Is Permanent Revisible Prison a Draconian Law?

Once upon a time… If this were a story and not a lawyer’s blog, we might as well start our publication this way. But we will keep the seriousness that characterizes us and try to tell the reader the story of this germ, something… draconian. The RAE defines the adjective ‘draconian’ as: ‘excessively severe law or measure’.

But how did it all begin?

Or rather with whom. Piqué would have a clear answer, and we all know that answer, but this time he would be wrong (Piqué). It all happened much earlier, in Ancient Greece, in the 7th century B.C., -thinly spun: 621 B.C.-. A lawmaker named ‘Dracon of Thessaly’ appeared. The nobility entrusted him with the novel task of drawing up a legislative code in criminal matters. His work consisted of collecting and drafting all the customary rules that existed in this regard. Historians say that, until that moment, they were only used orally.

He took the task so seriously that word spread among the people that the laws were written in blood, not in ink. Dracon characterized his code by extreme harshness and severity. For crimes such as breaking and entering, loitering, or stealing an apple, the death penalty was applied.  As expected, these laws did not last long because rather than legislating, they were dedicated to the opposite. Instead, it seems that Dracon’s ‘work’ has remained alive for thousands of years.

The danger of extraordinarily punitive expansionist policies is that the rule ends up being ignored by society

Are there any currently Draconian standards anywhere in the world?

In China, crimes related to petty theft, civil disobedience, bank fraud, are punishable by death. And for more crumbs, the family of the condemned must pay the price of the bullet.

In Saudi Arabia, prisoners are punished by execution and mutilation of limbs, for crimes such as theft.

Singapore has legislated that anyone who litters the streets with garbage, and as a result chewing gum is strictly forbidden, will be punished by flogging. It is also in this country where men are punished with life imprisonment for being homosexuals, but not women.

In Indonesia, masturbation is punishable by decapitation.

El Salvador has regulated that drunk drivers can be punished with death before a firing squad.

Nigeria allows a woman to be beaten by her husband, but always for corrective purposes.

In Somalia, Iran, Sudan, northern Nigeria, Pakistan, Afghanistan, the Arab Emirates, Saudi Arabia, a province of Indonesia and Yemen, married people, separated people, divorced people and even widowers with extramarital affairs – what is adultery and what is not decided by the Islamic court on duty – are sentenced to death by stoning.

We could continue, but we are going to leave everything in a humiliating etcetera and we are going to save ourselves any type of commentary on the matter. Although, now the question is,

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The bench penalty and undue delay

The Bench Penalty is as cruel and unjust as it is tolerated by the Administration of Justice in Spain. The Examining Magistrates coexist with it as something inevitable

Is there a Draconian Law in Spain?

The revisable life sentence resonates, and quite strongly. Although we will safeguard the distances, as the assumptions for its application are quite different from stealing an apple.

The Criminal Code establishes the assumptions to which this penalty applies. The essential requirement to prove is that it must be a murder. In addition, one of the following circumstances must be present:

• Children under 16 or people who are especially vulnerable due to age, illness or disability.
• The murder will follow a crime against sexual freedom (see: rape).
• The crime is committed by a member of a criminal group or organization.
• Multiple murders.
• Murders perpetrated by terrorists.
• Crimes committed against the Crown (killing the King/Queen or any of her descendants or ascendants).
• Crimes against Heads of foreign States or persons protected by International Treaties.
• Crimes of genocide and crimes against humanity.

The Government has recently approved a draft bill which incorporates five new crimes to which permanent detention is applicable. These are:

• Murders with obstruction of the recovery of the body (Marta del Castillo case?)
• Murder after kidnapping
• Serial rape (La Manada and Pamplona?)
• Rape of a minor after deprivation of liberty or torture
• Deaths in fires, damage to critical infrastructure or release of nuclear energy or radioactive elements.

I don’t think Spaniards are too worried about the rule being harsh. The problem is that the Criminal Code Codification Commission does its job while watching the news.

Check again the list of crimes that you want to incorporate into the Permanent Revisible Prison and judge for yourself.

Let’s be serious.

What is happening in Europe?

In Germany, the eternal example of what should be done in the legal field, the sentence is reviewed after 15 years. After this time, the prisoner is allowed to apply for parole. Furthermore, statistics show that the average sentence is 21 years.

In France, on the other hand, it is reviewed after 18 years, or 22 years in the case of repeat offenders. It applies to the murder of minors under 15, who have previously suffered torture or rape.

Another example is Finland. Its legislation decreases the review rate to 12 years.

In the UK, judges have the power to rule that the sentence is a ‘life sentence’. If not, they will set a deadline after which the prisoner can apply for parole.

In short, the European countries with the best judicial systems have a permanent prison that can be reviewed, with a much shorter duration than in Spain.

How many years are foreseen in Spain for the revision of the revisable life sentence?

It will vary between 25 and 35 years, depending on the type of crime and whether the penalty is for one or more crimes.  At present, however, the review will take place at 15 years, as prison legislation has not yet been adapted to the provisions of the Criminal Code. Although this is only a matter of time.

On the other hand, it is not surprising that convicts can request exit permits once they have served a minimum of 8 years. This rises to 12 for cases of terrorist murders. While it is true, it will be necessary to meet certain requirements and practice tells us that everything will be at judges’ discretion.

On the other hand, what are the reasons why Spain has longer review dates than the rest of Europe?

We will avoid entering into political debates, although this could be one of the reasonable arguments for answering the question.

Again, we look at the statistics. They tell us that, for most minor crimes, Spanish law has higher penalties than the rest of Europe. And all of this in a country that ranks third in the continent’s lowest crime rates. The average is 17 months, compared to 8 in Germany, 2.8 in Belgium or 13 in Italy.

From this starting point, it is , therefore obvious that the more serious the crime, the greater the penalty.

Finally, is this whole system constitutional?

The ECtHR has been clear on this issue. It has decreed that it is, as long as European countries allow a horizon of freedom and resocialization, in their norms.

And we ask ourselves: does this apply to the case of Valtonyc’s imprisonment for writing a song? And even more so, prison for tweeting?

Amnesty International is clear about this. The system violates fundamental rights. Freedom of expression, in its maximum splendor. Still, the legislator remains impassive, Europe is too slow and the courts are more unpredictable every day.

Anyway, one thing is clear: any time past was not the best.

If this article has been of interest, we also suggest you to read the following article published on our website: What is fraud? Difference from gross negligence.