The Supreme Court has refused to reduce the sentence of two prisoners in the ERE of Andalusia case who had asked for their sentences to be reduced following the legislative reform for this crime adopted a year ago. The Criminal Chamber has confirmed the decision of the Provincial Court of Seville, which had already rejected the petition of the two convicts, the former Andalusian Economy and Finance Minister Carmen Martínez Aguayo and the former General Director of the IDEA Agency (Innovation and Development of Andalusia). Miguel Ángel Serrano Aguilar, who considers that the cases for which the Criminal Code now provides for a reduction in punishment are not applicable in this case.
It is not the first time that the Supreme Court has refused to apply the legal reform agreed in the last legislative period between the government and the ERC (it has already excluded it, among other things, for those convicted of the trial), but until now it had not examined whether this change in the law could lead to fraud in the ERE, since some PP and VOX leaders insinuated that they were accusing the PSOE of trying to favor the convicts of this party in Andalusia. Martínez Aguayo and Serrano were sentenced to six years and two days in prison in the first case and six years and six months in the second case for a crime of subterfuge, which was in media competition with the crime of aggravated embezzlement. Both were jailed last Christmas, almost at the same time as the law reform was passed, which provides for a new, milder form of embezzlement in cases where the crime does not result in personal gain for the perpetrator.
Compared to the up to twelve years in prison for direct personal enrichment, the reform provides for significantly lower penalties (a maximum of three years in prison) if the crime does not constitute personal enrichment. And the reform included another novelty, namely the stipulation that when drafting the amendment to the law, the government assumed that the embezzlement committed by the managers of the process of diverting public funds to the organization of the 1-O referendum and to which these contributed The people convicted of the ERE were also caught: the introduction (Article 433 of the Penal Code) of a new type of embezzlement, which consists in publicly applying for public assets, but different from the one originally envisaged. The Supreme Court has already ruled out that this article could apply to pro-independence groups and now it is also ruled out for the ERE of Andalusia. The public prosecutor's office also did not support reducing the sentence in either case.
According to the Supreme Court's ruling on Martinez Aguayo and Serrano, “it is difficult” to reduce it “to a mere budgetary deviation or to understand that it is a public request other than the one for which it was intended,” it says in the judgment The ERE case is described as “the seizure or theft of large amounts of the public budget under its management in order to transfer it, through an illegal and improper procedure, to another public body so that it could dispose of it, as whether it would be his own, without the need for publication in the BOJA (Official Gazette of the Junta de Andalucía), the distribution is carried out without budget criteria or (…) outside the budget.”
According to the Supreme Court, the new Article 433 of the Penal Code can only be applied “residually” to punish “lower-level” behavior that has not previously been classified as a crime and involves “a diversion of budgetary resources or expenditure that is difficult to justify.” “ These acts were already punishable in the Penal Code until 1995 and the Supreme Court cites in its judgment several penalties imposed in this way, such as the case of a municipal secretary who withheld it without depositing it in the municipal fund or giving it to him handed over to the custodian bank or other employees. , a sum of money with which he fulfilled obligations undertaken by the city council, such as paying for part of the work of a municipal market. In doing so, the court explains, it has made a different public application than the one that would have corresponded to a deposit in the municipal treasury. The Supreme Court points out that in cases like this there is no profit motive and the weakened modality of embezzlement applies.
In the case of the ERE, however, according to the judges, one cannot speak of a simple budgetary deviation, “but rather of the disposal of public assets as if they were their own assets, without limits or criteria, without reference to a public.” Interest that ” at least responsive to a fair allocation of public resources that is programmed and executed.” The verdict was delivered unanimously by a court composed of the President of the Criminal Chamber, Manuel Marchena, and judges Juan Ramón Berdugo, Andrés Palomo (Rapporteur), Ángel Luis Hurtado and Javier Hernández. The judgment of the Supreme Court, which confirmed the sentences of the ERE imposed by the National Court, was passed with the dissenting vote of two of the five judges that made up the court, who had cast a dissenting vote in which they considered that Griñán and four other former senior The board's officials convicted by the Supreme Court did not commit embezzlement.
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