The legal system must not freeze in place, frozen by the values and realities of any single historical moment. The regulation of human coexistence and social relations evolves with time, and laws must respond to the circumstances of each era. Codes and standards should be reorganized as instruments for progress and improvement. A key question in any reform proposal is how the normative changes relate to past facts that were judged under different rules.
The three fundamental principles are: a) sanction norms that are less favorable to the punished person and those that limit or curtail rights can never be retroactive, meaning they cannot have a retroactive effect. This is enshrined in the Magna Carta. b) Conversely, sanction norms that are more favorable to the punished person have retroactive effect, allowing reconsideration of previously imposed sanctions under stricter regulation. c) In general, retroactivity does not apply unless the law expressly states otherwise and always respects the two preceding rules.
With the enactment of Organic Law No. 10/2022 of September 6, which concerns the Comprehensive Guarantee of Sexual Freedom, commonly called the “only yes means yes” Law, many penalties for sexual offenses have been revised downward. The Minister for Equality labeled judges who decided otherwise as sexist and used a political epithet. Such comments from state figures do not reflect the standards expected in a Democratic and Constitutional State and are rightly viewed as inappropriate.
Section 2.2 of our Penal Code specifies that “penal laws in favor of the accused will have retroactive effect even if a final sentence has already been given when they come into force and the person is serving that sentence.” While the Constitutional Court hesitates to tie the most favorable non-retroactivity rule to the Constitution, the European Court of Human Rights has argued that Article 7.1 of the European Convention on Human Rights not only prohibits retroactive unjust criminal laws but also implicitly embraces the most favorable retroactive penal code principle. This is echoed by Article 49.1 of the Charter of Fundamental Rights of the European Union, which states that if the law provides for a lighter sentence after the crime was committed, the offender benefits; similar language appears in the International Covenant on Civil and Political Rights Article 15.1, last paragraph.
The undeniable fact is that Organic Law No. 10/2022 has changed the framework governing crimes against sexual freedom, eliminating the old distinction between sexual assault and sexual abuse. This new configuration brings its own set of penalties.
No crime carries a single predetermined punishment. Judges always weigh a range, considering aggravating, mitigating, and other circumstances. For example, Article 138 of the Penal Code provides that anyone who kills another is sentenced to ten to fifteen years for manslaughter; Article 240 states that forcible robbery carries a term of one to three years; and Article 404 forbids officials from arbitrary decisions in administrative matters, with disqualification and related penalties. Thus, judges determine a specific figure within the minimum and maximum bounds, guided by the case’s unique facts and circumstances.
The new regime created by Organic Law No. 10/2022 establishes lower minimum penalties than those in the prior framework. If the punishment options are expanded only by lowering minimum sentences, it follows that those previously sentenced under the former Penal Code, who faced several years in the minimum range, would benefit from this reduction. The same logic applies if a prior crime is replaced by a newer modality with a lower minimum penalty.
A similar situation could arise if, as anticipated, the crime of sedition is replaced by a variant of public disorder carrying a lighter penalty. The public discussion surrounding the 2017 events and their impact on convicts is widely reported, and many political factions defend this viewpoint. The Organic Law 10/2022 case is no exception in this regard. [Citations: European Convention on Human Rights, Article 7.1; Charter of Fundamental Rights of the European Union, Article 49.1; International Covenant on Civil and Political Rights, Article 15.1]