The Constitutional Court has issued a dozen rulings that paint a new picture in the case of the EREs in Andalusia. Resolutions that protect almost all the former senior socialist officials of the Andalusian Government and that reduce the accusations to a minimum, although they do not eliminate the existence of irregularities in the aid system or the criminal responsibilities of several of them. The balance, after a month of deliberations, is ten appeals upheld, five released from prison and the question of how this will affect the dozens of separate pieces pending trial for each specific allocation of public money from these budget items.
The resolutions have not completely erased the fraud in the management of the aid system implemented in the nineties within the Andalusian administration: several former senior officials of the Junta are still convicted of embezzlement, and most of them will continue to be convicted of prevarication, although with lesser sanctions. But it does rule out the existence of a joint and coordinated strategy by the governments of the socialists Manuel Chaves and José Antonio Griñán to maintain the uncontrolled distribution system of social and labour aid until it reaches 670 million euros.
The arguments for upholding the appeals, in whole or in part, have been repeated in almost all the rulings: a legislative process, in this case that of the Andalusian administration, cannot be penalised by criminal means. It is not “foreseeable”, says the Constitutional Court, to consider the draft budget that was later approved by Parliament as prevarication or embezzlement.
In many other cases, prison sentences for embezzlement have been annulled because, in addition, according to the Constitutional Court, neither the Supreme Court nor the Seville Court correctly argued the reason for indicting each senior official beyond attributing responsibility based on their position in the organisation chart.
The balance is ten appeals upheld and two rejected: that of former councillor José Antonio Viera and that of former director of Labour, Juan Márquez. Both were sentenced to seven years in prison and their sentences remain intact due to defects in their appeals. The rest of the defendants have seen their sentences modified: the prison sentences for embezzlement are eliminated and, in addition, the Seville Court must revise downwards the sentences of disqualification, which do not imply imprisonment.
For the Constitutional Court, there were no crimes or irregularities in the kitchen of the budgets where the items and aid that were distributed fraudulently were contained. But it does not close the door to sentences of disqualification, especially in what has to do with the direct awarding of some of these subsidies from items that did not have that objective.
The arguments of the progressive majority of the Constitutional Court mix what was expressed by the Public Prosecutor’s Office in the appeal with what two Supreme Court judges, Susana Polo and Ana Ferrer, said in their dissenting opinions. “It is not considered minimally motivated that Griñán had knowingly carried out the acts,” says the court of guarantees about the Supreme Court’s sentence on his conviction for embezzlement, which brought him six years in prison because all of them “acted with knowledge of the irregularities.”
The most institutional aspect of the case, which marked political life in Andalusia after decades of socialist government, is limited to acts closer to the specific granting of each aid: the budgetary modifications at the end of 2004 in the 3.2H program, for example, can be considered prevaricating, among others. “The aims of said program were not the granting of social and labor aid.” The new sentences, which will not involve jail time and will involve less disqualification, are back in the hands of the Court of Seville.
“It shakes the pillars of the rule of law”
The Constitutional Court’s rulings are not the last that Spanish judges will have to issue on the Andalusian ERE case. The region’s courts have a hundred separate pieces pending final judgment, each one analysing the specific management of the aid that came from the budget item at the centre of the case: 31-L. The so-called “slush fund”. Andalusian courts and tribunals, therefore, still have a lot to say about the irregular management of millions of euros, waiting to find out whether these decisions by the court of guarantees affect these cases in any way.
This week, the Seville Court sentenced the former socialist mayor of Los Palacios y Villafranca, Antonio Maestre, to one year and two months in prison for malfeasance and embezzlement in relation to a grant of 750,000 euros that his city council awarded illegally. Money that came, precisely, from this “slush fund”.
These are rulings that cannot be appealed, but they have not been unanimous. All the deliberations have symbolised a deep division between the majority and progressive sector of the plenary, which has pushed the motions forward, and the minority and conservative sector, which with its four votes has not managed to make effective its opposition to the arguments that exonerate the former senior officials of the Junta.
There are arguments that run through the dissenting votes signed, sometimes together and sometimes separately, by the four members of the conservative sector: Ricardo Enríquez, César Tolosa, Concepción Espejel and Enrique Arnaldo. For example, they reproach the majority of the plenary for having turned the Constitutional Court into a new criminal court to which to appeal Supreme Court sentences, going beyond its usual limits. But they also openly accuse their colleagues of attacking the foundations of democracy. “The sentence shakes the basic pillars of the Rule of Law,” said Enrique Arnaldo in one of them. César Tolosa, former Supreme Court judge, believes that these resolutions affect “the effective prosecution of crimes of institutionalized corruption committed by the Government or its members.”
These are sentences that have not been welcomed by the Criminal Chamber of the Supreme Court, which in September 2022 essentially upheld the convictions and the existence of the political plot of the ERE. The accusations of sentencing the case in an “unpredictable” manner or, directly, ignoring the separation of powers and without sufficient arguments, have not gone down well in the Villa de Paris park: “It is hard to believe that the Constitutional Court can grant legitimacy to aid that was processed without an economic report or a feasibility study that justifies it, or payments for transfers of financing over which there was no control whatsoever,” said Juan Ramón Berdugo recently, one of the Supreme Court judges who sentenced the case two years ago.
Source: www.eldiario.es
