Review of penalties for amendments to the Penal Code

The three basic rules are: a) Sanction norms that are less favorable to the sanctioned citizen and those who restrict or limit rights can never be retroactive, that is, they can never have a retroactive effect. time. This is how it is imposed in our Magna Carta; b) On the contrary, sanction norms that are more advantageous to the sanctioned citizen have a retrospective effect, that is, they allow reconsideration of previously imposed sanctions with the application of a stricter regulation; and c) In general, it will not have retroactive effect unless the law expressly states otherwise and always abides by the two preceding rules.

On the occasion of the enactment of Organic Law No. 10/2022 of September 6 on the Comprehensive Guarantee of Sexual Freedom, commonly referred to as the “only yes is yes” Act, dozens of downward revisions are being made for various penalties. sexual crimes. The Minister for Equality called judges and judges “sexist” for such decisions, and spoke of his political party “fachas con toga”. Such reactions and statements, which do not befit those who have state responsibilities in a Democratic and Constitutional State, deserve to be described as unfair.

2.2 of our Penal Code. The article states that “penal laws in favor of the accused will have retroactive effect even if a final sentence has been given when they come into force and the person is serving that sentence.” While the Constitutional Court is reluctant to associate the most favorable rule of non-retroactivity with the Constitution, the fact is that the European Court of Human Rights has argued that article 7.1 of the European Convention on Human Rights is not only the non-retroactivity of adverse criminal laws, but also implicitly the most favorable penal code retroactively. the principle of incompetence. Also collected by Art. Article 49.1 of the Charter of Fundamental Rights of the European Union (“Likewise, a heavier penalty cannot be imposed than at the time the crime was committed. If the law provides for a lighter penalty after this crime, it will be applied”) and thus appeared in art. International Covenant on Civil and Political Rights 15.1, last paragraph of “If the law provides for a lighter sentence after the crime has been committed, the offender benefits from it”).

The absolute truth is that Organic Law No. 10/2022 of September 6 on the Comprehensive Guarantee of Sexual Freedom has changed the regulation of crimes against sexual freedom, thus eliminating the distinction between sexual assault and sexual abuse so far, and this new Configuration has established some new penalties.

No crime carries a single figure as a possible punishment. Judges always have a range or fork to weigh the seriousness of each case, paying attention to the aggravating, mitigating, or circumstances. Thus, for example, Article 138 of the Penal Code states that “anyone who kills another shall be sentenced to ten to fifteen years’ imprisonment for the crime of manslaughter”; Article 240 affirms that “anyone guilty of forcible robbing shall be punished with imprisonment from one to three years”; o According to Article 404, “Any authority or public official who arbitrarily decides on an administrative matter knowing his injustice is prohibited from working in the public sector or being a civil servant, and is punished with a special disqualification for using his passive right to vote.” for a period of nine to fifteen years. Therefore, the judges determine a certain figure within this minimum and maximum penalty, taking into account the above-mentioned circumstances of the case.

The new regulation created by the Organic Law No. 10/2022 provides for lower minimum penalties than those envisaged in the previous regulation. If the options for punishing a crime are expanded by only lowering the minimum sentences, we must conclude that those sentenced to sentences under the previous Penal Code, which had several years’ imprisonment in this minimum range, should certainly benefit from this reduction of sentence. The same would happen if the previous crime was eliminated (sexual abuse) and replaced by a new modality with lower minimum penalties than the previous ones.

A similar thing would happen if, as announced, the crime of sedition is finally eliminated and replaced by a variant of public disorder that assigns a lower penalty. The news about the effects of the events of 1 October 2017 on the convicts are made public, assuming that this will inevitably mean their sentences are reduced, on the other hand, a view that is fiercely defended. from certain political sectors. Well then: The case of Organic Law 10/2022 is no different.