The Supreme Court declared this Monday that it does not consider the crime of misappropriation of public funds amnestiable in the case of process, for which several of the political leaders of the 2017 independence challenge were convicted – among them, Oriol Junqueras, former vice president of the Generalitat of Catalonia – and for which the former regional president Carles Puigdemont, who has fled from justice since then, is being prosecuted, when he left Spain and went to Belgium. The court also maintains the national arrest warrant against the former head of the Government. This decision represents a setback for the Government of Pedro Sánchez (PSOE) and its investiture partners, who promoted the amnesty law after the general elections of July 23, 2023.
The magistrates of the Criminal Chamber of the Supreme Court and the investigating judge Pablo Llarena, who is leading the case still open against the secessionist politicians who have fled from justice and are awaiting trial, have taken a series of decisions of enormous legal significance this Monday, to which will be added the great political repercussion that this entails. Among other measures, the national arrest warrants against Puigdemont and two of his former advisers, Toni Comín and Lluís Puig, who are also on the run from justice, are also maintained. At the same time, the court has not archived the ruling that disqualifies Junqueras and the two former advisers from office until 2030 and 2031. ex-consellers Raül Romeva, Jordi Turull and Dolors Bassa. And, in turn, it is agreed to promote a question of unconstitutionality regarding the crime of disobedience for which the last four were convicted.
Judge Ana Ferrer, for her part, has signed a dissenting opinion in favour of excluding the crime of embezzlement from the amnesty and supports raising a preliminary question to the Court of Justice of the European Union (CJEU).
The amnesty of embezzlement was one of the major issues to be resolved by the Supreme Court. The high court understands that this crime cannot be amnestied, since the accused obtained a personal benefit of a patrimonial nature and there was a “profit motive”. A thesis that is rejected by the Prosecutor’s Office and the State Attorney’s Office. “Whoever takes possession of another’s property – in this case, public property – commits a crime, even if the money obtained is destined for gifts to third parties, for charity or for any other altruistic cause. The punishment for property crimes is not justified by ‘keeping another’s things’, but by ‘taking another’s things’”, argues the Criminal Chamber in its resolution, where it concludes: “[Los condenados] They did with the assets of others that were entrusted to them what they could not or did not want to do with their assets. They destined it for their own personal objectives, which, even though they are political, do not stop them from also having that particular or sectarian aspect.”
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The judges’ ruling is extremely forceful: “[Fueron] “public funds placed at the service of its purposes, which were also private, although they could be shared by a greater or lesser number of people. The financing of electoral campaigns, of goals with political significance, of propaganda or the implementation of one’s own political ideas, even if it has an idealistic aspect, does not cease to also bring a very personal benefit that acquires a patrimonial character when it has brought about a significant saving.”
The High Court of Justice of Catalonia (TSJC) did grant amnesty last week to the embezzlement attributed to Miquel Buch, former Minister of the Interior of the Generalitat, as well as to the prevarication, for which he was sentenced to four and a half years in prison and 20 years of disqualification. The magistrates of this court, of lower rank than the Supreme Court, concluded that this crime fell under the umbrella of the law provided that the acts were intended to “finance, pay for or facilitate” any conduct linked to the processes and there has been no personal enrichment, understood as “personal benefit of a patrimonial nature.” The TSJC affirmed that, in the case of Buch, the embezzled money was not destined for his private pockets but for purposes linked to the independence challenge: “Another interpretation would leave the amnesty without content.”
The Supreme Court introduces another analysis regarding those already convicted by this court in the case of process: “The only alternative available to Junqueras, Romeva, Turull and Bassa, if they wanted to contribute to the independence project, was to use the public funds of the Generalitat or pay out of their own pockets. And they opted for the first option […] All citizens who considered it appropriate to make a financial contribution, greater or lesser, to the independence process saw their assets cut. […] On the contrary, the politicians who had huge budget allocations and used them to promote the same ends did not see their assets altered by those amounts because they did not need it. The money of everyone served to not reduce the money of a few,” says the Court’s ruling, dated this same July 1.
“That disconnection existed”
In addition to the exclusion of the amnesty due to the existence of a personal benefit of a financial nature, the Supreme Court lists another obstacle that prevents, in its opinion, the application of this law to the political leaders of the processes. According to the magistrates, the crimes analyzed potentially affected the financial interests of the EU: “It is not difficult to venture that the rupture of the territorial integrity of Europe – that disconnection existed, even if it lasted only a few seconds – contained a serious danger of affecting the financial interests referred to in article 2 of the Amnesty Law. And the consequences for the EU budget – formed, among other contributions, by a proportion of the gross national income of each country, depending on its level of wealth, and a percentage of the VAT collection of each State – are more than evident. —could represent the territorial decomposition of Spain and the consequent rupture of the territorial and political limits of the Union.”
Reproaches to the Courts
The order of the Criminal Chamber includes several reproaches to the Cortes, which processed the amnesty law in just a few months. The magistrates, led by the speaker Manuel Marchena, highlight the “difficulties” they have faced when interpreting the norm, due to the “high-speed pace” that the Congress and Senate followed to move it forward: “Between the political will that animates a certain reform and the normative statements through which that will is intended to be carried out, there must be a precise, exact coherence, which is a faithful reflection of the solvent handling of the conceptual categories that are typical of penal dogmatics. If this is not the case, the predictability and inalienable legal certainty that must preside over both the drafting of the norm that creates a criminal act and that which declares criminal liability extinguished as a result of the amnesty will suffer. […] The haste with which this legal text has come to light, reflected among other aspects in the visible distance between the initial draft and the one that has finally been published, contributes decisively to making the interpretative work difficult.”
The judges even point out the “condescending leniency of the Spanish legislat
or towards embezzlers convicted in a final judgment”, which “stands in striking contrast” with the reinforced protection that the European Union attributes to the crime of embezzlement of public funds. “It is especially difficult to reconcile the efforts of the European Union to eliminate margins of impunity for embezzlers with the will of the Spanish legislator to dispense exceptional and personalized treatment to crimes of particular gravity, for the simple fact of having been committed by specific political leaders and in a certain historical period that reaches from November 1, 2011 to November 13, 2023,” the resolution adds.
The Criminal Chamber continues with its criticisms: “The legislator has deemed it necessary to open a parenthesis to one hundred years of jurisprudence and to do so for very specific facts and protagonists. A parenthesis that will be closed again for all other citizens who have been convicted of a crime of the same nature.”
The arrest warrant against Marta Rovira expires
The investigating judge Pablo Llarena has considered that the crimes of disobedience attributed to Carlos Puigdemont, Toni Comín, Lluís Puig and Marta Rovira, secretary general of ERC, are indeed amnestied. And, although he gives the parties a deadline to make a decision on the matter, the magistrate has revoked the arrest warrant against Rovira – since it is the only crime attributed to the Esquerra leader in this case – and clarifies that the arrest warrants against Puigdemont, Comín and Puig are maintained only for embezzlement (not for disobedience).
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