The Supreme Court considers it “mandatory” to review the sentences after the law of yes is yes


Madrid (EFE).- The Supreme Court has clarified that the review of sentences in cases of sexual crimes is “compulsory” after the entry into force of the “law of only yes is yes”, because it is a law ” the most beneficial”, that is to say the application to the accused of the retroactivity of the most favorable criminal law.

The Criminal Division of the Supreme Court released the sentence, which was brought forward on November 29, which sets a nine-year sentence against two former Arandina Football Club players for sexually assaulting a minor in 2017, that is to say one year less than what the prosecution requested when the court understood that the most favorable standard must be applied, namely the “law of the only yes is yes”.

The Supreme Court upheld the prosecution’s appeal by eliminating the mitigation of proximity in age between the defendants and the victim, which had been applied by the Superior Court of Justice of Castilla y León, but did not impose the ten years which the prosecutor wanted because the law of the only yes is yes allows to inflict nine years.

“Adjusting the proportionality of guilt to the taxable sentence.”

Regarding the law of integral guarantee of sexual freedom and concludes, the Supreme Court says that “the adaptation of the sentence to the new criminal text after LO 10/2022 is mandatory because the retroactivity of the criminal law most favorable to the accused is applied by virtue of a more advantageous later law, as happened in the present case”.

And he specifies that this “results in a process of review of sentences not only for those who are in the execution phase, but also for those who are in the sentencing phase, either in the middle of the oral trial or by virtue of the decision of appeal or appeal, assessing whether the sentence to be imposed may be more advantageous” under the new law.

For this reason, in the case of La Arandina, “the sentence now imposed is the result of an adjustment of the proportionality of guilt to the taxable sentence”.

On a more technical level, he explains that the facts – with the new regulations – constitute an offense of sexual assault on a minor under the age of 16 with carnal access.

With the previous regulations, the range of sentences went from 8 to 12 years in prison in the upper half, i.e. 10 to 12 years, and now this sentence has been reduced to between 6 and 12 years in the upper half, that is, 9 to 12 years of maximum criminal reproach.

The Supreme Court specifies that, in this arc, the Public Prosecutor’s Office proposed to request the minimum sentence at the time applicable, 10 years then, but it turns out that this minimum sentence is now 9 years, which the Chamber applies “because it is now the minimum taxable and more advantageous for the inmate.

Of course, the magistrates recall that “the sentence which now corresponds after LO 10/2022 (…) is one year in prison less than that which would have corresponded with the text of the previous regulation”.

The sentence includes a particular opinion of the magistrate Ángel Luis Hurtado who understands that the analogical attenuation of the closeness in age between the defendants and the victim should have been maintained, although he agrees with his colleagues that the new regulation should be applied as it is more beneficial to the inmate.


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