María Salmerón, the woman from Seville honored in 2015 by the Government of Spain as a victim of gender-based violence, and who must go to jail in a few days to effectively serve the nine-month prison sentence to which she was sentenced in firm in 2020 for a continued crime of serious disobedience to authority in the visitation regime with the father of her daughter, convicted of gender-based violence, has filed an appeal with the Ministry of Justice for the non-cancellation of the criminal record that was denied. It should be remembered that the Government rejected her last request for pardon at the end of April and that María Salmerón has appealed in court the order of voluntary admission to prison to serve the imposed prison sentence, understanding that her criminal record has been canceled and, therefore, Therefore, there would be no recurrence to apply.
Entry into prison or new pardon? María Salmerón faces two parallel processes after twenty years fighting in court
Salmerón deposited a few days ago in the court’s account the amount of 3,000 euros set in a sentence for civil liability. Now, he goes to the Ministry of Justice to request the cancellation of criminal records and the retroactive application of Organic Law 8/2021, of June 4, on the comprehensive protection of children and adolescents against violence, which modified the articles 94 and 158 of the Civil Code. “What has been happening to me would not fit into a true social and democratic state of law,” lamented the woman in her letter, describing the action carried out by the Administration in her file as “disastrous action.”
“I was left in the most absolute defenselessness by having been deprived of arguing, and proving, everything that was of interest to me,” he insists. Salmerón, convicted of the crime of disobedience in April 2013 for acts similar to those of the sentence that can lead to prison and who has received up to three pardons from the Government (the one before the last one denied was revoked by the Supreme Court) , was sentenced in June 2019 by the Court of Seville (confirmed in May 2020) for failing to comply “repeatedly, preventing and making ineffective the visiting rights of the other parent” in the visitation regime established by the court.
Salmerón alludes to his judicial journey in detail and argues that “since the sentences had been finalized on March 11, 2009, in the first, and on October 28, 2014, in the second, they would have been canceled on March 10. 2011 and October 27, 2016, respectively. Or at most June 30, 2017, in both cases. As stated in the updated criminal history sheet where in number 15 it is stated, and according to the updated criminal history sheet, the extinction occurred on December 16, 2021. He points out in his brief that “the execution processes were unduly and excessively delayed” and that “that delay should never harm me.”
Regarding the retroactive legal application, the document says that in order to commit the crime for which he was convicted, serious disobedience, three requirements must be met, including that the order be legitimate. “After the reform in the precepts to which we have referred, arts. 544.ter. 6 and 7 of the LECRim, 94 and 158 of the Civil Code, today it would no longer be. Because my conduct after that reform would not constitute a crime, and, therefore, would no longer be unlawful, nor guilty, nor atypical, nor punishable, ”he concludes.
In his opinion, as he argues before the Ministry, “said reform should have been applied to the sentences for which my criminal record is kept, and, as established in article 18 and following of Royal Decree 95/2009, of February 6, which regulates the system of administrative records in support of the Administration of Justice, my records have had to be cancelled, even ex officio, and it is finally up to the Ministry of Justice to resolve the procedure for the cancellation of registrations, whatever be the way of initiating the procedure, which in this case, and not having done it ex officio, as it should have been, that Administration, was at my request. And so my record should have been expunged.”
“Starting, only by way of hypothesis, that with the preceding regulation the act was a crime and would have ceased to be as a result of the change made in the non-criminal norm that integrates the content of the punitive type, retroactivity must also be applied”, sentence.