Judges contradict government sedition and embezzlement reforms

2023-01-14T22:45:00.981Z

The Prosecutor's Office prepares a decree to unify criteria on the application of changes in the Penal Code

The Government promoted two legal reforms to reduce the cost of embezzlement and repeal sedition, substituting it, with much less penalty, for aggravated public disorder.

But since the new laws came into force on Thursday, judges have thwarted the government's plans with these legislative initiatives.

When the approved norms have been applied, the magistrates have issued orders or rulings with contradictory interpretations and a point in common: all judicial decisions frustrate, in one way or another, the objectives that the Executive pursued with each of the legal reforms.

The magistrates of the National Court suggest that the reform may benefit those accused of embezzlement, contrary to what the Government maintains, and have asked the Anti-Corruption Prosecutor for criteria.

The Supreme Court magistrates maintain that the reform does not favor the independentistas convicted or accused of embezzlement, but that those involved in the

process

are free of the charge of sedition because that crime has been repealed and cannot be replaced by the new one of aggravated public disorder, as defended by the Executive.

01:13

Isabel Rodríguez: "The reform of the Criminal Code is aimed at not decriminalizing any type of embezzlement"

Judge Pablo Llarena, instructor of the

case of the process

in the Supreme Court, ruled in a resolution that he issued on Thursday that

the crime of sedition cannot be attributed to those who fled from the

process , such as former president Carles Puigdemont, since it has been repealed.

But neither can they be charged with the crime of aggravated public disorder as the Government claimed, because the facts do not fit into the new type of the Penal Code.

The same magistrate Llarena maintains that the reduction in penalties provided for the new embezzlement cannot be applied to the fugitives, as the Executive and ERC wanted, the main promoter of the legal reforms to benefit the Catalan independentistas.

Llarena points out in his order that there has been jurisprudence of the Supreme Court "for more than half a century" where it is argued that the purpose of enrichment is not the only possible one for carrying out the type of crimes of appropriation."

"In particular, the crime of embezzlement clearly cannot be otherwise, given that the criminal type does not require the enrichment of the perpetrator, but, in any case, the illegal reduction of public funds or assets assimilated to them."

With this interpretation, the Government's penal reforms would have no effect to differentiate between embezzlement with personal gain and without enrichment of the culprits.

Llarena also responds in his court order to the explanation given by the Government that only since 2015, with the reform introduced by the Executive of the PP, embezzlement began to be punished even if there was no personal enrichment of the culprit.

"The consideration of embezzlement as an appropriative action in which money or public assets are disposed of as if they were their own, dispossessing public assets of their definitive availability, has not been modified because the Organic Law of 2015 incorporate the cases of unfair administration of public funds into the punitive provision of article 432 of the Penal Code.

As we indicated in our recent judgment of September 13, 2022,

the crime of misappropriation contemplates appropriative conduct, understanding the profit motive as any benefit, use or satisfaction (...).

The profit motive is equally appreciable when the Administration is deprived of public funds to meet payment obligations that correspond to the active subject of the crime and that are completely unrelated to the legitimate functioning of the Administration, as when an obligation is attributed to the Administration of a private nature and totally alien to the public interests that are managed.

In both cases, public goods are disposed of as their own and they are diverted from their destination to obtain a particular benefit”.

as when the Administration is attributed an obligation of a particular nature and totally unrelated to the public interests that are managed.

In both cases, public goods are disposed of as their own and they are diverted from their destination to obtain a particular benefit”.

as when the Administration is attributed an obligation of a particular nature and totally unrelated to the public interests that are managed.

In both cases, public goods are disposed of as their own and they are diverted from their destination to obtain a particular benefit”.

The same day that Llarena frustrated all the Government's objectives with his legal reforms, Judge Manuel García Castellón, an instructor at the National Court of the main corruption cases in Spain, suggested the possibility of filing up to five open criminal proceedings against PP leaders , given that one of the crimes investigated was embezzlement and its classification had changed through the legal reform.

With his writing, Judge García Castellón questioned the Executive, who has been repeating for weeks that the legal reform would not benefit politicians accused or convicted of corruption.

Judge García Castellón avoided ruling on the issue in his judicial proceedings and only asked the Anti-Corruption Prosecutor for an opinion, unlike what Pablo Llarena did in the Supreme Court, who after studying the Government's legal reform on embezzlement concluded that it does not imply any benefit to the defendants by not altering the criteria maintained by the Supreme Court for the last 50 years on these crimes.

