The Supreme Court rejects amnesty for embezzlement in the 'trials' and upholds the arrest warrant against Puigdemont | Spain

The Supreme Court said on Monday that it does not consider an amnesty possible for the crime of embezzlement of public funds in the case processesfor which several political leaders of the 2017 independence struggle have been convicted – including Oriol Junqueras, former vice-president of the Generalitat of Catalonia – and for which former regional president Carles Puigdemont, who has since fled justice, is being sentenced. was prosecuted when he left Spain for Belgium. The court also upheld the national arrest warrant against the former head of government. This decision represents a setback for the government of Pedro Sánchez (PSOE) and its investment partners They promoted the amnesty law after the general election from July 23, 2023.

The magistrates of the Criminal Chamber of the Supreme Court and the instructor Pablo Llarena, who is leading the case that is still ongoing against the secessionist politicians who have fled from the courts and are awaiting trial, have taken a series of decisions this Monday of enormous legal significance, during which the great political consequences that it entails will be multiplied. Among other measures, the national arrest warrants against Puigdemont and two of his former advisers, Toni Comín and Lluís Puig, who, like him, are fleeing justice, are also maintained. At the same time, the court will not submit an executive order until the years 2030 and 2031 that Junqueras and the ex-consellers Raül Romeva, Jordi Turull and Dolors Bassa. And in turn, it is agreed to promote a question of unconstitutionality regarding the crime of disobedience for which the last four were convicted.

For her part, Judge Ana Ferrer signed a dissenting opinion, excluding the crime of embezzlement from the amnesty, and supporting the submission of a preliminary ruling to the Court of Justice of the European Union (CJEU).

The embezzlement amnesty was one of the major issues to be resolved by the Supreme Court. The Supreme Court understands that this crime cannot be amnestied because the suspect obtained a personal benefit of a financial nature and there was a 'profit motive'. A statement that the Public Prosecution Service and the Public Prosecution Service reject. “Whoever seizes other people's property – in this case public property – commits a crime, even if the money obtained is used as a gift to third parties, as alms or for some other altruistic cause. Punishment for property crimes is not justified by 'keeping someone else's things', but by 'taking someone else's things', the ICC argues in its resolution, in which it emphasizes: '[Los condenados] They did with the property of others entrusted to them what they could not or would not do with their property. They have intended it for their own personal objectives, which, even if they are political, do not prevent them from also having that specific or sectarian aspect.”

The magistrates' statement is extremely powerful: “[Fueron] public resources that were at the service of their purposes, which were also private, although they could be shared by a greater or lesser number of people. The financing of electoral campaigns, of goals with political significance, of propaganda or the implementation of one's own political ideas, even if it has an idealistic aspect, does not fail to also report a very personal benefit that takes on a patrimonial nature when it is financed. reported significant savings.”

The Supreme Court of Catalonia (TSJC) Yes, last week he granted amnesty for the embezzlement attributed to Miquel Buch, former Minister of the Interior of the Generalitat, as well as deception, for which he was sentenced to four and a half years in prison and twenty years of disqualification. The magistrates of this court, of a lower rank than the Supreme Court, concluded that this crime fell under the umbrella of the norm, as long as the actions were intended to prevent any behavior related to the processes and there was no question of personal enrichment, understood as 'personal advantage of a patrimonial nature'. The TSJC confirmed that, in Buch's case, the embezzled money was not intended for his private pockets, but for purposes related to the struggle for independence: “Any other interpretation would leave the amnesty empty.”

The Supreme Court introduces a different analysis with regard to those already convicted by this court in the case of processes: “The only alternative available to Junqueras, Romeva, Turull and Bassa, if they wanted to contribute to the independence project, was to use the Generalitat's public funds or pay from their own pockets. And they chose the first option. […] All citizens who deemed it appropriate to make a financial contribution to the independence process to a greater or lesser extent saw their assets cut. […] On the contrary, the political leaders who had enormous budgetary allocations and used them to further the same ends did not see their assets changed by those amounts because they did not need them. “Everyone's money served to prevent the money of a few from being taken away,” reads the court's ruling of July 1.

Instructor Llarena, in his resolution of the same day, expresses himself in the same sense about those awaiting trial: “In a personal undertaking that was not only illegal, but completely alien to his governmental responsibilities and the framework for action.” powers of the Generalitat of Catalonia, […] They decided to charge public funds, provided by taxpayers, for the costs of initiatives or personal desires that they themselves directed and developed, making it irrelevant whether these were shared by other citizens or whether the approved expenditures arose from political, cultural, sporting or militant actions, religious or even personal or family pleasure.”

“That disconnect existed”

In addition to the exclusion from the amnesty due to the existence of a personal benefit of a financial nature, the Supreme Court lists another obstacle that, in its opinion, hinders the application of this law to the political leaders of the processes. According to the magistrates, the crimes analyzed may have damaged the EU's financial interests: “It is not difficult to venture that the rupture of the territorial integrity of Europe – that disconnect existed, even if it lasted only a few seconds – constituted a serious threat . risk of harm to the financial interests referred to in Article 2 of the Amnesty Act. And the implications for the EU budget – which includes a share of each country's gross national income, depending on its level of prosperity, and a percentage of each country's VAT collection – are more than clear. could mean the territorial dissolution of Spain and the consequent rupture of the territorial and political boundaries of the Union.”

Blame the courts

The Criminal Chamber's order includes several reproaches to the Cortes, which processed the amnesty law in just a few months. The magistrates, led by Speaker Manuel Marchena, emphasize the “difficulties” they have had to face in interpreting the norm, due to the “fast pace” followed by Congress and the Senate in advancing the norm: “Between the political will that animates the norm after a certain reform and the normative statements with which that will must be realized, there must be a precise, exact coherence, which faithfully reflects the solvent management of the conceptual categories typical of the dogmatics of criminal law. If this is not the case, the predictability and the undeniable legal certainty that accompany both the drafting of the norm that creates a criminal act and the norm that annuls criminal liability resulting from the amnesty will suffer. […] The haste with which this legal text came to light, which is reflected, among other things, in the visible distance between the original draft and the draft ultimately published, contributes decisively to complicating the interpretive work.

The magistrates even point out the “condescending leniency of the Spanish legislature towards embezzlers convicted in a final sentence”, which “contrasts sharply” with the strengthened protection granted by the European Union to the crime of embezzlement of public funds. “It is particularly difficult to reconcile the European Union’s efforts to eliminate the margins of impunity for embezzlers with the Spanish legislature’s will to grant exceptional and personalized treatment to crimes of particular gravity, for the simple fact that they were committed by specific individuals, political leaders and in a given historical period that extends from 1 November 2011 to the 13th of the same month in 2023”, the resolution adds.

The Criminal Chamber continues with its criticism: “The legislator has deemed it necessary to put a bracket on a hundred years of case law and for very specific facts and protagonists. A hook that is closed again for all other citizens who have been convicted of a crime of the same nature.”

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