The Court of Auditors is taking the first step to ask the European judiciary about the amnesty | Spain

This Tuesday, the Court of Auditors took the first step to ask the European judiciary, through a preliminary ruling, whether the amnesty applies to the procedure followed for the embezzlement of funds from the European Union. processes Catalan independence movement. The body has given the parties – the Public Prosecution Service, the accusations and the defenses – a period of ten days to formulate accusations. The reason is to remove the doubts that the application of the rule raises in the person responsible for the case, Elena Hernáez, proposed by the PP, who stated on May 29 seen for sentencing the dossier, which accuses the former presidents of the Generalitat Carles Puigdemont and Artur Mas, the former vice-president Oriol Junqueras and several former councilors and former senior officials and civil servants of the Catalan government. A total of 35 suspects were claimed by the Public Prosecution Service the return of an amount of 3.1 million euros.

The Public Prosecutor's Office and the Catalan Civil Society Entity, as accusing parties, and the defenses will therefore have the opportunity to support or oppose the presentation of said consultations to the European justice, whose viability is controversial in legal circles, given the nature of the Court of Auditors as a supervisory, and not a judicial, body . Be that as it may, this court exercises jurisdictional functions and its judgments can be appealed to the Supreme Court. The deadline for issuing a ruling has been suspended until Hernáez decides whether or not to ask the preliminary question.

The counsel's ruling finds that various legal provisions may conflict with both the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU). In particular the articles of the amnesty law surveyed are 1, 2nd, 8.3, 10 and 13.3. In short, the issues relating to the “fight against fraud and all illegal activities affecting the EU's financial interests”, the “principle of sincere cooperation”, the “principles of equality and non-discrimination” and the “principles of legal certainty and legitimate trust” and to the “principle of the rule of law”, according to judicial sources.

The resolution thus questions several aspects of Article 1 of the Regulation, as they could conflict with European case law that favors a broad interpretation of the concept of 'protection of the EU's financial interests'. Therefore, he explains, “the concept of illegal activity cannot be interpreted restrictively,” but “within it could be understood as protection against embezzlement in a broad sense, and in general the fight against corruption, regardless of its origin or destination. of the defrauded funds”, i.e. regardless of the personal benefit obtained.

It also calls into question Article 13.3 of the pardon measure, which provides for the acquittal of the defendants if the prosecutor and “the aggrieved public sector entities” do not object. The ruling emphasizes that although the Generalitat, the government to which the siphoned funds belonged, withdrew from the process, this file contains a private accusation brought by Catalan civil society. The “broad interpretation” would therefore be incompatible with the lack of mention of all parties involved in the file.

Another point concerns the possibility that the law could infringe the principles of equality and non-discrimination. The ruling questions whether the law respects these principles, as the amnesty for independence leaders could have regulated discriminatory treatment without being justified by “an objective and reasonable criterion.” On the other hand, the text adds, “preference would be given to some specific citizens of a part of the EU” who “carried out certain actions, at the expense of public resources, with the aim of achieving the independence of Catalonia.” At this point, the defense counsel once again wonders that Article 1 of the law only requires that the amnesty be applied because there was no “purpose for enrichment” in the said initiatives. In this context, he argues that the Court of Auditors prosecutes all expenditure that is not intended for the purpose provided for by law, because the misappropriation of funds creates the obligation to make good the damage caused, regardless of “what the illegal purpose was given to it” . public heritage, the independence of Catalonia, the specific advantage or any other advantage.” Providence considers that by making a distinction according to the objectives pursued, the principle of equality is again violated.

The ruling also asks the parties involved in the process to rule on whether the law endangers legal certainty, which requires that the recipients of the regulations can know accurately and with certainty what rights and obligations their are imposed. At this point, the standard could – he adds – “introduce elements of “ambiguity and legal uncertainty” because “it does not identify the persons responsible” for the events for which they can be granted amnesty, nor does it “examine a scope of temporary application of precisely”, but rather that the exemption from responsibilities is generically linked to any act carried out with the aim of achieving the independence of Catalonia or carrying out the consultations that took place on November 9, 2014 and October 1, 2017. ″.

The document also questions whether it is necessary to annul “in a coercive and unilateral manner” the precautionary measures taken, which in this case consisted of bonds and embargoes that were later lifted thanks to the support of the Catalan Institute of Finance , of which the leaders of the processes. Counsel is of the opinion that this provision prevents “the parties to the trial from making accusations and thereby potentially violating their right to a fair trial, with “hearing and adversarial conduct” contained in Article 6 of the European Convention on Human Rights (ECHR). It is also considered “unjustified haste” that a decision on the application of the law must be taken within a period of two months, in a “preferential and summary” procedure, which can be interpreted as “external pressure” exerted by the case law is criticized. of the Court of Justice of the EU.

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