The Supreme one revokes a revisable permanent prison sentence for the first time
- The man killed in 2016 to the grandfathers of his exnovia that suffered a incapacity due to ictus
The revisable permanent prison by 24 years from jail replaces when understanding that the desvalimiento of the victim, as bases of the appreciated treachery on the murder, cannot also be applied as aggravating by special vulnerability of the victim.
Supreme court, Room of the Penitentiary, Sentences 716/2018, 16 January. 2019. Resource 10418/2018 (LAW 450/2019)
The Room of the Penitentiary of the Supreme Court has revoked the revisable permanent prison sentence that imposed the Provincial Hearing of Tenerife to a murder defendant because to impose a same circumstance considered it - the vulnerability of the victim to apply two aggravating different ones to him: on the one hand the treachery and by another one the specific one that anticipates the Penal Code for especially vulnerable victims by disease or incapacity. It replaces it by a prison sentence of 24 years.
One is the first occasion in which the high court reviews a sentence by revisable permanent prison, although this one talks about only to a technical question in the application of the penal rule.
Thus, the Supreme one replaces the revisable permanent prison in this case by a sentence of 24 years of jail, when describing the facts as murder with treachery and extreme cruelty, and lapses the hyperaggravation by vulnerability of the victim anticipated in article 140.1.1 of the Penal Code, that had justified the revisable permanent prison sentence
The facts of the sentence go back to January of 2016, when the defendant went to the address of the victim, who was grandfathers of his exnovia, and she aimed stabs and blows to him with diverse objects until causing the death to him by the serious loss of blood.
The victim suffered a incapacity consequence of ictus suffered years ago, that to him alteration of the language and unstable march brought about, reason why her capacity of reaction to stimuli was slower and clumsy, according to the sentence of the Hearing, that was ratified by the Court Superior of Justice of the Canary Islands.
AGRAVATED MURDER With the concurrence of treachery and extreme cruelty, the crime would have been an agravated murder, punished with between 20 and 25 years of prison by article 139,2 of the Penal Code. The magistrate-president of the jury, nevertheless, understood that the suitable pain was the one of revisable permanent prison for being the victim especially vulnerable person because of its disease or incapacity, according to the hyperaggravation picked up for those cases in code article 140.1.1.
The high court nevertheless remembers that the special vulnerability of the victim based on this case, next to the surprise attack, aggravating of treachery, that is to say, the defenselessness of the man against the attack, which disables his appreciation in addition to justify the hyperaggravating one of special desvalimiento that makes possible the revisable permanent prison for certain murders.
The TS illegally replaces a revisable permanent prison by 24 years from prison when being applied the aggravating one
According to the sentence, the desvalimiento situation, or if the special vulnerability of the victim because of its disease or incapacity is preferred, as it is from the content of the resorted resolution, integrated of inescindible way next to the surprise attack, the defenselessness situation that made possible the estimation of the treachery circumstance. The consequence is that 140.1.1ª is not possible to consider the hyperaggravation of the Art., the vulnerability situation, under pain to incur prohibited double valuation, add the magistrates.
THE CGPJ IN ITS REPORT ALREADY NOTICED IT
The sentence remembers that the General Council of the Judicial power (CGPJ) or warned in his Report to the First draft that would give rise to the reform operated by Statutory law 1/2015 that the circumstance first of article 140,1, demonstrated a tendency to non bis in idem, because good part of the assumptions to which it talks about (minor or especially vulnerable person) will finish in the treachery in attention to the legal construction of the same.
In another point of its sentence, the Supreme conversation to one of the allegations of the defense for being the addict condemned to the World video-game of Warcraft. It argued that as much the WHO as Project Man, consider it modern pathology, recently discovered and they declare it very serious disease; when contemplating it as mental pathology by extreme upheaval of the personality by video-games.
TO BE ADDICT TO VIDEO-GAMES DOES NOT EXEMPT BY MENTAL PATHOLOGY
The Supreme one responds that the upheaval of video-games, could derive in addiction, although it aims that still existing, no matter how hard the game at issue, is of survival, such addiction, as mental disease, only entails to a reiteration in the game, that appears high-priority to any other activity.
It adds that in no way, from an abstract perspective of the content and effects of this addiction, nor from a rational valuing concretion of the test practiced in cars, as explains the resorted sentence, the obsession of the defendant with the video-game at issue had incidence some in the committed crime.
For this reason, the Room rejects to consider the complete nor incomplete exemption of psychic alteration that it prevents or it seriously makes difficult to understand the illegality of the fact or to act according to that understanding whose application asked for the defense.
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