The Supreme Court (TS) will announce in the next few days the resolution by which the conviction of the procés against nine pro-independence leaders will be reviewed, once the crime of sedition has been repealed and the crime of embezzlement of public funds has been modified. The magistrates who made up the room that prosecuted twelve leaders of the process are already debating how to interpret the embezzlement reform that meant differentiating the crime based on whether it is for profit or if it is only a mismanagement of public funds.
What is concluded in the Supreme Court will mark the way for the rest of the reviews on embezzlement that are pending in the courts, such as the case opened against former high-ranking officials of the Generalitat that is being resolved in court number 13 of Barcelona. Its interpretation will delimit the reform because, according to sources from the High Court, its jurisprudence is extensive on what should be understood by profit.
When ERC promoted this reform together with the elimination of sedition, supported by the PSOE, the objective of the Republicans was clearly to achieve the review of the sentence of the procés and the acquittal of all those convicted. This was made clear in the defense briefs presented before the High Court for the review of the sentences.
Currently, none of them have a prison sentence because they were pardoned by the Government. However, the measure of grace was partial and the disqualification sentences were not withdrawn, which in the case of Oriol Junqueras, president of ERC, reaches the age of 13, which prevents him from being able to return to political life. According to the organic law of the General Electoral Regime (Loreg), it is a cause of ineligibility to be sentenced "by final sentence, to imprisonment, during the period of the sentence."
In fact, the pardons are being appealed before the Contentious-Administrative Chamber of the Supreme Court, which has paralyzed its resolution until it knows how the review of the sentences is. According to legal sources, in the hypothetical case that they were acquitted, these appeals would have lost the purpose of the case and would no longer go into the merits of the matter.
The thesis that prevails in the TS is that it is not necessary for there to be a direct benefit from the embezzled money to consider it profit. This was reflected by the instructor Pablo Llarena in the order by which he modified the crimes for which the former Catalan president Carles Puigdemont is persecuted.
In his opinion, if the money from the public administration is used to commit irregular acts, as in this case he understands that it was the organization of a referendum expressly prohibited by the Constitutional Court and by the Superior Court of Justice of Catalonia, then there was profit. .
The Prosecutor's Office defends the same thesis. Both the prosecutors in this matter and the circular issued by the State Attorney General himself, Álvaro García, promote that for there to be a profit motive there is no need for a patrimonial benefit. The Public Prosecutor delimits the reform and warns that for the profit motive to be given, there must not be an increase in personal assets, but rather that one act "with awareness and willingness to dispose of public assets as if it were their own, using it for purposes unrelated to the public function to achieve an advantage or benefit of their own or that of others of any kind”.
In the event that this criterion finally goes ahead, it means that for those convicted of the process, the crime of aggravated embezzlement will be imposed, which carries a penalty of disqualification of between 10 and 20 years. That means that since the sentences are in this range, the sentences could be maintained. And this is without taking into account that the court also has to decide whether to replace the crime of sedition with disobedience or public disorder. It could happen that the modifications are not the same for all the condemned. In the case of the leaders of the sovereignist entities at that time, Jordi Sànchez and Jordi Cuixart, neither embezzlement nor disobedience can be applied to them because they were not public officials, but, nevertheless, they were present in the altercations of 20 September 2017 in front of the Conselleria d'Economia. And in the case of the former president of Parliament, Carme Forcadell, only the crime of disobedience would weigh on her, so that in her case her sentence could be extinguished.
Sources from the High Court explain that this review will mark future reviews of the crime of embezzlement after the reform that has been strongly criticized within the judicial career and even from the Anti-Corruption Prosecutor's Office, understanding that it will negatively affect the fight against corruption. .
