The president of the court issues a dissenting opinion and clarifies that the compensation to the victim was paid with the money of the agents' parents: "These have been the ones who have made the reparative effort and not the convicted ones"
The sentence against two local police officers from Estepona who have avoided prison after abusing an 18-year-old girl is not without controversy. Both in the thick headline -from a possible sentence of 30 years to only two, and without stepping on jail- and in the nuances that the suspension of the sentence has. The agents have been sentenced to 24 months in prison, although they have been granted conditional remission on the grounds that they have no record and have paid 80,000 euros in compensation to the victim, for which the court appreciates the highly qualified mitigating circumstance of damage repair. But there are discrepancies between the magistrates.
The judges of the Eighth Section of the Provincial Court argue that, although the facts are serious, the victim has expressly stated through her lawyer the decision not to oppose the suspension of the sentence, that is, to free to enter prison; Nor was the Prosecutor's Office, which is the public guarantor, against it.
The only one who has done so, and who has cast a separate vote to that effect, is the president of the court, Judge Pedro Molero, who considers that the requirements for conditional remission would not be met and that, therefore, the agents should serve the sentence in prison.
In the particular vote, the judge underlines -literally and physically- the nuances of the decision of his companions. To begin with, he understands that the facts reveal a "pronounced criminal dangerousness" in their authors, since it shows "a highly planned action by those who were public servants."
«A certain automatism»
The president of the court considers that the decision of his colleagues to grant the conditional remission reflects "a certain automatism" by simply referring to the "concurrence of legal requirements", while recalling that the benefit of the suspension is not a kind of " fundamental right» of the sentenced person, but rather a measure to be applied by the judges.
The magistrate recalls that the order does not provide "any data" that allows for "a forecast of low probability" that none of the convicts "will commit acts of a similar nature in the future."
However, the two judges who granted the suspension of the sentence maintain the following in the order: «[...] The fact, due to the very particular characteristics that concur in it, makes a future forecast feasible in terms of the low probability that any of the convicts will commit acts of a similar nature again.
Molero clearly shows his skepticism in the face of such an affirmation by his colleagues: «Ignore the undersigned which are those 'so particular characteristics' of the fact that allow such an affirmation. Nothing is reflected in the order, nor in the sentence, in this regard.
Even more controversial is the second argument that the president of the court reels off, which is the reparation of the damage, that is, the payment of compensation of 80,000 euros to the victim.
The magistrate clarifies that, although he does not question the terms of the sentence reached in accordance, which reduces the sentence from 30 to 2 years, he does criticize that, for the purposes of granting the benefit of the suspension, it is concluded that the convicted have done an effort to repair the damage caused. "Nothing is further from reality," he maintains.
The president of the court clarifies that the money destined to pay compensation to the victim came from the monetary bail paid by the parents of the police officers to guarantee provisional freedom.
“For this reason, it cannot be said that the defendants have satisfied the civil liability derived from the crime, and even less that they have made an effort to do so. Their parents have done it. These have been the ones who have made the reparative effort and not the condemned », he maintains.
The magistrate abounds in this concept. It recalls that the payment of compensation charged to one's own assets, and not to that of a third party, represents an "important external manifestation of recognition of the crime and of the desire to satisfy the victim" and, with it, "to deviate from this type of behaviours”.
Finally, Molero understands that the agreement between the parties "does not relieve the sentencing court of applying its criteria", regardless of the will of the victim herself, "because we are not in a private sphere but in an area of marked public interest" .
The president of the court concludes that in cases like this "very important values are compromised"; in general, that of the whole society to prevent the commission of crimes like this; and in particular «of defense and protection of women and their decision-making capacity».
In his opinion, given that the concurrence of "a prognosis of criminal danger in relation to crimes against sexual freedom" cannot be ruled out, it was appropriate to deny the suspension of the execution of the prison sentence imposed.