The Constitutional Court has annulled this Tuesday the sentence of six years in prison and 15 years of disqualification for embezzlement and prevarication imposed on the former Andalusian president of the PSOE José Antonio Griñán in the ERE case. The court thus ordered the Provincial Court of Seville to issue another ruling in which it substantially reduces the sentence for prevarication and completely eliminates the sentence for embezzlement, which is the one that carried a prison sentence. By seven votes in favor (those of the progressive sector) and four against (from the conservative block), the court has overturned the interpretation of these crimes that was made in 2019 by the Seville Court and ratified in 2022 by the Supreme Court, as confirmed by sources from the guarantee body. The decision came just an hour after the Constitutional Court also annulled the sentence of nine years of disqualification for continued prevarication imposed on Griñán’s predecessor at the head of the Junta, Manuel Chaves.
The guarantee body thus definitively empties the Supreme Court’s actions in the ERE case The Constitutional Court has ruled in favour of the appeals filed by the Andalusian PSOE in eight of these cases, in which two former presidents were imprisoned and six former senior members of the Junta were imprisoned. With these two sentences today and another one by a former senior member of the Junta that was resolved shortly afterwards, there are now ten appeals by those convicted in this case that the Constitutional Court has resolved in the last month; in eight of them it has ruled in favour – totally or partially – of the appellants and has ordered the annulment or downward revision of the sentences. Only two of the requests for protection have been rejected, and two appeals remain to be resolved.
The granting of protection to Chaves and Griñán is not complete – in both cases, the Constitutional Court sees a possible crime of prevarication in a specific action by the Andalusian Government in December 2004, something that the Seville Court will now have to resolve and that in any case would not entail prison sentences – but the arguments used by the court are a support for the thesis maintained from the beginning by the defense of the former socialist leaders. The speaker of the sentences has been the vice president of the court, Inmaculada Montalbán, from the progressive sector. The four conservative judges – Ricardo Enríquez, Enrique Arnaldo, César Tolosa and Concepción Espejel – have announced dissenting opinions.
José María Calero, José Antonio Griñán’s lawyer, has expressed his joy at the sentence: “It is an endorsement of the judicial system when a constitutional right has been violated, and it also means that the system has passed the stress test, because it is not easy to deal with such a politicized sentence and process,” he told EL PAÍS, reports Eva Saiz. Calero also said that Griñán, who is still undergoing treatment for cancer, is “satisfied” with the decision, despite the “irreparable damage” he has suffered over the years. His family even asked the government for a pardon, in an initiative that was supported by 4,000 people.
Griñán was tried and convicted for his role as the regional finance minister between 2004 and 2009, before becoming regional president. During the trial, he maintained that he had no knowledge of the “huge fraud” that, he admitted, had occurred in the Employment Department with the granting of social and labour aid to companies and workers. But the Provincial Court first and the Supreme Court later considered that he had known about the fraud and that, although he could have stopped it, he had not done so. He never went to prison, for health reasons.
The Constitutional Court now declares that his rights to criminal law and the presumption of innocence were violated in the proceedings, by automatically transferring to those who merely approved the budget items – among them, Griñán – the responsibility of those who managed the funds fraudulently. Consequently, it orders that the proceedings be returned to the Provincial Court for a new ruling. But, in any case, only for prevarication.
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An hour earlier, and also with that split of seven votes to four, the Constitutional Court had annulled the nine-year disqualification sentence imposed on Chaves for the crime of continued prevarication. The Court must now issue a new sentence in which it substantially reduces the penalty.
The court’s arguments
In both cases, Griñán and Chaves, the Constitutional Court concluded that there could be no prevarication (knowingly issuing an unfair resolution) when preparing a budget bill, because this is not an administrative resolution. And, with regard to Griñán, it added that there could not have been misappropriation in the mere establishment by the Junta of budget items that were included year after year in the budget laws, without these being challenged for their alleged unconstitutionality by the guarantee body, the only one that could decide on their legality.
The revocation of the conviction for prevarication has only one nuance: the Constitutional Court orders the Provincial Court of Seville to limit the case to a specific aspect that could fit into the criminal concept of prevarication: a budget modification made in December 2004 by the Government presided by Chaves and with Griñán as counselor, with which the funds of a section (program 3.2 H) were increased which were then improperly allocated to the fraudulent social and labor aid of the ERE.
Appeal by former senior official dismissed
The Constitutional Court has rejected the appeal filed by another of those convicted for the ERE: Juan Márquez, former Director General of Labour of the Andalusian Government between 2009 and 2010. Márquez was sentenced to three years in prison and seven and a half years of disqualification for embezzlement and prevarication. The court considers that his right to the presumption of innocence was not violated because the sentence that convicted him does sufficiently reason, in accordance with rational and logical criteria, that the former senior official was aware that the funds from the 3.1 L programme were used for purposes completely unrelated to those established by law.
With today’s three sentences and the seven handed down in previous weeks, there are only two appeals for protection on the ERE case pending resolution by the Constitutional Court: that of Gaspar Zarrías, former Minister of the Presidency, and that of Antonio Vicente Lozano, former Director General of Budgets. Both were sentenced to nine years of disqualification for a crime of prevarication.
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