The government sponsored two legislative reforms to reduce the cost of embezzlement and end sedition, replacing it with heightened public disturbance with much lesser penalties. 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 were applied, the judges issued orders or verdicts with conflicting interpretations and a common point: all court decisions, in one way or another, defeat the goals that the executive branch pursued with each of the legislative reforms.
Judges at the national court suggest the reform could benefit those accused of embezzlement, contrary to what the government claims, and have asked the anti-corruption prosecutor for criteria. Supreme Court justices maintain that the reform does not favor independentists convicted or charged with embezzlement, but that those involved in the trial are exempt from charges of sedition since that crime has been abolished and not replaced by the new crime of aggravated publicity can be disruption as defended by the executive.
Judge Pablo Llarena, instructor of the Supreme Court’s trial, ruled in a resolution he released Thursday that the crime of sedition cannot be blamed on those who have fled the trial, such as former President Carles Puigdemont, since it was overturned . But they also cannot be charged with serious public disorder, as the government claims, because the facts do not fit into the new penal code.
The same Judge Llarena claims that the reduction in penalties envisaged for the new embezzlement cannot be applied to the refugees, as wanted by the executive and the ERC, the main promoter of legal reforms in favor of the Catalan independentistas.
Llarena notes in his order that there has been Supreme Court jurisprudence “for more than half a century” arguing that the purpose of enrichment is not the only possible purpose to commit the type of appropriation crime. “In particular, the crime of embezzlement clearly cannot be otherwise, since the criminal nature does not require enrichment of the perpetrator, but in any case unlawful diminution of public funds or equivalent assets.”
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Under this interpretation, the government’s penal reforms would not be effective in distinguishing between embezzlement for personal gain and embezzlement that does not enrich the perpetrators.
In his court order, Llarena is also responding to the government’s declaration that only since 2015, with the reform introduced by the executive of the PP, has embezzlement been punished even if the perpetrator is not personally enriched. “The consideration of embezzlement as an act of appropriation, in which money or public property is alienated as if it were their property, thereby depriving public property of its ultimate availability, has not been changed, since the Organic Law of 2015 covers the cases of mismanagement of public funds in the penal provision of Article 432 of the Criminal Code. As we indicated in our recent judgment of September 13, 2022, the crime of embezzlement includes appropriate behavior where the profit motive is understood as benefit, benefit or gratification (…). The pursuit of profit is just as noticeable when the administration is deprived of public funds in order to meet payment obligations that correspond to the active object of the crime and are unrelated to the lawful activity of the administration, as when the administration is attributed an obligation of a private nature and the completely foreign to managed public interests. In both cases, public goods are disposed of as their own and diverted from their destination to achieve a specific benefit.”
On the same day that Llarena’s legislative reforms had thwarted all government goals, Judge Manuel García Castellón, instructor at the National Court for the most important corruption cases in Spain, proposed the possibility of opening up to five open criminal cases against PP leaders, given that one of the crimes under investigation was embezzlement and the legal reform had changed the classification.
Judge García Castellón’s letter challenged the executive branch, which has been repeating for weeks that the reform would not benefit politicians accused or convicted of corruption. Judge García Castellón avoided ruling on the issue in his court proceedings, only asking the Anti-Corruption Prosecutor for an opinion, unlike Pablo Llarena before the Supreme Court, who, after examining the government’s embezzlement law reform, concluded: that this involves no benefit to the accused by not changing the criteria the Supreme Court has established for these crimes over the past 50 years.
The Attorney General’s Office is preparing a decree to establish the criteria to be observed in each of the cases in which they will have to decide on the effects of the legislative reform that has been in force since Thursday.
Three of the four criminal law professors surveyed agree with two ideas that run counter to the government’s goals: the crime of aggravated public disturbance cannot be blamed on independence movement leaders involved in the process, and embezzlement reform does not allow for lowering the sentences for those who do are accused of corruption or pro-independence claims in various criminal cases in this matter.
Gonzalo Quintero (University of Rovira i Virgili): “Perhaps the reforms had a purpose of decriminalization. But it is not like that”. “What is described in the Procés judgment in relation to Puigdemont and others who are in Belgium does not fit the figure of aggravated public disorder. The pursuit of profit in embezzlement is not reduced to incorporation into the personal property of the author, but extends to the expenditure of others for the reasonable purpose of public funds, whether to promote a party’s political program or to spread an ideology. These reforms may have had a decriminalizing purpose, but hate speech did not result in anything similar, but less serious, and disappeared altogether. In the case of embezzlement, the potential beneficiaries certainly understood that the profit motive ruled everything in their favor, but they were ill-advised.”
Luis Rodríguez Ramos (Complutense University of Madrid): “Profit is not only economic, but also political benefit.” “The new Article 432bis (432 basically aligns with the historical embezzlement reformed in 2015 and is therefore not that new) is confusing as when money cannot be disposed of without prior appropriation, as it is a fungible asset, and the provision of money would only have a reserve if there was evidence of intent to return it because it was only borrowed. On the other hand, the “profit” of § 432 is not only interpreted by the case law as a financial profit, but “as an aesthetic, political, ideological profit or advantage”, in short as personal satisfaction. It seems, therefore, without knowing the details of the intervention of the Procés rebels in the events declared as embezzlement crimes, that in principle this commandment seems to remain 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 rebellion was its express maximum. The “crimes of public disorder,” including the aggravated numbers of the partially reformed Articles 557 and 557bis, are found in Chapter III after the crimes of aggression, resistance, and disobedience. Although public disorder is in the same title as sedition abolished, this number requires a purpose which is to “prevent, by force or unlawful means, the application of law, or the lawful exercise of public office, or the observance of administrative or administrative orders “. judicial On the other hand, public disorder does not include these purposes and it does not seem easy to attribute the behavior of the accused rebels in cases of “acts of violence or intimidation” required by Articles 557 and 557bis. The fact that public disorder is milder than sedition is not a sufficient reason for its subsidiary application when the literal nature of the law does not permit the subordination of these previously inflammatory conducts.
Enrique Gimbernat (Complutense University of Madrid): “Profit is the desire to appropriate something as if it were the owner.” Criminal law professor Enrique Gimbernat defended a thesis similar to Llarena’s to Onda Cero to deny that reforming the crime of embezzlement could benefit independence leaders: “The profit motive, in a doctrine unanimous for decades, is the spirit of appropriating the matter as if it were its own.” Owner. If someone steals someone else’s cell phone, that’s a theft, in stealing one of the elements is the profit motive, whether he uses it for himself or gives it away or throws it in the river… In the embezzlement that the referendum made to 1-O happened that these people seized public premises, used them for the referendum and used public funds as if they owned them because they paid with them. It is tantamount to embezzling public funds if someone gives them away or goes to the town hall box, withdraws 200,000 euros and burns them. And he continues to have the same penalty as before.
Fermín Morales (Autonomous University of Barcelona): “The events of 1-O can be subsumed in the nature of an aggravated public disturbance.” “The facts that are the subject of the October 1 judgment can be subsumed under the new criminal category of serious public disturbance. I believe there are a number of criminal laws that cover new crimes for serious illness typically comparable to those prosecuted by the court. The punishment should be reviewed according to the new criminal offenses as a later law favoring the prisoner (retroactivity)”.
Regarding misappropriation, it states: “If there is no intention to make a profit, reduced rates are applied (misappropriation of public funds or use for private purposes). Gain does not exist solely for the payment or compensation of money, alternative forms of direct gain that ultimately yield their own benefit (indirect or derived gain) must be allowed in typical behavior.”
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