The State Attorney General’s Office has issued a decree on Monday on the criteria that prosecutors must follow in cases of review of sentences for sexual offenders in application of the Law of Comprehensive Guarantee of Sexual Freedom, known as the law of ‘only if it is Yes’. The instruction establishes that sentences will not be reviewed when the penalty is susceptible to being imposed with the new law. In other words, the review will only proceed when the sentence exceeds in the abstract that which would correspond to the application of the reform.
Why can some penalties be lowered after the ‘only yes is yes’ reform? Keys of the new law
The Public Ministry affirms, however, that each procedure must be analyzed individually and “avoiding automatisms” that prevent the assessment of the circumstances of each case. The document is published in full controversy over the decision of some territorial courts to reduce sentences for those convicted of crimes of sexual violence after the entry into force of the norm.
The decree, in line with what was expressed by the Prosecutor’s Office in cases of La Rioja or the Supreme Court, explains that the review will proceed when the sentence of a sex offender “exceeds in the abstract” that which could correspond to him with the new Penal Code. Final sentences will not be reviewed when the number of years in prison imposed “is also susceptible to being imposed under the new legal framework”, expressly rejecting the Prosecutor’s Office that the sentences are automatically adapted “in arithmetic proportion to the new punitive framework”.
The transitional provision
The legal debate has focused, to date, on article 2.2 of the Penal Code, which allows a conviction to be retroactively revised downwards if a legal reform benefits the prisoner. But also in the absence of a transitional provision that, traditionally, is included in the reforms of the Code to limit the ability of judges to sign these reductions. In an interview with elDiario.es, the Government Delegate against Gender Violence, Victoria Rosell, stated that none of the organizations that reported on the rule or the parties that participated in the process warned about this possibility.
In recent weeks, courts across the country have applied the new law 10/2022 known as the ‘only yes is yes’ law and in cases such as the higher courts and courts of Madrid, the Balearic Islands or Galicia they have chosen to lower these sentences while that in La Rioja the response of the judges to more than fifty cases examined ex officio has been negative.
The controversy over the releases based on the judicial interpretation of the new law have reached the top of the coalition Executive. The President of the Government, Pedro Sánchez, stated a few days ago from Bali that they would wait for the courts to unify doctrine to decide if the law of “only yes is yes” was subject to any modification, something that the Minister of Equality, Irene Montero, rejects. . Several courts have interpreted to date that the norm allows for the reduction of sentences retroactively, while others understand that the restrictions of the transitory provisions of previous versions of the Penal Code can be applied.