A legal reform not without controversy
Organic Law 1/2015, of March 30, amending the 1995 Penal Code, has been controversial from its inception, as it was enacted with the stigma that it could be annulled simply because the Government omitted requesting reports from the Judiciary, the Public Prosecutor's Office, and the Council of State for a significant portion of the reform. Some legal experts have even cited two Constitutional Court rulings and four Supreme Court rulings to conclude that the failure to request these reports constitutes a ground for annulment.
Furthermore, during its processing, the law has been the subject of multiple studies, reports, and meetings of various legal operators and associations that have issued very critical opinions about it, (more than 60 professors of Criminal Law from 33 public universities, Greenpeace and Amnesty International have made public manifestos against the new Code) carrying out an intense discussion on each and every one of the aspects that comprise it (counting nearly two thousand amendments to the legal text), since it is the first time that a single party has approved on its own such an important law with such a notable change of penal approach and innovation of penalties.
And despite the merits of some of its measures, such as the clear distinction it makes between disloyal administration and misappropriation, or between fraudulent insolvency and obstruction of justice, or the specification of the criminal liability of legal entities, or the criminalization of new offenses such as forced marriage, harassment, the unauthorized disclosure of intimate images or recordings obtained with the consent of the affected person, or the manipulation of monitoring devices used to supervise compliance with sentences, or the transposition of European decisions on child pornography, sexual exploitation of minors, human trafficking, or illegal immigration, the aforementioned reform—among other things—unwelcomes an increase in the severity of many offenses—especially by converting misdemeanors into felonies—establishes life imprisonment with review (a kind of life sentence with a review of the sentence after 25 years), directly eliminates some misdemeanors, converting them into administrative sanctions, and generalizes an additional penalty that can be greater than the main one—imprisonment. monitored- and creates a new concept of public order in which there will be high sentences with the possibility of preventive detention.
But if there is one controversial measure in this quintessential reform, it is life imprisonment with review. Rejected by critics as "inhumane," it is considered unenforceable because it is extended to a wide range of crimes. It is applied in cases of exceptional gravity, such as the murder of the king or his heir, foreign heads of state, genocide, serial killings, crimes committed within a criminal organization, or against minors under 16 or especially vulnerable individuals. Sentences will be reviewed after 25 to 35 years to determine if the prognosis is favorable for social reintegration. Judges will examine whether imprisonment should be maintained every two years, either automatically or at the request of the prisoner, although they may not process new requests for a year. The review periods for the sentence are considered excessive since in other European countries, these periods are between 15 and 20 years, while in Spain they are between 25 and 35, with a notable lack of clarity in the conditions required to extinguish the sentence.
Olga García.
Civil and Criminal Lawyer
Àmbit Assesor
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