Is Retroactive Sentencing Justified?

In Del Rio Prada v. Spain, the plaintiff is a Spanish national who was born in 1958 and is currently serving a prison sentence in Galicia, Spain.  Del Rio Prada was convicted of various offences linked to terrorist attacks carried out between 1982 and 1987, amounting to over 3,000 years of incarceration.  However, in Spain, under Article 70.2 of the 1973 Criminal Code in force at the time of Del Rio Prada’s sentencing, the maximum term to be served by a convicted person was 30 years.  This rule was applicable even were multiple sentences were imposed in different proceedings as in this present case.

Pursuant to this rule, in November 2000, the Audiencia Nacional combined Del Rio Prada’s sentences and set a maximum term to be served.  Thus the incarceration term was reduced from 3,000 years to only 30, and Del Rio Prada was scheduled to be released from prison on June 23, 2008.

In the midst of the plaintiff serving her sentence, the Spanish Supreme Court had departed from its previous case law concerning the remission of sentencing.  The “Parot Doctrine” was implemented on February 28, 2006, when the Court decided that remissions of sentences were no longer to be combined to total a 30 year maximum per person, instead the maximum sentencing would be applied to the different counts individually.  In other words, a maximum of 30 years per each count/sentence may be imposed.  Had this law been in effect when the plaintiff was convicted, she would have most likely received a much longer incarceration rate.  Accordingly, the Audiencia Nacional modified the plaintiff’s sentence and set the date for her final release on June 27, 2017, thus extending her original term by nine years.

Del Rio Prada appealed and argued that the law should not apply retroactively and that she should be released in 2008 pursuant to her original sentencing.  A hearing was held on March 20, 2013, and on October 21, 2013, the Court rendered its final decision.  “The European Court of Human Rights held: by fifteen votes to two, that there had been a violation of Article 7 (no punishment without law) of the European Convention on Human Rights”.  Furthermore, the Court unanimously stated that violation of Article 5 § 1 (right to liberty and security) of the Convention was violated.  And finally by sixteen votes to one, the Court held that the State must ensure that the applicant be released at the earliest possible date.  Do you agree with the Court that laws should not apply retroactively?  What do you think about the treatment of Del Rio Prada?  Do you think that her 3,000 years sentencing for terroristic acts should have been reduced to only 30 years in the first place?  The new doctrine seems to be more justified, but applying laws retroactively is a dangerous road that the Court wisely decided not to embark on.

Source: HUDOC



  1. While it seems that Del Rio Prada is one type of criminal who deserves more years than she got, I agree that retroactive sentencing is a difficult and potentially dangerous road to go down. Due to the lucky fact that Del Rio Prada resided in Spain, where the jurisdiction called for a maximum sentence of 30 years, she was able to be released 100 decades earlier than she should have. While it would feel right for her to have received a longer stay due to the subsequent change of the law, that would set a dangerous precedent and violate human rights. A criminal should be punished under the law as it is when they commit a crime. Proceeding differently could also potentially put a “rehabilitated” criminal back in jail. While I have zero sympathy for the majority of criminals out there, it just isn’t right to retroactively apply punishment. A legislature has to stick with the set of rules it has enacted at the time a criminal is sentenced, or else change the law immediately.

  2. The Basque terrorist group ETA is a designated a foreign terrorist organization by the United States, the United Kingdom, Canada, and the European Union. The ETA practices kidnapping, extortion, robbery, and is, “blamed for the killings of more than 825 people”. As a member of this group, Del Rio Prada participated in multiple terror attacks and killed 23 people. It is without a doubt that, in this case, a criminal was set free before her deserved sentencing was complete. Although the circumstances of this case make the holding seem an injustice, a blanket precedent of retroactive sentencing was rightly refused.
    Retroactive laws and sentencing is universally frowned upon. Article 9(3) of the Spanish Constitution states, “The Constitution guarantees the principle of legality, the normative order, the publication of the norms, the non-retroactivity of punitive provisions which are not favorable to, or which restrict individual rights, legal security, and the interdiction of arbitrariness of public powers”. ( The United States case, Griffith v Kentucky, “refused to make an exception to the rule of retroactivity in cases where there was a “clean break” with past precedent”.


  3. Inés Del Rio Prada was convicted of terrorism offenses and sentenced after bombing a bus killing 12 people. Although she did commit heinous acts seeming more deserving of a 3,000 year prison term the definitive factor is at the time she committed those crimes; that sentencing structure was not in effect. She is clearly an individual not deserving of leniency but for the sake of uniformity and fairness of the criminal justice system; it must be extended to her. Spanish law at the time of her sentencing limited prison sentences to 30 years, which would have made her eligible for parole in 2008. That sentencing structure should be the only one applied to this case. This would undoubtedly lead to a slippery slope where individuals could get fined with something as mundane as a traffic ticket for a violation that they committed before the ordinance was in effect. This would have countless individuals living in a world of uncertainty awaiting the time for them to be charged for a crime that was not yet a crime when they committed it. Yes, this does sound extremely obscure, but that obscurity can be directly transferred to Spain seeking to retroactively sentence an individual; it defies logic.

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