The investigating judge of the progress of the procedure, Pablo Llarenarejected calls for reform presented by the former president of the Catalan Generalitat Carles Puigdemont and former advisors Antoni Comin and Lluis Puigas well as by the prosecution and the prosecution, against its order, dated July 1, in which it declared amnesty not applicable to the crime of embezzlement of public funds for which the first three are being prosecuted.
In an order, the instructor emphasizes that the allegations are without any foundation, since it is the literal provision of the amnesty law that imposes the judicial decision that is contested, and the rule establishes the exclusion of its application to the crimes of embezzlement in cases where the subject acts with “the aim of obtaining personal advantage of a patrimonial nature”, which is what is supposed to happen in this case.
In this sense, the judge emphasizes that the amnesty for this crime would have been appreciated if the law had proclaimed, without restrictions, the granting of pardon to all crimes of embezzlement committed to promote the referendum of October 1, 2017, or if it had limited the exclusion to cases of enrichment in the etymological sense, that is, an increase in wealth.
However, remember the order, article 1.4 of the law states that the concept of enrichment also extends to actions in which a personal advantage of a patrimonial nature is obtained, which includes those who, to the detriment of public funds, obtain any advantage. have demanded the payment of a monetary consideration (content of the assets), even if this does not significantly increase their level of wealth.
In this regard, the judge cites the contested order to recall that the defendants “decided charge the cost of the referendum to public funds provided by taxpayers 1-Owhich was an enterprise that was not only illegal and contrary to the Constitution and the Statute of Catalonia, but also alien to its governmental responsibilities and the powers of the Generalitat.
Judge Llarena also rejects the parties’ allegations based on the content of the dissenting vote, signed by a judge, who disagreed with the order of the Chamber that judged the trial, which ruled in favor of Llarena by excluding the application of the amnesty to the crime of embezzlement that was examined there.
In this sense, the instructor rejects that there is an attack on the principle of legality, since it is not a question of his “disquisition” or an interpresentation of the Chamber, but rather “of the legislator who proposed an authentic interpretation of the term.” “enrichment” in article 1.4 of the law, specifying that it is necessary to conclude that there is “enrichment objective“when the active subject intends to realize a personal benefit of a patrimonial nature, even if it is not a material increase in capital or patrimonial assets suggested by the philological meaning of the word.”
“Taking into account what the dissenting vote states – indicates the instructor – and although there are no legislative precedents to grant amnesty for the crimes of embezzlement, in the more than two hundred years of jurisprudence of the Spanish Supreme Court there is not a single resolution which refuses to give the same criminal response to subjects who have materially and unjustifiably increased their assets to the detriment of public funds, as to those who (also unjustifiably and to the detriment of public money) have obtained any other benefit or advantage that does not entail a cash increase in their capital or assets. “A state of case law that makes it perfectly predictable that the regime of application of the amnesty will also be similar for both behaviors, as established in article 1.4 of the law.”
He adds that this equality in the criminal response is reproduced in the case law of the countries around us and is even reflected in the regulatory provisions of Union law, which in its Directive 2017/1371 of the European Parliament and of the Council, of July 5, 2017, on the fight against fraud, considers embezzlement as a crime “any intentional act by any official to whom the management of funds or assets has been entrusted directly or indirectly, to commit or disburse funds, or to appropriate or use assets.” “in a manner contrary to the purposes for which they were intended.”
On the other hand, the order states that the decision of amnesty for the crime of embezzlement adopted by the High Court of Justice of Catalonia in other cases, and referred to by the applicants, is fully compatible with what the Second Chamber maintains.
“The public official who decided to spend public funds to ensure the protection of one of the current applicants did not act with the aim of enriching himself in the grammatical sense of the term, nor with the aim of obtaining the personal benefit provided for by law. in its article. 1.4 This is an amnestiable case according to LO 1/2024, given that the crime of embezzlement consisted of an act of appropriation for the benefit of a third party and the possible liability of the person who paid for his escort work with them. The funds were also amnestiable. “This individual could not be an active subject of the crime of embezzlement because he was not the manager of public funds and had to be considered a mere participant in the crime of embezzlement perpetrated by another”, the judge emphasizes.
For the instructor, it is the reading proposed during the dissenting vote which would lead to emptying of its meaning certain normative provisions because they are still inapplicable.
Likewise, the judge emphasizes that the principle of predictability invoked by the private vote or the predictability of the law to which the Attorney General of the State referred in the report he delivered on the occasion of the opening of the new judicial year last year is not violated either. September 5. “The predictability of the law – says the order – does not mean that the norm must be applied in accordance with the aspirations of an accused who claims to have drafted and proposed the norm with the approval of which he seeks to obtain impunity.”
The order also rejects Vox’s appeal in which it requested that the amnesty not be applied to crime of disobedience. For her part, she agrees with the leader of the ERC, Marta Rovira, on a procedural point, sharing that the rejection of her file for disobedience corresponds to the Chamber, which therefore confirms her appeal and concludes the summary concerning her.
