Pubdate: Tue, 02 May 2000
Source: El Pais (Spain)
Address: Miguel Yuste 40, 28037 Madrid, Spain
Contact:  (Spanish language LTEs only please)
Author: J.A. Hernandez
Translation by: Robert Sharpe
Note: As this is posted, the original article, in Spanish, is at:


The decision mandates alternative treatment, even for repeat offenders with
felony convictions.

If a drug addict agrees to detoxification in a treatment center, the judges
should revoke the prison sentence for the crime committed and facilitate
rehabilitation. And it does not matter if the penalty is over two years in
prison or if the offender is a repeat offender.  The Supreme Court's
groundbreaking decision is based on the understanding that drug addicts
suffer from an illness.  The decision establishes that crimes committed by
drug addicts should be dealt with via safety measures (residency in a
treatment center) that lead to social reintegration.

The sentence, dictated by the Second Tribunal of the Supreme Court, breaks
with a long chain of sentences from lower courts.

Generally, the provincial courts send repeat offenders directly to prison
when sentences surpass two years. This is done in accordance with the rules
of the new Penal Code of 1995.  The groundbreaking nature of this resolution
is that, regardless of sentence length, whether it be four, six or ten
years, courts should facilitate the rehabilitation of offenders who credit
"prolonged addiction to drugs" as the motivation behind crimes committed to
acquire daily fixes. The majority of addicts are usually denied this
alternative because weapons are used in robberies, which puts sentences over
two years, and are repeat offenders.

Jose Luis Segovia Bernabe, member of the legal service of the Catholic
Penitentiary Pastoral, considers that "this sentence covers an important
legislative gap and opens doors to many addicts who will be able to initiate
or resume treatment for their medical condition. Without a doubt the judges'
decision is more sensible than that of legislators in expanding alternatives
to prison for people with specific problems."

Luis F.M., of Sevilla is the first beneficiary of this judicial decision.
Luis was sentenced by the Court of Sevilla to a total of nine years of jail
for robbing a couple of 700 pesetas (roughly $5 U.S. dollars) at knifepoint
(robbery with intimidation) and then obligating them to visit an ATM machine
to take out another 2000 pesetas (illegal detention).

The Sevilla Court disregarded the defenses' position that Luis' "12 years
addicted to heroin" constituted extenuating circumstances.  The defense
claimed that both crimes were committed to obtain a fix.  The Supreme Court
did not reduce the penalty (left at seven years and six months) but,
instead, concluded that the offender suffered from a "prolonged addiction to
drugs, 12 years" and, as a result, concurred with the mitigating drug
addiction defense.  Consequently, it urged that his rehabilitation be
studied and facilitated as an alternative to incarceration.

The new Penal Code permits safety measures or alternative treatment even if
penalties are in excess of two years, but only in cases where the defendant
is found guilty of the crime (total or partial) and extenuating
circumstances are involved.  In the case of Luis, the Supreme Court declared
drug addiction to be an extenuating circumstance and that safety measures
could be applied as if the defendant had been absolved of his crime.  The
Penal Code of 1995 reserves this alternative for exonerated individuals
(mental upheavals, insuperable fear, state of necessity).

"Forgetfulness of the legislator "

The sentence, signed by the magistrates Andres Martinez Arrieta, Jose
Antonio Martin Pallin and Jose Jimenez Villarejo, reasons: "the legislator
of the Penal Code of 1995 failed to take into account the relationship
between crime and severe addiction." The authors of this sentence indicate
that the Constitution clearly states that the purpose of penalties that deny
liberty is the "rehabilitation and social reintegration" of the criminals
and, in the case of drug addicts, the only means of rehabilitation is
offering the option of entering detox centers and not incarceration.

The high court maintains that when judges are faced with the alternative of
sending an addict to prison or a rehabilitation center, they should evaluate
the personal circumstances of the accused and analyze if he or she is
disposed to "voluntary" treatment.  If he or she is sincere, the treatment
option should be permitted.

What should the court do with a convicted addict who, for example, is
sentenced to five years in jail, agrees to treatment and is certified
rehabilitated after two years? The magistrate Jose Antonio Martin Pallin,
one of the authors of this decision, explained to El Pais "as long as the
defendant did not commit any new crimes the remaining three years would be

Julian Carlos Rios, professor of Criminal Law at the Pontifical University
of Comillas, thinks that this Supreme Court decision "is a step in the right
direction that really addresses underlying social causes and provides
effective solutions to addiction."
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