his death.
Homicide and murder
The Penal Code differentiates between homicide and murder. The first is collected by article 138, which defines it with a concise “one who will kill another.” The penalties, from 10 to 15 years in prison. The second, murder, appears in article 139. And it is, “because of what is transcending,” assures the criminal lawyer Aranguren, the one who most closely matches what happened.
“Anyone who kills another in one of the following circumstances will be punished with a prison sentence of 15 to 25 years, as a person guilty of murder: with treachery; for price, reward or promise; with cruelty, deliberately and inhumanly increasing the pain of the offended; to facilitate the commission of another crime or to avoid that it is discovered “, indicates the legal text. If there are more than one circumstances that concur, the penalty will be imposed in its upper half. The lawyer Aranguren understands that in the death of Samuel Luiz “one can speak of treachery and even cruelty.”
The criminal prosecutor does not appreciate reasons to appeal article 140 of the Penal Code, which develops the so-called reviewable permanent prison.