The Constitutional Court protects former counselor Martínez Aguayo in the ‘ERE case’: “A law cannot be a vehicle for embezzlement”

The sentencing presentation that the Constitutional Court will vote next week on the former Minister of Economy and Finance of the Junta de Andalucía, Carmen Martínez Aguayo, defends that a conviction for embezzlement is unfeasible in cases of strict compliance with the laws, such as those of the Budget of Andalusia, which were never challenged. Neither Martínez Aguayo nor her department managed the million-dollar public funds that were awarded without any control from the Department of Employment. The ruling that admits the appeal for protection by the former Andalusian politician means in practice a full exculpation of the accused, who spent a year and a half in prison, until the third degree of prison was applied to her, at the beginning of this month.

The Constitutional Court will return the case to the Court of Seville with the order to reverse the procedure and issue a new sentence that assumes the criteria of the guarantee body. The sentencing report indicates that Aguayo suffered a double violation of his fundamental rights because his right to the presumption of innocence and the principle of criminal legality were violated, due to the incorrect application of the crime of embezzlement.

The Seville Court and then the Supreme Court sentenced the former counselor to six years in prison for embezzlement, understanding that, although she did not directly manage the funds, she should have acted to prevent the ERE fraud. That sentence did not attribute conduct that directly involved her embezzlement, but rather an alleged passivity in the face of regulations that allowed public funds to be used for illicit purposes.

The conviction of Martínez Aguayo was argued as follows: “The authorities that intervene in the budgeting phase could have consented or allowed the authorities or officials who later intervened in the management phase of the budgeted funds to carry out disposition acts with which the effective subtraction of flows.”

The ruling that will now be annulled held that the people who participated in the preparation of the budgets and budget modifications had “functional powers to avoid the theft,” but “did nothing” to prevent it.

The Constitutional Court maintains that Aguayo limited himself to observing compliance with the legislation approved by the Andalusian Parliament. “A law,” the sentencing report emphasizes, “cannot be a legally effective vehicle for embezzlement and the Budget law, and its credits, cannot be illicit.”

The sentencing report censures the sentences set by the Court first and then the Supreme Court because they are based on an incorrect “judgment of illegality.” The reason is that said trial “ignores” that the legislative initiatives contemplated in the preliminary drafts and draft budget laws “lack any legal effectiveness.” ad extra until they are approved by Parliament.” At the moment in which they are approved – the court continues – “they acquire the status of law, and from which they must be considered valid, without being able to constitute the source of acts of illicit disposal of public funds for the purposes of condemning for the crime of embezzlement. ”.

The interpretation of the convictions of the Seville Court and the Supreme Court – the report of the guarantee body points out – means holding the former minister responsible for the acts committed by third parties, considering that she could and should have prevented them, because “the authorities that intervened in the budgeting phase of these aids should have prevented, in short, that uncontrolled management regime from materializing.”

This criterion, the Constitutional Court reasons, is wrong because no one “can reasonably foresee” that they will be convicted of the crime of embezzlement, which implies the illicit disposition of funds, when in reality they have carried out “conducts that are covered by a norm with the force of law.” ”. The guarantee body defends, in short, that compliance with regulations, such as budgetary regulations, cannot be the basis for a conviction, because a law, “as long as it is not declared unconstitutional, must be considered valid.” These arguments, according to Constitutional sources, will be repeated in the sentencing report drafted to resolve the appeal presented by the former Andalusian president, José Antonio Griñán, also sentenced to six years in prison for embezzlement but who did not go to prison due to the illness. who suffers and for whom he is being treated.

The Constitutional Court will also vote on four other sentencing reports where it considers that the rights of four people convicted of ERE fraud were violated, whose appeals will be resolved during July. This is Miguel Ángel Serrano, who was in charge of the Innovation and Development Agency (IDEA) of Andalusia between 2004 and 2008, where the fraudulent aid originated, sentenced to 6 years in prison for prevarication and embezzlement; Antonio Fernández García, former Employment Counselor of the Board, who managed the funds, sentenced to 7 years in prison for the same two crimes; Francisco Vallejo Serrano, Minister of Innovation, Science and Business between 2004 and 2009, also sentenced to 7 years for embezzlement and prevarication, and Jesús María Rodríguez Román, Vice-Minister of the same department between 2005 and 2010, also for the same crimes. Constitutional sources emphasize that in all these cases the principle of criminal legality was violated, as the facts did not fully fit with the criminal figure of embezzlement for which they were convicted. In the four cases mentioned, this will mean a substantial reduction in their sentences, the determination of which will be in the hands of the Court of Seville. The same sources affirm that the reduction may be smaller in the case of the former Employment Minister, whose department managed the aid.

_