The Constitutional Court has redefined the scope of responsibilities in the political part of the ERE case by totally or partially annulling the sentences for prevarication and embezzlement of twenty senior officials of the autonomous government, but the majority of the specific cases in which the specific management and destination of the social and labour aid recognised in item 31L of the autonomous budgets – also known as the “snake fund” – are analysed are still alive in the courts. The ERE case is still far from being resolved judicially: there are 134 pending cases and, therefore, the real extent of the fraud is still unknown. These separate pieces hung, like a bunch of grapes, from the stem that constituted the political part of the ERE and which now, after the rulings of the Constitutional Court, take centre stage to establish how far the embezzlement went and the amounts actually defrauded.
Since Judge Mercedes Alaya began the investigation on January 19, 2011, the macro-case has been split into 139 separate parts, as many as companies and entities received the aid included in item 31L. There are currently 73 proceedings in the Court of Instruction Number 6 of Seville, of which 42 are in the preliminary investigation phase and the remaining 31 are in the intermediate phase, having been issued an order to transform them into abbreviated proceedings. In addition, there are another 61 cases referred to the Provincial Court for prosecution, of which 17 already have a sentence – some of them in accordance, that is, after reaching an agreement between the parties – and four are pending the drafting of the ruling, according to the data collected until June 6 by the High Court of Justice of Andalusia. Throughout this journey of more than almost 14 years, some pieces have also been dismissed and archived, precisely because the maximum period for investigation has expired.
Some of the defense attorneys consulted by this newspaper have announced that they will ask for the cases to be closed after the ruling of the Constitutional Court, although, according to Juan Carlos Alférez, the lawyer of the former director of the Idea Agency, Miguel Ángel Serrano, the first former senior official of the Junta to be released from prison, what the court of guarantees is doing is “completely eliminating the global embezzlement to which they were sentenced.” [los ex altos cargos]”The actual embezzlement will be determined after judging each and every one of the pieces and knowing which specific aids were granted outside the purpose of the program and which ones were in line with the program,” the lawyer explained this week.
It was also in the ruling on the political part of the case where the Seville Court quantified the total amount of money embezzled: 679,432,179.09 euros, a figure that corresponds to the total aid granted between 2000 and 2009, the period of time investigated. “There has been a huge lack of knowledge in public opinion about what was specifically judged in the so-called specific procedure, which leads to the error of maintaining that there was a misappropriation of almost 700 million euros,” says Alférez. Antonio Mohedano, who represented former president José Antonio Griñán during the trial in the Court, has always recalled that this figure “could only be determined when the rest of the specific cases were judged,” reaching an estimate of around 80 million euros.
That amount of almost 680 million euros (which the PP continues to describe these days as “stolen” money that “must be returned” to the unemployed in Andalusia), corresponds to an item that remains alive today in the Andalusian Budgets and for which some of the more than 6,000 workers who were beneficiaries of these social and labour aids, by virtue of a decree law of 2012, continue to receive payment. In the first budget year of the popular Juan Manuel Moreno Bonilla as president of the Junta, almost 37 million were allocated to pay these aids, which, as he announced, ElDiario.es, will continue to be paid until 2026.
Following the annulment of the first conviction for embezzlement, the spokesman for the Andalusian Government, Ramón Fernández-Pacheco, maintained last week that this crime was “the basis” that allows the Andalusian Executive to claim the money that was defrauded. However, the Andalusian administration, which appeared in this specific procedure as a private prosecution, opted, during the time when Susana Díaz was in power, to reserve the right to take action to claim civil liability only in the separate parts that are being judged.
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The amounts claimed in the specific cases already tried are around 20 million euros. Regarding the money recovered, the latest figure was offered by President Moreno Bonilla, who assured in the debate on the state of the community that the administration had already recovered 27 million euros of the 62 million that must be returned through the courts and the Court of Auditors. And that he is claiming another 135 million in “dozens” of other cases.
In any case, the criteria of the autonomous administration – now with the PP – to demand the return of these misappropriated aids does not seem to be in line with the political declarations of its leaders, since it does not guarantee their absolute recovery. The Board has decided to ask for the filing of the cases in which there are no intruders, a strategy that has earned it the censure of the instructor of the ERE, who reproached that with this measure the receipt of the totality of the lost amounts was being waived.
In the separate cases, there has also been a debate on whether the former leaders of the Junta already convicted in the political part of the ERE for prevarication and embezzlement should be tried again for the same crimes in the cases that dealt with the specific delivery of these aids. The Seventh Section of the Court of Seville ruled that they should not, but the Third has sometimes maintained another criterion, as in the first sentence for one of the separate parts, in which the magistrates sentenced the former Minister of Employment, Antonio Fernández, to seven years in prison for embezzlement, and the former Director General of Labour, Juan Márquez, to four years for his involvement in the granting of 2.9 million euros in aid to the company Aceitunas y Conservas (Acyco).
Among these separate pieces already judged is also the sentence to the former driver of the deceased Javier Guerrero – former director general of Labor, who was the main defendant in the macro-case – to four years and nine months in prison for using funds from the ERE subsidies to, among other things, buy a house or cocaine for his boss. The diversion of funds for cocaine consumption was considered the example that best illustrated the lack of control and apparent impunity with which aid was used, originally designed to quickly resolve mass layoffs resulting from the industrial crises suffered by the Andalusian community, and the paradigm that, as Alférez pointed out, the misappropriation of the 31L fund existed in those cases in which the money was allocated to companies that were not in crisis or for purposes or people unrelated to the object of the item. “The intention was to criminalize the person who proposed the law and went after the person who was politically weaker,” says Victor Moreno Catena, lawyer for the former Minister of Finance, Carmen Martínez Aguayo, also protected by the Constitutional Court, regarding an instruction that did not focus on the specific cases in which the law was misused.
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