This Thursday the judgment in the case of the three former players of Arandina, who have been condemned to 38 years in prison each for sexual abuse to a minor. A penalty that is substantially greater than the Supremo applied to the Pack of Pamplona, sentenced to 15 years in prison each.
Basically, the conviction for crimes is similar. The fundamental difference has been the application of the "doctrine of necessary cooperation", as the statement of the General Council of the Judiciary. The former players, so to speak, have been punished three times: one for his own crime and two for cooperate with the crimes of others convicted.
Thus, each of those involved in the Arandina case has been sentenced to 14 years for a crime of sexual abuse and then another 12 years as a "necessary cooperator" of each of the other two participants. Adding a total of 38 years; a doctrine that It was not applied in the case of the Pack of Pamplona.
"The difference is that, in the sentences to the Pack of Pamplona, the Court of Navarre convicted of a continuing crime of sexual abuse and the Supreme Court corrected that sentence and sentenced them for a continued crime of rape ", recalls Rafael Fontán, professor of Criminal Law of the European University of Madrid.
"However, the Supreme Court itself considered, because neither party had raised it, that punish each violation separately, that is, a real contest of violations, "he explains." That each of the five convicted of the Pack be put on penalty for each violation, both for which he had been a direct author and for which he had been a cooperator. "
Indeed, in his statement last June 21 on that sentence, the Supreme Highlights the "error in legal qualification" of the judgment of the Audience of Navarra.
"He considered concurrent a single crime continued, when, due to the plurality of intervenors and aggressive acts, the correct qualification (…) would have been to consider the accused authors and participate in a plurality of crimes of sexual assault, "said the statement.
However, he added, the Supreme could not amend that error because neither party had challenged him, which prevented him from ruling on it.
Fontán points out that, if that criterion had been applied, each of the members of the Pack would have been sentenced with up to 75 years in prison: 15 for his own crime and 60 for cooperating with the crimes of each of the remaining four.
"The Supreme suggested that in these cases, when there was rape and exchange of roles between the perpetrators, it was normal not to appreciate criminal continuity, that is, a single continued crime of rape, but as many crimes as aggressions in which it would have participated ", mentions the Professor of Criminal Law.
Something that the Audience of Burgos has applied, as the statement of the judicial authority of this Thursday indicates: "The penalties imposed correspond to the application of the necessary cooperation doctrine, and for that reason each one of the accused is condemned like author by the facts realized by the same and like cooperator by the realized thing by the others ".
It is not because he is a minor
Fontán points out that the high penalties for former Arandina players have nothing to do with the fact that the victim is minor. He points out that the Criminal Code punishes him with the same number of years as the violations committed against an adult.
"It is something that attracts attention," says the Professor of Criminal Law, especially considering that the legislator, when it comes to abuse and aggression that the Criminal Code describes as less serious, penalties yes are greater If the victim is a minor.
"When these aggressions or abuses do not have the character of carnal access or introduction of objects anally, vaginally or orally, the sentences are much more severe than for adults, "he says." Sexual abuse of a child has at least one two year jail sentence, and yet sexual abuse of an adult may have a fine. "
Fontán explains another difference between the two sentences: while that of the Manada speaks explicitly of rape, in the one of the Arandina qualifies the acts of sexual aggression, being that in both cases there was carnal access.
"This is because the word rape it only appears in our Penal Code when it is carried out with violence or intimidation on an adult, "says the professor of the European University of Madrid." When there is an aggression with violence or intimidation, with carnal access, to a minor, the word rape does not appear. "