The magistrate of the Supreme Court Pablo Llarena, instructor of the cause of the
, has dismissed this Tuesday all the appeals that were presented against the terms in which he decided to apply to the former president of the Generalitat Carles Puigdemont and the rest of the independence leaders who fled from justice ―Antonio Comín, Lluís Puig, Clara Ponsatí and Marta Rovira― the recent reform of the Penal Code that repealed the crime of sedition and reformed that of embezzlement.
The appeals now rejected were raised both by the defendants' defense (except that of Marta Rovira) and by the State Attorney's Office and the Prosecutor's Office.
After this order, Puigdemont, Comín and Puig are prosecuted in absentia (fugitives) for embezzlement and disobedience;
Rovira and Ponsatí, only for disobedience, since they were not accused of embezzlement.
The instructor confirms the thesis of the high court, which considers that the penal reform agreed last December by the Government and ERC does not affect the prosecution of former secessionist leaders for embezzlement because the new type of attenuated embezzlement cannot be applied to them.
The Supreme Court does apply the reform regarding the repeal of the crime of sedition, but refuses to replace that crime with the new aggravated formula of public disorder - contrary to what the Prosecutor's Office and the State Attorney's Office requested - and considers that the facts contained in the
sentence that served to convict them of sedition now only fits the crime of disobedience.
Current search and arrest warrants
In the order notified this Tuesday, Llarena also maintains the national search, capture and imprisonment orders issued against Puigdemont and Comín and that the defenses of both had appealed as they considered them contrary to their immunity as MEPs.
The magistrate bases his decision on the fact that the EU treaty, regarding the operation of immunity in Spanish territory, attributes the recognized privileges to the members of the national Parliament, and points out that, since both were prosecuted on March 21, 2018, the immunity that they achieved later, on June 13, 2019 on the occasion of their proclamation as elected members of the European Parliament, does not require the request for a request to issue a national arrest warrant.
However, Llarena warns that, in the event that they were detained in Spain in the future, if it were considered justified to maintain their imprisonment beyond the time required for them to testify before the judge, they could be authorized (as contemplated by European justice) to attend parliamentary meetings, provided that their immunity had not been waived, a decision on which the General Court of Justice of the EU must rule in the coming months.
Against Lluís Puig there is also a national search, capture and imprisonment order issued, while against Rovira and Ponsatí there is only a national arrest warrant for them to testify before the investigator.
To achieve the delivery to Spain of Puigdemont and the rest of the fugitive leaders, Llarena has to send new Euro-orders adapted to the new Penal Code, but the instructor does not plan to take that step until the European 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.
The instructor will only predictably advance the Euro-order against Puig, the only one of the
who is not a member of the European Parliament and whose delivery has already been rejected by Belgium.
To ratify his thesis on how the reform of sedition and embezzlement affects the fugitive ex-independence leaders, Llarena has the support of the Supreme Court that tried Oriol Junqueras and the rest of those already convicted, which last February reviewed his sentence and chose to apply the changes to the Penal Code along the same lines as the process instructor does
accusing them of embezzlement (not attenuated) and not applying the new crime of public disorder.
Puigdemont asked that he be acquitted of embezzlement or, in any case, they be attributed the attenuated type introduced by the reform because, he assures, the alleged embezzlement committed by him by accepting the diversion of funds to organize the illegal independence referendum of 1-O it lacks the “profit motive” required by the most serious modality of this crime, which is what Llarena attributes to it.
The investigator rejects this request and recalls that what this crime requires is not "the desire for personal enrichment", but the intention to "obtain any type of benefit, use or satisfaction", such as "the desire to dispose of public funds as owner."
The Prosecutor's Office and the State Attorney's Office had demanded that the investigator, in application of the penal reform, replace the prosecution for sedition with the new modality of aggravated public disorder.
Failure to do so, warned the Lawyers, would limit their right to accuse former pro-independence leaders of this crime in the future.
Llarena denies this interpretation and argues that the processing must guarantee all the fundamental rights of the accused;
However, this position in the indictment does not imply closing the doors definitively to the accusations that later attribute other crimes to them.
That door would be closed, however, if the magistrate issues the new Euro-orders against Puigdemont, Comín and Puig just for disobedience and embezzlement and Belgium agrees to hand them over for those crimes.
In that case, Llarena admits, they could not be tried for public disorder.
The instructor alleges that the prosecution that he now carries out does not condition future Euro-orders, although he also assumes that "the state of the case does not suggest that it can be altered" the criteria that the judge has now used to replace sedition only with disobedience.
"It is feasible that the qualification is projected in the Euro-orders that are eventually issued in the future," said the judge, who admits that this "would condition the prosecution space."
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