The Constitutional Court (TC) has accused the Provincial Court of Seville and the Supreme Court of Justice of having interpreted the law to convict former Andalusian presidents Manuel Chaves and José Antonio Griñán of fraud and embezzlement in the ERE case. have been declared null and void.
The Court of Guarantees reviewed these rulings and ordered the responsible courts to draw new conclusions, eliminating the crime of embezzlement – for which Griñán was sentenced to six years in prison – and partially that of fraud against Chaves. The magistrates of the TC do not believe it has been proven that former President Griñán, as an advisor to the Ministry of Finance, knew, much less instigated, the embezzlement of public funds that made possible fraud in social employment aid. “It is not considered minimally motivated that Griñán carried out the acts with will and knowledge”, according to the ruling of the TC.
Furthermore, the Court of Guarantees warns that the conviction of the Court of Seville, and the one upheld by the Supreme Court in 2022, “involves an extravagant and unpredictable interpretation of the typical elements of 'resolution' and 'administrative matter' that violates the fundamental right to criminal legality.”
Seven votes in favor and four against
The two sentences partially recognizing the Amparo calls of Chaves and Griñán follow the same line of argument already supported by the defenses of former councilors Antonio Fernández, Magdalena Álvarez, Francisco Vallejo and Carmen Martínez Aguayo.
In 2019, the Seville Court sentenced Griñán to six years and two days in prison for embezzlement and fifteen years and two days of disqualification for fraud, while his predecessor, Manuel Chaves, was sentenced to nine years of disqualification for fraud upheld by the Supreme Court in 2022, rejecting their appeals against the original ruling of the provincial body, by three votes against two of the magistrates of that court.
Now, the TC, by seven votes in favour and four against of the magistrates responsible for the case, has partially upheld the Amparo appeal of the former Socialist Presidents of the Council, annulling the original judgment of conviction of the Court in respect of them and ordering that body to issue a new judgment incorporating the grounds adopted by the Court in this case.
The TC's ruling on Chaves' appeal for protection, 64 pages long and reported by Europa Press, states that Chaves was convicted as President of the Governing Council on the date of the events, “for a continuous crime of deceit in preparing the preliminary drafts of the Budget Law (from 2000 to 2009), for approving them as draft laws in the Government Council and for introducing budget amendments” with the aforementioned “specific procedure” for financing early retirement for irregular labor regulations files and aid arbitrarily and without advertising.
According to the TC, both the First Section of the Court of Seville, when imposing its sentence on the former Andalusian president, and the Supreme Court, when rejecting his appeal against the original sentence, maintained that “the actions carried out on the occasion of participation in the preparation of the draft budget laws and their approval as a bill – the preparatory acts, in the terminology of the contested resolutions – must be classified as resolutions relating to an administrative matter in order to realise that the typical elements of the crime of prevarication are present.” approach that concerns both former presidents.
Judges, “subject to the rule of law”
However, after a thorough analysis of the case law and the arguments put forward by each of the parties, the Constitutional Court states that “it cannot be considered that participation in the approval of draft budget laws and their approval as draft laws can be classified as resolutions that fall back on administrative matters.”
“Having understood it in this way, the contested judgments have been given an extravagant and unpredictable interpretation of the typical elements of 'resolution' and 'administrative matter', which are contrary to the fundamental right to criminal legality, guaranteed by Article 25 of the Spanish Constitution”, he warns. . the TC in the two sentences.
“The reasoning of the judgments appealed against (…) means that the parliamentary approval of the law is deprived of all relevance, which implies that the central role of the Andalusian Parliament in the institutional framework designed by law is ignored”; points out the TC, warning that “judges, subject to the rule of law, have a duty to respect it, regardless of the judgment that its content deserves” and “only when they consider that it is unconstitutional and that its validity depends on the judgment they must raise the issue of unconstitutionality, but outside of this case they will not be able to question its provisions and, even less, take them into account.
In the case of the TC ruling regarding Griñán's appeal for protection, of 146 pages, the court reiterates, regarding the deception discovered by the Court and the Supreme Court, that the rulings of such bodies “involve an extravagant and unpredictable interpretation of the typical elements” of 'resolution' and 'administrative matter'.
With regard to the embezzlement attributed by such courts to this former President of the Council, the TC explains that “the embezzlement behaviour cannot result from the use of a budgetary procedure which contemplates the payment of aid through transfers of funds and the signing of agreements protected by law, but, where appropriate, from the making available of budgeted resources for purposes not provided for in the programme or which are even devoid of such a public interest.
“Inferential judgment”
In this sense, the TC considers that the 'conclusion judgment' carried out 'is not sufficient to establish in a specific and precise manner that Griñán, with knowledge of the facts, intervened in the implementation of one or more of the decisions on funds. nothing to do with the budgetary coverage.”
“It is true that he was aware, through the financial control reports and, in particular, through the supplementary report to the 2003 compliance report, notified in 2005, that the aid was not subject to the requirements of the procedure applicable to exceptional subsidies – and that, on the basis of that knowledge, it is reasonable to conclude that the risks of diversion that this reduction in controls could entail were present. Now, this risk was inherent in the budgetary system established by law,” the TC says.
According to the said authority, it is not enough to demonstrate that the aid granted was not in accordance with the subsidy procedure, a conduct protected by the provisions of the budget laws, to understand that Griñán has committed the conduct of which he is accused. It is necessary to prove who actively or negligently participated with the knowledge that public funds from the 31L programme are being financed [el fondo de 680 millones de euros del que salieron las ayudas legales e irregulares] “They were granted without there being a public purpose justifying their grant or for purposes other than those intended.”
This, while according to the TC “the Intervention reports that the analyses of the lower court's judgment do not demonstrate as evidence of the subjective type of embezzlement that Griñán would have carried out the acts (attributed to him) with sufficient representation.” whose support had to be provided outside any public purpose. It is therefore not possible to affirm, without drawing too open an inference, that the serious deviations committed by the authorities were presented with the degree of specificity required for the subjective attribution of a crime of consequence, such as the crime of embezzlement of the Employment Department”, according to the TC.
“It is not considered minimally motivated that Griñán carried out the acts proven by the judgment in the knowledge that the Ministry of Labour had provided aid that did not correspond to any public purpose (…), which allows us to conclude that his presumption of innocence has not been respected,” the TC concludes regarding the former president.