2023-09-12 22:32:18
The law of ‘only yes means yes’ was born to turn into a norm the social indignation that aroused the first conviction of the members of ‘the pack’ of Pamplona, with thousands of people taking to the streets to denounce that they were convicted of abuses and not for rape. Less than a year after its entry into force, the judges of Navarra have used that same law to reduce the prison sentence of one of the rapists by one year. A decision and arguments that, according to different legal sources, conflict with what was established in several cases by the Supreme Court in recent months when analyzing dozens of reductions in sentences for sexual offenders.
The keys to the Supreme Court’s decision on ‘only yes means yes’: reductions but not generalized
Further
The case of ‘the pack’ of Pamplona was finally sentenced by the Supreme Court in 2019. The five men were sentenced to 15 years in prison each for gang raping a young woman in a doorway on Paulino Caballero Street in the capital. Navarra during the Sanfermines of 2016. The legal classification of events like these, until then unnoticed by public opinion, became the axis of the case: the Pamplona courts sentenced them to nine years in prison for abuses and the Supreme Court, finally, increased his sentence and for sexual assault.
Four years after that ruling, the case has returned to court thanks to the legal reform known as the ‘only yes means yes’ law. This is a rule inspired by the ‘la manada’ case that unified both crimes in a single chapter, that of sexual assaults, and that modified the prison ranges for many cases. To date, different judges have decided on more than a thousand sentence reductions and a hundred releases of sexual offenders based on this law. And these interpretations have also generated a deep crisis within the coalition Executive and a subsequent legal reform to stop the avalanche of downward revisions.
The lawyer of ‘the pack’ – who on June 21, 2019 entered the Supreme Court with nine years in prison for each client and came out with almost double that per head – obtained a victory this Tuesday by getting the Superior Court of Navarra, without unanimity, slightly reduced the sentence of one of the rapists: from 15 to 14 years in prison. With the vote against one of the members of the court, the judges have accepted that they were given a sentence “close” to the legal minimum possible at that time, and that their sentence must be adapted downwards because the new minimum limit was lowered even further. with the entry into force of the ‘only yes means yes’ law.
The two magistrates of the TSJ of Navarra, who already participated in the sentence that convicted them of abuse and not of sexual assault, reason that the new sentence has to be close to the minimum limit established by the new Penal Code. Leaving his sentence at 15 years in prison, they reason, “does not meet the parameter set by the Supreme Court when it classified the sentence imposed as very close to the legal minimum.”
The sentence of this Navarrese court is not the end of the case, and now it remains to be seen if the Prosecutor’s Office or the victim of ‘the pack’ take the reduction of the sentence to the Supreme Court and its criminal chamber. A room that in recent months has studied dozens of cases and has established parameters to analyze when the law of ‘only yes means yes’ implies a benefit for rapists and when it does not. And in several sentences he has made it clear that sentences cannot be reduced above the legal limit when the judges have reasoned why that minimum is not imposed, as is the case of ‘the pack’, and if those circumstances are maintained.
“The penalty is not reviewed”
Last June, the second chamber of the Supreme Court met in plenary session to study thirty reviews in application of the law and establish its jurisprudence. He did so at a time when there was no single criterion on the part of judges throughout the country and in the midst of confusion of figures about the scope of these reductions. The result for most cases was clear: if a rapist was given the minimum sentence, his new sentence must be adapted to the new Penal Code and, therefore, his prison sentence must be reduced to the new minimum sentence.
He did it this way, for example, when they studied the case of a thief from Ibiza originally sentenced to six years in prison for raping a woman during a home invasion. The Balearic courts imposed the minimum possible and the review reduced his sentence to the new legal minimum of four years in prison under the ‘only yes means yes’ law. The Supreme Court was clear when analyzing this case: “The imposition of the minimum sentence in accordance with the previous regulation entails the review of the sentence and the imposition of the minimum sentence in accordance with the most favorable current law.” From the six years before to the four years of the law of ‘only yes means yes’.
