The attorney general, Álvaro García Ortiz, has sent this Thursday to all the Prosecutor’s Offices a circular in which it recalls that, following the criterion that was already established weeks ago in view of the reductions in sentences in application of the law of only if it is, the members of the Public Ministry should not support reductions as long as the sentence set in application of the previous law is in the penological section provided for in the new one. García Ortiz now specifies his first instructions and specifies that “the review will not proceed of final sentences when the penalty imposed in the sentence is also likely to be imposed under the new legal framework”, says the circular to which El Confidencial has had access. It also specifies that the revisions should only be supported when the disproportion is manifest and the imprisonment sentence that would have been imposed is “undoubtedly, of a much shorter duration.” Also when the existing sentence cannot be applied based on the new legislation.
The State Attorney General’s Office already issued an order in the past with the intention that he act as a partial patch to the reductions in sentences after the entry into force of the law of only yes is yes. He limited the retrospective effects of the law by ordering prosecutors to report in favor of maintaining those sentences that continue to be taxable under the new rule. Now it expands those instructions and indicates that the criteria indicated must be applied as a “general rule” although each case must be analyzed individually.
Supporting sales must be -indicates- something exceptional. “When the strict application of this rule causes manifestly disproportionate results, it will be possible to promote the revision of the final sentences. Said possibility must be reserved for cases in which it is notorious that, if the facts have been prosecuted under the validity of the new regulation, the The prison sentence that would have been imposed would undoubtedly be of a much shorter duration”. In these cases, prosecutors must be “especially cautious when it comes to making the correct equivalence between the repealed criminal type and the current one, taking into account the introduction of new aggravating circumstances that may be applicable.”
The thesis of the head of the Public Ministry consists in estimating that, if the sentence imposed according to the repealed law can also be imposed according to the new regulation, it should not be reviewed. Despite what it may seem at first reading, this principle does not deactivate all reductions: prosecutors will continue to report in favor of reductions when the sentence actually imposed exceed “in the abstract” than it would correspond to impose in application of the precepts of the new penal legislation.
It also establishes that “the automatic adaptation of the penalties previously imposed in arithmetic proportion to the new punitive framework will be avoided”, but at the same time it states that “each procedure must be analyzed individuallyfleeing from automatisms that prevent an assessment of the specific concurrent circumstances in each case”. The prosecutor’s report is not binding on the judge who must hear it and many of the decisions of the last days They are contrary to this thesis.
The criteria that the General Prosecutor’s Office is now notifying supposes, therefore, avoiding the lack of a specific transitory provision of the yes-is-yes law through the application of the fifth transitory provision of the Penal Code, which is not repealed and therefore continues in force. It establishes that, “in custodial sentences, this Code will not be considered more favorable when the duration of the previous sentence imposed on the act with its circumstances is also taxable under the new Code”.
The attorney general, Álvaro García Ortiz, has sent this Thursday to all the Prosecutor’s Offices a circular in which he recalls that, following the criterion that was already established weeks ago in view of the reductions in sentences in application of the only if it is law, the members of the Public Ministry should not support reductions as long as the sentence set in application of the previous law is in the penological section provided for in the new one. García Ortiz now specifies his first instructions and specifies that “the review will not proceed of final sentences when the penalty imposed in the sentence is also likely to be imposed under the new legal framework”, says the circular to which El Confidencial has had access. It also specifies that the revisions should only be supported when the disproportion is manifest and the imprisonment sentence that would have been imposed is “undoubtedly, of a much shorter duration.” Also when the existing sentence cannot be applied based on the new legislation.
