The “undesirable effects” of the law of comprehensive guarantee of sexual freedom, better known as the law of ‘only yes means yes’, have ended up affecting the paradigmatic case of ‘the Pack of Pamplona’, which was precisely the one that originated the questioned reform promoted by the Ministry of Equality that has already added more than 1,100 sentence reductions and at least 117 releases of sexual offenders according to the latest official data. In application of the norm, the Superior Court of Justice of Navarra (TSJN) has reduced by one year – from 15 to 14 years – the prison sentence imposed by the Supreme Court to one of the five convicted of the group rape in the Sanfermines of 2016.
Contrary to the criteria adopted last February by the Provincial Court of Navarra, which was the one that tried the case, the Civil and Criminal Chamber of the superior court has upheld the appeal of the defense of the convicted Ángel Boza and has reduced the sentence.
In the car released this Tuesday, the TSJ explains that the maximum penalty remains unchanged, but the minimum decreases by 1 year and 3 months, going from 14 years, 3 months and 1 day to 13 years. “Consequently, the 15 years of prison imposed remain 2 years above the possible minimum that, effectively, are within the possible penological arc, but which, in the opinion of the majority of this Chamber, no longer meets the parameter set by the Court Supreme Court in its ruling when it described the sentence imposed as ‘very close to the legal minimum’, or as ‘a sentence higher than the legally provided minimum, although very close to it,’ he argues.
The resolution, which can be appealed before the Supreme Court, has been adopted by the magistrates Joaquín Galve Sauras, president of the TSJN and speaker, and Francisco Javier Fernández Urzainqui. The third member of the Chamber, Judge Esther Erice Martínez, has formulated a dissenting opinion in which she advocates dismissing the review of the sentence. The result does not reach, however, the total reduction that Boza requested so that his sentence could be reduced to 13 years and 9 months.
In the judicial resolution, the two magistrates explain that the reform carried out in the aforementioned law “is more favorable” for the convicted person since the aforementioned Organic Law has significantly reduced the minimum penalty corresponding to the crime committed.
In this way, they consider it “reasonable in accordance with the law, respectful of the basic legal rules for determining the sentence and accommodated to the criteria of proportionality” provided by the Supreme Court itself in the sentence under review, to reduce the sentence imposed from 15 years in prison to 14 years in prison. The reduction occurs despite the reform of Irene Montero’s law carried out a few months ago at the proposal of the PSOE, since it does not affect acts committed before the entry into force of the latest changes.
“Maintaining the 15-year sentence imposed in the sentence would no longer maintain the proximity or closeness to the legal minimum of the planned penological arc, which the sentencing Chamber (the Supreme Court) considered and set as a parameter or reference in its individualization. Said another way, would distance her from him, aggravating the relative situation of the prisoner who received 9 months in prison above the minimum then provided, he would be subject to a sentence 2 years higher than the minimum that would correspond to him in accordance with Organic Law 10/2022,” the judges explain.
Supreme Court Jurisprudence
Regarding the admissibility of the review of sentences imposed by application of the more favorable subsequent Law, the magistrates add that the jurisprudence of the Supreme Court has been considering less burdensome or more favorable or beneficial the new penalties which, while maintaining the upper limit of the applicable range, reduce the threshold or lower limit of its temporal extension.
Law more favorable to the prisoner
The judges highlight that it is “clear that the penological range derived from Organic Law 10/2022 is more favorable or beneficial for the prisoner than that resulting from the legality repealed by it.”
They explain that the Supreme Court ruling justified this limited extension of the sentence over the legal minimum with the argument that it was proportionate to the personal circumstances of the accused and the seriousness of the facts; but, also, that its result (the duration of the sentence imposed) “is very close to the legal minimum”, to reiterate below that the consideration of these circumstances “justifies the imposition of a sentence higher than the legally provided minimum, although very close to it.”
Specifically, they add, in a range of 3 years and 9 months, the sentence increases by 9 months. “The duration of the sentence imposed is linked to the ‘legal minimum’, making its ‘proximity’ or ‘closeness’ to it a parameter or reference criterion that cannot be dispensed with in the review of the sentence, being as it should be respectful of the criteria for individualizing the sentence applied in the sentencing sentence,” the magistrates reiterate.
dissenting vote
The resolution has the dissenting vote of Judge Esther Erice, who considers that the resulting penalty cannot be determined. “according to mere criteria of arithmetical proportionality.”
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For this judge, in no case is the request made by the appellant appropriate, since even in a purely arithmetic application it is not appropriate, given that within the penological range that the sentence establishes of 14 years, 3 months and 1 day to 18 years, “being unnecessary at the time of the sentencing, greater precision in the maximum foreseen, since the sentence was imposed in its upper half.”
In this regard, it highlights that with the same arithmetic criterion, one fifth of the punishment resulting from the application of LO 10/2022 – from 13 years and one day to 18 years and 9 – should be added to the new legal minimum -13 years and 1 day-. months -, “so the imposition of the sentence of 13 years and 9 months in prison requested in the appeal is not appropriate, since adding one fifth of this range to the legally provided minimum results in a sentence of 14 years, 1 month and 25 days, higher than that interested by the defense”.