The Superior Court of Justice of Madrid has declared void the sanction imposed on a therapist for trying to reconvert homosexuals. And this is due to irregularities in a part of the administrative procedure. This is stated in judgment 898/2021, which can be consulted at this link.
In the present case, the Governing Council of the Community of Madrid, by agreement of September 17, 2019, had imposed a penalty of 20,001 euros for a “very serious offense” provided for in the Comprehensive Protection Law against LGTBIphobia and discrimination based on sexual orientation and identity in the Community of Madrid.
Not surprisingly, the therapist promoted “healing therapies for homosexuality” on the Internet. This led to a complaint in 2016 before the Ministry of Social Policies and Family by the Arcópoli Association, which works against LGTBIphobia. The superior prosecutor of the Community of Madrid, upon receiving the proceedings, then understood that the facts did not constitute a crime and requested the filing of the criminal proceedings.
In 2017, two psychologists from the LGTBI Service of the Community of Madrid also denounced the therapist for performing false conversion therapies. And this based both on the content of her own website and on an article published in a digital newspaper about a conversation allegedly held between the appellant and the journalist who signed the report, who had pretended to need therapy because she felt attracted to people of her own. same sex.
After various administrative procedures, the Governing Council of the Community of Madrid imposed a fine of 20,001 euros. After paying it, the therapist appealed claiming, among other issues, that it is “coach specialized in personal identity ”and that“ works with people with same-sex attraction who want support and personal growth ”and“ with people with addiction to pornography ”.
From a legal point of view, it argued that the sanctioning procedure directed against her had expired and that, therefore, the sanction imposed was null. He also alleged the improper retroactive application of the Law of Comprehensive Protection against LGTBIphobia of the Community of Madrid and raised a question of unconstitutionality. Alternatively, he argued that the “fraudulent use of the information period” had caused him “helplessness.”
Although the Superior Court of Justice of the Community of Madrid has rejected the reason for the expiration, it argues that the administration committed “fraud of the law” in the period of prior information. A procedure whose purpose is to check if there are indications that make it convenient to initiate a sanctioning file. The magistrates say that article 2 of Decree 245/2000 was violated, which approves the Regulations for the Exercise of Sanctioning Power by the Administration of the Community of Madrid. And this because it carried out a diligence that is exclusive of the administrative file and not of the prior information period.
Specifically, the Chamber understands that the Community should have issued an agreement to end the period of prior information because the events had already been classified as a “very serious offense”. Therefore, “not only were they precisely determined, but they were classified at that time, indicating the sanction to be imposed.”
Thus, the court finds that “the Administration has incurred in fraud of the law”, which consists of “an irregular exercise of administrative powers that, both the legal regime of the prior information period and the legal regime of the expiration of the sanctioning procedure do not consent ”. Consequently, the sanctioning agreement with the imposition of costs on the Administration is declared null and void.