The reform of the Penal Code promoted by the two partners of the government coalition, PSOE and Unidas Podemos, should essentially serve to reform the crime of sedition and adapt the criminal offense and its penalties to the legal systems of countries around Europe in a new step of Pedro Sánchez in his agenda of the reunion in Catalonia, to the extent that sedition was the crime for which the leaders of the process were sentenced to long prison terms, later partially pardoned.
However, after announcing the repeal of this criminal offense and its replacement by an aggravated type of public disorder, which has raised the concern of left-wing parties, trade union organizations and civic entities, the President of the Government, in a new twist , opened the door to reform the embezzlement of public funds, a demand made by Esquerra, a key partner to approve the budgets. In any case, he made it clear that this could be raised in the processing phase of the law based on the amendments that could be submitted to the text. The deadline to submit amendments expired today and these are the most relevant.
Esquerra has presented an amendment to the proposal to reform the Criminal Code that calls for reintroducing the "profit motive" as a requirement for embezzlement in the case of public officials and authorities, and is committed to recovering a wording of article 432, which is refers to embezzlement, similar to the one in force in 1995, although they maintain the range of penalties that the PP introduced in 2015, with between two and six years in prison.
In that reform of 2015, carried out after the independence consultation organized by the Government of Artur Mas on 9-N of 2014, a corporate crime such as unfair administration was included in crimes against the Public Administration, causing it to be classified as embezzlement any diversion of funds from their original destination regardless of whether the money ended up in the pocket of the administrator, in this case the public official, or third parties, and the concept of "personal gain" was eliminated.
In addition to modifying the current article, ERC wants to create a new article, 432 bis, which existed in 1995 and was subsequently eliminated, so that "the public authority or official who, without intending to appropriate it, allocates it to private uses and outside The public function, the public patrimony placed in its charge by reason of its functions or on the occasion of the same, will incur a prison sentence of six months to three years, and suspension of employment or public office of one to four years. Although some interpretations understand that it is a reduction in the prison sentence for embezzlement when there is no profit, ERC sources highlight that it would not apply to the cause of 1-O, if not for the use of public administration resources, as it would be for example, the official car and the like, in the private sphere.
In its basic type, if the profit motive is proven, the Republican proposal sets a prison sentence of two to six years (as up to now). The disqualification would be between six and 10 years. If there are aggravating circumstances that the amount diverted exceeds 40,000 euros (today the limit is 50,000 euros), has a patrimonial or historical value or is about funds with which it was sought to deal with a calamity, the penalties increase. That of imprisonment from four to eight years and that of disqualification from 10 to 20 years. In the most serious case, where it is verified that more than 250,000 euros have been diverted, the penalty must be in the "upper half", that is, four more would be added, reaching 12
To counter the message that the Government could act in favor of the corrupt with a reduction in embezzlement, the PSOE and Unidas Podemos have registered another amendment to their proposed law to reform the Penal Code by which a new criminal type of illicit enrichment to punish public officials whose assets increase by more than 250,000 euros without being able to justify it with up to 3 years in prison. This amendment proposes that public authorities are obliged to justify this enrichment for five years after leaving office, according to socialist sources, and contemplates prison sentences of six months to three years, disqualification from 2 to 7 years, and fines of up to three times what was illegally enriched.
This reform of the Criminal Code has in its sights the mayoress of Marbella and senator of the PP, Ángeles Muñoz, whose assets, according to the Socialists, would have increased by 12 million euros in just three years.
The Republicans have registered four amendments related to public disorder contemplated in article 557 of the Penal Code. ERC is committed to directly suppressing the section related to "peaceful occupations of premises, establishments, offices or homes" since it ensures that they do not affect public peace and therefore, these behaviors do not meet the sufficient level of harmfulness to claim the intervention of criminal law. If this claim were incorporated into the final text, ERC would prevent another 1-O from being a crime, since polling stations in Catalonia were seized peacefully to enable them as voting venues.
Along with this petition, ERC also wants to tweak article 557 regarding violent acts that disturb public peace, so that those who carry out these acts are punished with between six months and three years in jail as long as they involve serious intimidation for people, the public highway is obstructed causing a danger to life or facilities or buildings are invaded, putting the physical integrity of people at risk. With these nuances, ERC wants to avoid the "criminalization of the rights of assembly and demonstration" and make the limits between criminal and administrative law clearer.
On the other hand, Unidas Podemos has reached an agreement with the PSOE to modify their joint initiative to reform the crime of public disorder so that the new article 557 bis of the Penal Code does not serve as an excuse to persecute social protest, remarking that It will only be applied in the event of violence and intimidation. In this way, the purples consider that peaceful civil mobilization is shielded in the new type of aggravated public disorder, included in the reform to repeal the crime of sedition, although they even aspire to further strengthen the guarantees for protest.
The PSOE and United We Can propose the reform of the organic law 6/1985 of the Judiciary to change the three-fifths majority that the General Council of the Judiciary (CGPJ) must add in the election of two magistrates in the (TC) that They correspond by simple majority and establish relatively short and very specific deadlines to complete the process. In addition, the initiative claims that in the event of non-compliance by the members of the governing body of the judges, responsibilities "of all kinds, including criminal" will be incurred.
The new wording establishes that after five business days to present candidacies, the president of the CGPJ must call an extraordinary plenary session within three business days to choose the two magistrates, which must be held within a maximum of three days from the call. In this plenary session, the two magistrates who have obtained the highest number of votes will be elected, and not three-fifths of those cast, as up to now, in a vote that will not be secret.
They also propose that the proposing bodies be the ones that must verify that the designated magistrates meet the required requirements and not the TC itself as up to now and eliminate the need for the renewal to be carried out en bloc -two from the Government and two from the CGPJ-. This is intended to prevent a possible blocking of the Constitutional Constitutional Government appointments or the blocking exercised by conservative judges of the Judiciary to the appointment of the two magistrates that corresponds to the governing body of judges.
The two coalition parties have also proposed prison sentences of between six months and six years, and a fine of six to twelve months, for employers who repeatedly fail to comply with labor legislation. PSOE and Unidas Podemos propose a new section in article 311 of the Criminal Code to persecute constant business attitudes contrary to the legislation. Specifically, for managers of companies that "impose illegal conditions under formulas unrelated to their employment contract." The legal modification persecutes, for example, attitudes of companies dedicated to the delivery of food at home that continue to operate with a majority of autonomous 'riders' and refuse to incorporate them into their workforce, despite the fact that they have been sanctioned.
