A year and a half after approving the pardons for those convicted of 1-O to “open a new time for dialogue”, the Government opted to follow the path of judicial de-inflammation of the process with a “risky” reform of sedition crimes and embezzlement. The Executive assumed the political cost of this change in the Penal Code with the premise of shelving the Catalan litigation and avoiding an upturn in tension in Catalonia at the prospect of new forceful decisions in the courts.
The Prosecutor’s Office tries to cover the leaks of the embezzlement reform to prevent it from benefiting the corrupt
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For Esquerra, with whom this reform was negotiated, it was an essential change. Above all, to limit the criminal response for dozens of senior officials and officials who are still awaiting trial. It is what is known as the “second row” of the Government, very relevant for the Catalan republicans as it affects some of their cadres. Among them, two close collaborators of Oriol Junqueras: Josep Maria Jové and Lluís Salvadó. Both are accused of disobedience, prevarication, embezzlement and disclosure of secrets.
The main objective of replacing the crime of sedition with that of aggravated public disorder was to promote the return of Carles Puigdemont and the rest of the fled leaders with the prospect of lower sentences, as well as to limit the disqualification sentences for Junqueras and the rest of those convicted. who were released from prison after being pardoned. The embezzlement reform was hatched later and was specially designed for that “second row” of leaders who are awaiting trial five years later. Both changes were expressly approved at the end of the year.
There are still a few days left to find out the real effect that the repeal of sedition and the reform of embezzlement will have on those on the run, convicted and accused. The last word will be held by the Criminal Chamber of the Supreme Court. But the interpretation that both the instructor of the process in that court, Pablo Llarena, and the Prosecutor’s Office have made so far neutralizes a good part of these objectives. Only the State Attorney’s Office, dependent on the Ministry of Justice, broadly supports the Government’s thesis.
The position of the Prosecutor
Despite this, the approach in Moncloa is that, whatever happens, the Government has already done what it had to do in Catalonia. “We found ourselves with a very serious problem that was inherited and that we decided to face, even if it entailed taking risks,” they explain in the president’s team in reference to the political wear and tear derived from this reform. “People expect governments to solve problems, so we trust that the political and social normalization of Catalonia will even become an electoral asset for us,” they trust.
After the order in which Llarena rejected that the incidents that took place around 1-O can be classified as “new” aggravated public disorders, the Government confirmed this week that the Prosecutor’s thesis is that the embezzlement reform It does not mean a benefit for the independentistas involved in the process. This was stated by its highest representative, Álvaro García Ortiz, in a mandatory decree for all prosecutors.
The reform of the crime of embezzlement recovered the wording prior to 2015 by focusing on the existence or not of profit. The will of the Executive and ERC was to establish a difference between stealing public money and squandering it on issues unrelated to the public function, which implies lesser penalties. And, in this way, adapt a criminal response that they consider disproportionate to the events of autumn 2017.
But the interpretation of the Prosecutor’s Office is that the profit motive goes beyond personal enrichment. This extensive application of embezzlement has allowed, for example, prosecutors to ask to apply the aggravated rate both to the leaders of the procés already convicted (and partially pardoned) and to those who have fled outside of Spain. The public money did not end up in their pockets, but the Public Ministry understands that the facts proven in the sentence do prove that they appropriated those funds and diverted them to create “the necessary infrastructure and means to hold an illegal referendum.” This harsh modality of embezzlement provides for penalties of eight to 12 years in prison and 10 to 20 years of disqualification.
The Supreme Court prosecutors also rejected that the diversion of funds for 1-O fits into the attenuated type that the Government agreed with ERC thinking about the process and that it reduces the punishment if a “public use” of that money is made different from what was planned. : up to a maximum of four years in prison and six years of disqualification. His argument is that it was used to “commit a crime”, with which “it cannot be understood as a destination for public purposes”. The State Attorney differs from these theses and believes that the embezzlement of the process does fit into this attenuated modality. She understands that it is “obvious” that in the public sphere there may be actions that are contrary to the law and even criminal and that this “does not prevent us from considering these actions as public.”
With this argument, the Prosecutor’s Office requested that the disqualification sentence for Junqueras and the former ministers who were convicted of sedition and embezzlement be maintained in full. This interpretation will mark the path of what the Public Ministry does in the case opened against Jové and Salvadó in the Superior Court of Justice of Catalonia and against the rest of senior officials who await trial in the Barcelona Court as they are not registered. In the first case, the Prosecutor’s Office will present its indictment next week. The State Attorney’s Office did ask to reduce the sentences of all those convicted by almost half.
Moncloa points to ERC
In ERC they insist on claiming the benefits of the reform, despite the null effects that, for the Prosecutor’s Office, it will have for the charges awaiting trial. In the presentation of the writings for which Oriol Junqueras and the rest of the ERC politicians convicted by the Supreme Court requested acquittal, the deputy secretary general for the fight against repression of the Republicans, Marta Vilaret, made ugly that Judge Llarena and the Prosecutor’s Office “obviate” the modification of the Penal Code.
The interpretation contrary to the interests of ERC of the embezzlement reform supposes, in Vilaret’s opinion, a “coup d’état by the high judiciary”. Far from admitting that the reform has not had the desired effect, Vilaret clung to the different assessment between the Prosecutor’s Office and the State Attorney’s Office on the type of embezzlement applicable to the process to consider that the independentistas “have hit the right key.”
Faced with the hypothesis that this wear and tear assumed by a reform of the Penal Code tailored to the independentistas may not end up having the expected effects, the Government is already beginning to distance itself and point to the Republicans. They explain from the Executive that the final wording of this reform covers all the aspirations raised by ERC throughout the negotiation with the PSOE and that, basically, they are summarized in two areas: clear a hypothetical return of Junqueras to active politics and alleviate the criminal situation of the dozens of intermediate pro-independence charges that were still awaiting a judicial decision. The Socialists admit to having accepted these ERC approaches, so now, they believe, there is no room for reproach.
Although things do not end up turning out as expected, they do not foresee at the moment in Moncloa that the Republicans now give a change of direction to their strategy of moderation and dialogue away from the maximalist postulates of Junts, beyond verbalizing some kind of distance with the Government that has more staging than political charge. “If it doesn’t work out for them, they can victimize themselves again, but not radicalize themselves,” they say in the PSOE, where a return to the rupturist postulates of 2017 is ruled out.
On whether the ERC abstention this week from the anti-crisis decree voted in Congress can be interpreted or not as a first sign of a change in attitude in the Republicans, the Socialists play down the importance: “They have voted against a thousand laws and now, in addition, we are in pre-campaign ”, they point out.
In Ferraz, there are those who believe that a reading of the new Penal Code by the Justice contrary to what was foreseen can even facilitate the political narrative of the Socialists. “It would be the verification that this does not benefit anyone in particular and would reinforce the approach that it was only a matter of standardizing our legislation to those of our environment,” they point out. This same week, in his speech in Congress, Pedro Sánchez mentioned countries such as France, Germany, Italy or Belgium as examples of places where the extradition of former president Puigdemont could now be feasible thanks to the repeal of the crime of sedition.
