The Constitutional Court considers that the reviewable permanent prison is not “inhuman” or “degrading”, as stated in the sentence passed on October 6 (and whose text was known this Tuesday) to reject the appeal filed against the law of 2015 that introduced this penalty in the Penal Code. The three magistrates who voted against, on the other hand, consider that the regulation of said penalty violates no less than six articles of the Constitution, as reflected in the joint private vote that they have drawn up.
The reviewable permanent prison, which the PP introduced in the Penal Code in 2015, is a kind of life sentence in which the prisoner can regain freedom if – after 25 years of compliance and through periodic examinations – it is considered that has been reinserted.
The ruling underlines that “the classification as inhuman or degrading of a sentence cannot be derived exclusively from its duration, but rather requires a material content that we associate with its form of execution and its modalities.” The court also holds that reviewable permanent imprisonment will not in practice amount to life imprisonment. He explains it with this argument: “It can be said that the reducibility de jure it is sufficiently guaranteed by imposing on the court an updated and periodic examination of the inmate’s personal evolution and his conditions of re-entry into society after a contradictory oral procedure in which the Public Prosecutor and the convicted person will intervene, assisted by their lawyer ”. In other words, the examinations that the inmate must periodically pass after 25 years of serving the sentence, and which would open the door to freedom if he demonstrates his rehabilitation, are enough to eliminate the perpetuity factor.
In the individual votes – it is a single text, but it is signed by justices Cándido Conde Pumpido, María Luisa Balaguer and Juan Antonio Xiol – it is argued, on the other hand, that the approved law violates “the mandate of social reintegration (Article 25.2 of the Constitution ), from which the prohibition of potentially life-long penalties derives; and the rights to liberty (article 17.1) and sanctioning legality (article 25.1), in relation to the principle of legal certainty (article 9.3), from which the prohibition of temporarily indeterminate penalties derives ”. All this linked “to the constant improvement of democracy as a civilizing project linked in its essence to the protection of human rights, whose central axis in the debate on penalties is located in its humanization (articles 10.1 and 15).
The sentence itself that there are European regulations on penitentiary matters responds to this, with specific recommendations, which “provide as means of compensation for the harmful effects of prolonged imprisonment the promotion of the participation of the prison population in the activities and decisions that make up the life of the penitentiary, the preservation of their ties with family and relatives, avoiding their geographical distance and facilitating their contact through postal, telephone, and visits, maintaining their contact with the outside world through access to the press, radio , television and social communication media, the enjoyment of permits and trips abroad and access to the assistance they require due to their specific circumstances ”.
European standards
The Constitutional Court considers that the reviewable permanent prison complies with European standards on the treatment that must be given to those sentenced to life or long-term sentences. However, the court indicates that constitutionality is admitted on condition that these two unique aspects are interpreted in this way: a) Once provisional liberty has been granted, it can only be revoked if the offender commits another offense or infringes the established prohibitions and rules of conduct. in the parole order; b) The revocation of the conditional freedom cannot prevent the convicted person from obtaining a new review of the sentence in the future, since denying him definitively all expectations of freedom would be incompatible with the Constitution.
The sentence explains that the permanent prison sentence does not violate the fundamental right not to suffer inhuman or degrading treatment or punishment guaranteed in article 15 of the Constitution, insofar as it can be revised after the completion of a minimum period of 25 years in a penitentiary center, by granting the convict by the sentencing court of conditional release, as long as he meets the legal conditions required for it, that is, good behavior, being classified in the third degree penitentiary, positive prognosis of future behavior in Liberty. In this sense, the judgment takes into consideration the preceding pronouncements of the Constitutional Court itself, as well as the European Court of Human Rights, which consider the reviewability of the sentence as a determining factor of its legitimacy.
The dissenting votes, on the other hand, consider that “the return to a sentence that had disappeared for almost a hundred years is not sufficiently justified from the constitutional perspective and that for almost forty years of the present democratic regime has not been considered necessary by the legislator, not even in contexts in which certain extremely serious crimes seemed to endanger social peace and the very survival of the constitutional system ”.
Judge Conde-Pumpido, in another private opinion, also expresses his specific discrepancy with the legal regulation regarding the suspension of the execution of the reviewable permanent prison sentence. In his opinion, the rigorous conditions required by article 92 of the Penal Code (to suspend the sentence) “removes us quantitatively from the European benchmark models and disregards the resocialization mandate expressly included in the Constitution as a guiding principle of the system of private penalties. freedom (art. 25.2) ”.
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