The flight from Spain to Belgium of Carles Puigdemont and seven councilors of the Generalitat was the final race of the Government that had staged a cavalcade without brakes in search of a break with the State. It was October 30, 2017, three days had passed since the failed unilateral declaration of independence and everyone knew that the Prosecutor’s Office was going to sue them for rebellion. Almost five and a half years later, at expresident He only has two travel companions left: former councilors Toni Comín (Health) and Lluís Puig (Culture).
The former Minister of Education Clara Ponsatí, who has been one of the most significant voices of the fugitives of the process, returned to Spain this week after guaranteeing that he did not risk going to prison. His return has fueled expectations in some sectors that the expresident may follow in his footsteps sooner rather than later, but the judicial situation of one and the other are very different and so would be the consequences of his return.
Ponsatí is, together with the general secretary of ERC, Marta Rovira, the great beneficiary, for now, of the reform of the Criminal Code agreed in December between the Government and Esquerra to repeal the crime of sedition and reform that of embezzlement. Until now, both were prosecuted only for sedition, a crime that made them face up to 15 years in prison, but the application that the Supreme Court has made of the legal reform implies replacing that crime with that of disobedience, punishable only with penalties of disqualification. to hold public office. With this scenario, the former Minister of Education knows that her return to Spain will result in a punctual arrest to testify before the judge (which can be two if she refuses to voluntarily go to the Supreme Court on April 24 to testify before magistrate Pablo Llarena) and a future trial for disobedience.
On Puigdemont, on the other hand, there is a national search, capture and imprisonment order for disobedience and embezzlement, a crime punishable by up to 12 years in prison. And that difference would not be reflected only in a hypothetical sentence and in the sentence imposed by the court. As soon as the Supreme Court or the police (national, regional or Civil Guard) have proof that the former president has set foot on Spanish soil, they would have the obligation to arrest and imprison him. In the order issued last week to reject the appeals against the prosecution for disobedience and embezzlement, Llarena explains why he has ordered Puigdemont and Comín to be imprisoned.
“Within the functions of the investigating judge (…) there are not only actions aimed at discovering the facts (…) but also preparing the trial and securing the responsible persons.” The magistrate thus rejects the defendants’ appeal against that arrest warrant and suggests that they will be imprisoned if they are arrested in Spain. It opens the door, however, to not decree preventive detention once Puigdemont appears before him or to release him before trial to “guarantee the fundamental rights of those subjected to trial.”
Provisional detention, recalls the judge, “both in its adoption and in its maintenance”, is “an exceptional measure” that “can only rest on the assumptions that constitutionally can legitimize it and, among them, and, as a first premise, The constitutional legitimacy of provisional detention requires the existence of rational indications of the commission of a criminal action and the consideration of its correct typical dimension. It adds: “Not only is the existence of a possible criminal responsibility an unavoidable assumption for the judicial adoption or the maintenance of the precautionary measure of provisional detention, but also a qualification of the facts that are imputed and, where appropriate, the correct attribution of a penalty prognosis (…) are essential elements”. In other words, when deciding on a hypothetical provisional detention for Puigdemont, the judge will take into account, in addition to the risk of a new escape, the evidence against him (in principle, clear because the sentence of the process He has already convicted the former vice president of the Generalitat and several government charges for this crime), and the forecast of the prison sentence he faces.
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The Supreme Court has already sentenced the former pro-independence leaders whom it judged for aggravated embezzlement, punishable by up to 12 years in prison, and upon reviewing the sentence after the recent reform of this crime, it has refused to apply the new modality agreed between the Government and ERC that provides for milder penalties and in which the Executive anticipated that the embezzlement of the process. Neither has Llarena applied this formula to the prosecution of Puigdemont, so with a request for a sentence of up to 12 years, and after years on the run, there would be arguments to keep him in pretrial detention. However, Llarena points out in his order that, in this case, the former president would have his right to attend the plenary sessions of the Eurochamber guaranteed if he continued to be a deputy.
Sources consulted in the Supreme Court indicate that the return of Ponsatí was expected since his prosecution was confirmed only for disobedience, but that of Puigdemont is more uncertain. Llarena’s plans include launching a new Euro-order against him when the EU court resolves the appeals of the former pro-independence leaders against the decision of the European Parliament to lift the immunity they enjoyed as MEPs. It will be then when the struggle between the Belgian and Spanish justice around the delivery of the expresident. The petition will no longer be, foreseeably, for sedition, but for disobedience and embezzlement, and the Supreme Court trusts that this change will facilitate the process.
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