The investigating judge of the criminal case against those responsible for the process, Pablo Llarena, has dismissed all the reform appeals filed against his order, dated January 12, which he applied to the defendants who are declared in absentia, Carles Puigdemont, Toni Comín , Lluís Puig, Clara Ponsatí and Marta Rovira, the reform of the Penal Code that repealed the crime of sedition and reformed that of embezzlement. The appeals now rejected were raised both by the defenses, except that of Marta Rovira, and by the State Attorney and the Prosecutor’s Office.
In a 51-page order, the magistrate of the Criminal Chamber of the Supreme Court confirms that the consequences of the penal reform for the defendants is that the prosecution of Puigdemont, Comín and Puig for the crime of embezzlement of public funds continues, ruling out that the facts fit into the attenuated type proposed in the reform, while the facts referring to the repealed crime of sedition now only fit into the crime of disobedience. In this sense, the new order rejects the allegation of the State Prosecutor’s Office that the new crime of aggravated public disorder should be applied.
Faced with what was alleged by the defenses of Puigdemont and Comín, who consider the national search, capture and imprisonment orders issued against them contrary to their immunity as parliamentarians, the order recalls that the EU treaty, regarding the operation of immunity in Spanish territory, attributes the privileges recognized to the members of the national Parliament.
It adds that, since the appellants were prosecuted by order of March 21, 2018, the immunity they achieved on June 13, 2019 on the occasion of their proclamation as elected members of the European Parliament, does not impose the request for a request for the adoption of the measures taken. Notwithstanding, the judge explains, that in the event that in the future the defendants were materially deprived of liberty in Spain, if it were considered justified and effective to maintain their imprisonment beyond the time required to receive their statement, it would not be excluded ( as the CJEU contemplates) the authorization to attend the various parliamentary meetings, provided that their immunity had not been suspended.
It also discards the argument of the appellants that the existence of a procedure in the Supreme Court and another in the Court of Accounts would violate the principle ‘non bis in idem’, which prevents being sanctioned twice for the same facts.
The instructor explains that the accounting responsibility procedure only analyzes the cases in which the person in charge of public funds is obliged to return them, without deriving any sanction for their behavior that, in cases of fraud or negligence, will be dealt with in the criminal or, where appropriate, disciplinary proceedings. Whereas the criminal procedure, when its initiation is appropriate, will analyze the action that motivated each debit balance in the public funds account, without going into deciding the return obligation and its amount, as it corresponds to the accounting jurisdiction. In other words, the two procedures complement each other, because while one analyzes whether the official is deserving of a sanction for his behavior, the other only ensures that there is no unjustified emptying of public funds and that they are finally repaid.