But that is not the case of ‘the pack’ of Pamplona. When the Supreme Court studied the case in 2019 and understood that they had committed a crime of sexual assault, it decided to impose 15 years in prison, somewhat above the legal minimum possible, and argued: “It is proportionate to the personal circumstances of the accused and the seriousness of the fact,” said the Supreme Court. They took into account, for example, “the conduct” of the accused after raping the young woman, “their attitude towards the victim” and factors such as the failure to repair the damage that affected, they said, the “punishability.” That is, they helped to graduate his sentence.
His role in the case during and after the rape, the Supreme Court said then, “increases the guilt of the unjust person, or the illegality of his conduct, which justifies the imposition of a sentence higher than the legally provided minimum, although very close to it. ”.
It is a relevant aspect because in recent months the second chamber of the high court has explained that in those cases, when a sentence is justifiably higher than the legal minimum, it is not possible to revise it downwards if it is still possible with the new law and it is a proportionate sentence. a sentence with Ana Ferrer as speaker, for example, spoke directly about the “unchangeability” of this type of sentences for rapists, despite the new norm. In another case studied by the plenary session, regarding a rape in Soriathe same reporting judge stated that “the review is not appropriate” when the trial court has imposed a sentence proportional “to the seriousness of the facts and the circumstances of the author” above the minimum possible.
Another more recent one with the signature of Vicente Magro He says it equally forcefully. If a court argues that a sex offender “does not deserve the imposition of the minimum sentence,” this implies that the sentence “is considered in accordance with the legal framework” and that “it is not reviewed.” You only have to “maintain” the minimum sentence if it was the one imposed by the court in the first place. If not, the Supreme Court has said on several occasions, it is not a simple question of arithmetic.
During the debates of the June plenary session that marked the way for the rest of the resolutions, a sector of the Supreme Court understood that an arithmetic calculation could be made as long as the specific circumstances of the case allowed a reduction to be justified. Another sector opted to limit itself to a proportionality analysis detached from the numbers. For example, he did agree to reduce the prison sentence of someone involved from 14 to 12 years. in a group rape in Cantabria although it was not a minimum sentence. He did so by analyzing the case, the ruling said, “in trend terms and not strictly arithmetic.”
Faced with these arguments, the TSJ of Navarra has opted for the reduction, understanding that the new minimum limits are lower than before and that maintaining the sentence at 15 years “would no longer maintain the proximity or proximity to the legal minimum of the planned penological range.” which the Supreme Court argued when condemning ‘the pack’ of Pamplona for sexual assault.
I vote against a judge
It remains to be seen if the case of this member of ‘the pack’ from Pamplona reaches the Supreme Court. It will depend on whether the victim, the Prosecutor’s Office, the Pamplona City Council or the Government of Navarra decide to appeal, as well as we will also have to wait to know if other convicts in the same case request the same review of their sentence after the success of their partner.
The decision has been made with the favorable vote of two magistrates who were already part of the sentence that in 2018 confirmed the nine-year prison sentences for sexual abuse of the five Sevillians. One of them, Francisco Javier Fernández, supported the decision to maintain his sentence for abuse. The other, Joaquín Galve, then spoke out in favor of convicting them of sexual assault and was in the minority by requesting a 14-year prison sentence that he had just imposed in the review phase.
The third judge of the court has voted against and has opted to maintain the 15 years in prison that the Supreme Court signed. Esther Erice, a magistrate expert in sexist violence and former president of the Provincial Court of Navarra, explains that reviews like this cannot be signed “based on mere criteria of arithmetic proportionality” or in “abstract”.
For this judge, the 15 years imposed by the Supreme Court continues to be “a sentence higher than the minimum although very close to it,” taking into account that the maximum can reach close to 19 years in prison. “The penalty that is maintained is not more burdensome than the one that is also imposed” with the new law, explains Erice in her private opinion. If it reaches the Supreme Court, any possible appeal will become a priority as it is a case involving a prisoner.
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