The Supreme Court has refused to lower the sentence of two prisoners in the case of the ERE of Andalusia who demanded that their punishment be reduced after the legal reform of this crime approved a year ago. The Criminal Chamber has confirmed the decision of the Provincial Court of Seville, which already rejected the petition of the two convicted persons, the former Andalusian Minister of Economy and Finance Carmen Martínez Aguayo and the former general director of the IDEA agency (Innovation and Development of Andalusia). Miguel Ángel Serrano Aguilar, considering that the cases for which the Penal Code now contemplates a reduced sentence are not applicable in this case.
It is not the first time that the Supreme Court has refused to apply the legal reform agreed upon in the last legislature between the Government and ERC (it has already ruled out, among others, for those convicted of the process), but until now it had not examined whether this change in the law could lead to ERE fraud, as some PP and VOX leaders suggested to accuse the PSOE of trying to favor those convicted of this party in Andalusia. Martínez Aguayo and Serrano were sentenced for a crime of prevarication, in medial competition with the crime of aggravated embezzlement, to six years and two days in prison, the first, and six years and six months, the second. Both entered prison last Christmas, almost at the same time that the legal reform was approved, which provides for a new attenuated type of embezzlement for cases in which the crime does not imply personal enrichment for the person who commits it.
Compared to the up to 12 years in prison provided for when there is direct personal gain, The reform contemplates much lower penalties (a maximum of three years in prison) when the crime does not involve personal enrichment. And the reform included another novelty, which is the precept in which the Government, when designing the legal change, understood that the embezzlement committed by the leaders of the processes for diverting public funds for the organization of the 1-O referendum and to which those convicted of the ERE also clung: the introduction (article 433 of the Penal Code) of a new type of embezzlement consisting of giving to public assets a public application, but different from the one initially assigned. The Supreme Court has already ruled out that this article could be applied to pro-independence leaders and now it is also ruled out for the ERE of Andalusia. The Prosecutor's Office also did not support the reduction of the sentence in either case.
According to the Supreme Court's ruling on Martinez Aguayo and Serrano, “it is difficult” to “reduce it to a mere budgetary deviation or to understand the existence of a public application different from that for which it was intended,” the facts that the Supreme Court's ruling ERE case describes as “the seizure or subtraction perpetrated of enormous amounts of the public budget, to whom its management corresponded, to deliver it in an illicit and improper procedure to another public entity so that it could dispose of it as if it were its own, without even the need for a call published in the BOJA (Bulletin Official of the Junta de Andalucía), distributing it without any budgetary criteria, or (…) outside the budget.”
For the Supreme Court, the new article 433 of the Penal Code can only be applied “residually” to punish “lower level” conduct, which was not classified as a crime until now and which involves “budgetary diversion or expenses that are difficult to justify.” These acts were already punishable in the Penal Code until 1995 and the Supreme Court cites in its ruling several sentences imposed in this way, such as the case of a municipal secretary-computer who retained it without depositing it in the Municipal Fund or delivering it to the Depository or other employees. , an amount of money with which he met obligations contracted by the City Council, such as paying for part of the works of a municipal market. Thus, the court explains, he gave them a different public application than what would have corresponded if he had deposited them in the municipal treasury. In cases like this, the Supreme Court points out, there is no profit motive and the attenuated modality of embezzlement is applicable.
In the case of the ERE, however, one cannot speak, according to the judges, of a simple budgetary deviation, “but rather of the disposal of public assets as if they were their own assets, without limits or criteria, unrelated to a public interest that “responds minimally to an equitable allocation of public resources, programmed and executed.” The sentence has been handed down unanimously by a court made up of the president of the Criminal Chamber, Manuel Marchena, and the judges Juan Ramón Berdugo, Andrés Palomo (rapporteur), Ángel Luis Hurtado and Javier Hernández. The Supreme Court ruling that confirmed the sentences of the ERE imposed by the National Court went forward with the dissenting vote of two of the five magistrates that made up the court, who issued a dissenting vote in which they considered that Griñán and four other former senior officials of the Board condemned by the Supreme Court did not embezzle.
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