The revisable permanent prison and the Constitution, by Xavier Arbós

The moral height of a society could be established by observing the way you treat the marginalized that live in it. Even the prisoners; that is, those whose behavior has caused victims and who have received the corresponding sentence. The constituents should have thought of something similar when they established the text of article 25.2 of the Constitution. It indicates that the custodial sentences must be “oriented towards the reeducation and social reintegration“Obviously, this does not mean that criminal law should lose its repressive force. What it means is that, in addition to being a deterrent, penalties should also serve to enable prisoners to assume behaviors that allow their reincorporation to life in society, after the completion of his sentence.

In this constitutional framework, in 2015 reforms were introduced in the Penal Code to introduce the so-called ‘permanent reviewable prison’. Put more colloquially, the reviewable life sentence was introduced. This sanction is reserved for especially serious crimes: cases of genocide, terrorism, murder of minors or conduct that violates sexual freedom. In some of these cases, the offenders may be people with a very low probability of reintegration, which seemed to justify measures as serious as permanent prison. Which, in any case, could cease to be based on the behavior of the prisoner.

But the law that established the permanent reviewable prison was appealed. Deputies of very different sensitivities signed the unconstitutionality appeal, from Izquierda Unida to Convergència i Unió, through the PSOE and the PNV. It was even signed by deputies from Rosa Díez’s Union, Progress and Democracy party. The appellants’ arguments insisted that, with the reviewable permanent prison, the resocialization mandate cannot be fulfilled of article 25.2, already cited. The Constitutional Court took its time, but a few days ago the sentence was published. In short, validates constitutionality of the permanent prison. It is only obliged to interpret the powers of the prison surveillance judge, who is the one who decides whether the permanent prison ceases to be so. The court restricts its discretion to grant or revoke provisional liberty, forcing the interpretation of articles 92.3 and 92.4 of the Penal Code in accordance with the legal basis 9.b of the sentence. That is: that the revocation of the conditional release occurs when any of the cases expressly provided for in article 86.1 of the Criminal Code occur, and that if it is revoked, they are verified every two years if the conditions to grant it are met, such as The same article 92.4 of the Penal Code provides, once twenty-five years of permanent prison have been completed.

The Constitutional ruling has individual votes, which thoroughly discuss the majority’s argumentation. An important part of the controversy refers to the assessment of the jurisprudence of the European Court of Human Rights, which is significant because permanent prison exists in several countries, and has been examined by the Strasbourg court. The particular vote of Cándido Conde-Pumpido caught my attention, which highlights something that I share: the European court applies the European Convention on Human Rights, but this establishes a minimum, which the Constitution of each State can increase. So it may be the case that a measure that is valid for the Strasbourg Court is contrary to a Constitution.

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I think that is what happens with the reviewable permanent prison, and I feel closer to the dissident magistrates than those who form the majority in this ruling of the Constitutional Court. Permanent prison cannot have reintegration as its objective, because precisely its permanent condition prevents it; it involves renouncing it except for the exception resulting from its review. That is why it still seems unconstitutional to me, despite the rigorous arguments that are proposed in the sentence. What the Constitution imposes must be maintained by laws, including criminal ones.

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