The State Attorney General's Office is preparing a decree to set the criteria to be followed in each of the cases where they must rule on the effects of the legal reform in force since Thursday.

Three of the four criminal law professors consulted agree on two ideas that contradict the government's objectives: the crime of aggravated public disorder cannot be imputed to the pro-independence leaders involved in the

process,

and the embezzlement reform does not make it possible to lower the penalties to those accused of this cause in different criminal proceedings for corruption or pro-independence challenges.

Gonzalo Quintero (Rovira i Virgili University): “Perhaps the reforms had a decriminalizing purpose.

But it's not like that".

"What is described in the judgment of the

procés

As regards Puigdemont and others who are in Belgium, it does not fit into the figure of aggravated public disorder.

The profit motive in the embezzlement is not reduced to the incorporation to the personal patrimony of the author but it reaches to expenses other people's to the reasonable ends of the public resources, be it to promote a political program of a party or to publicize an ideology.

These reforms may have had a decriminalizing purpose, but sedition did not lead to something similar but less serious, rather it disappeared altogether.

With the embezzlement, surely the potential beneficiaries understood that the profit motive requirement resolved everything in their favor, but they were badly advised”.

Luis Rodríguez Ramos (Complutense University of Madrid): "Profit is not only economic but also political benefit."

“The new article 432 bis (432 basically coincides with the historical embezzlement reformed in 2015 and therefore is not so new) is confusing, since in the case of money it is not possible to dispose of it without previously appropriating it, as it is a superfungible asset , and the provision of money would only have a reserve if there was evidence of the intention to return it for having taken it only as a loan.

On the other hand, the 'profit' of article 432 is not interpreted by jurisprudence only as financial gain, but rather 'as aesthetic, political, ideological gain or benefit', in short, as personal satisfaction.

It seems then, without knowing the details of the intervention of the rebels of the

procés

in the facts declared a crime of embezzlement, which does seem in principle that this precept continues to be applicable to the case.”

Regarding sedition, Rodríguez Ramos points out: “Sedition was the most serious crime against public order, occupying Chapter I of this Title, and had rebellion as its maximum express limit.

The 'crimes of public disorder', including the aggravated figures of the partially reformed articles 557 and 557 bis, are found in Chapter III, after the crimes of attack, resistance and disobedience.

Even when public disorder is in the same title as the repealed sedition, this figure required a purpose that was to 'prevent', by force or illegal means, the application of laws or the legitimate exercise of public functions or compliance with resolutions. administrative or judicial

Public disorders, on the other hand, do not include these purposes,

and it does not seem easy to fit the conduct of the accused rebels in the cases of 'acts of violence or intimidation' required by articles 557 and 557 bis.

The fact that public disorders are milder than sedition is not a sufficient reason for them to be applied subsidiarily, if the literal nature of the law does not admit the subsumption of those previously seditious behaviors.

Enrique Gimbernat (Complutense University of Madrid): "Profit is the desire to appropriate something as if it were the owner."

The criminal law professor Enrique Gimbernat defended on Onda Cero a thesis similar to Llarena's to reject that the reform of the crime of embezzlement could benefit pro-independence leaders: "The profit motive, in a doctrine that has been unanimous for decades, is the spirit of appropriating the thing as if it were the owner.

If someone steals a mobile from another, that is a theft, in theft one of the elements is the profit motive, whether he uses it for himself, or gives it away, or throws it into the river... In the embezzlement that it occurred as a consequence of the referendum on 1-O those people took public premises, used them for the referendum and used public funds as if they were theirs because they paid with them.

An embezzlement of public funds is the same as a person using them to give them away or going to the town hall box, taking out 200,000 euros and burning them.

And he continues to have the same penalty that he had before.

Fermín Morales (Autonomous University of Barcelona): "The events of 1-O are subsumable in the type of aggravated public disorder."

“The facts that are the object of the sentence of October 1 are subsumable in the new criminal type of aggravated public disorder.

I believe that there is a succession of criminal laws, the new crimes of aggravated disorders embrace acts typically comparable to those that the court prosecuted.

The sentence should be reviewed in accordance with the new criminal offenses as a later law favorable to the prisoner (retroactive application)”.

Regarding embezzlement, it states: “If there is no profit motive, there will be application of attenuated rates (application of public funds for purposes other than those intended or application for private purposes).

Profit does not only exist for payment or compensation of money, alternative forms of direct profit that end up providing their own benefit (indirect or derived profit) must be admitted in typical conduct”.