The penal reform will benefit those convicted and those who fled from the 'procés' but will leave interpretive room for judges

It will be up to the courts to outline concepts such as profit or "private uses"

MADRID, 13 Dic. (EUROPA PRESS) -

The penal reform proposed by PSOE, Unidas Podemos and ERC -- which repeals the crime of sedition and modifies embezzlement to reduce penalties when there is no profit motive or public money is used for a use other than that intended -- will reduce the disqualification those convicted of the 'procés', such as former vice president Oriol Junqueras, and apply lesser sentences to those on the run, such as former vice president Carles Puigdemont. However, the interpretation made by judges and courts of the new concepts introduced will be key to determining the final result.

The legal sources consulted by Europa Press differentiate the case of convicted and fled. With the former, it must be taken into account that, of the twelve convicted, four were sentenced for sedition and embezzlement to jail terms and disqualification --Junqueras (13 years old), Raul Romeva, Jordi Turull and Dolors Bassa (12 years old)--, while five were sentenced only for sedition --Carme Forcadell (11 years and 6 months), Joaquim Forn, Josep Rull (10 years and 6 months), Jordi Sanchez and Jordi Cuixart (9 years). To this is added that the nine pardoned were pardoned from jail but not the disqualification.

Likewise, they explain that the reform will operate differently for each group of convicted persons, since the crime of sedition directly disappears, being replaced by one of aggravated public disorder --so that the sentences go from between 10 and 15 years in prison to between 3 and 5, and between 10 and 15 from disabling to 6 and 8--; while the one for embezzlement maintains the current penalties (from 2 to 12 years in prison and from 6 to 20 years of disqualification) and introduces less punishable cases.

However, they start from the premise that any penal reform that may imply a benefit for the convicted should be studied for its possible application, because this is established in article 2.2 of the Penal Code (CP), which in the case of the 'procés' It would mean revising the only current penalty, which is disqualification, also taking into account that those who were convicted of both crimes were convicted in mediation, that is, with sedition as the main crime and embezzlement as instrumental.

Regarding the elimination of sedition, the aforementioned sources state that the sentence could not be redirected to the new crime of aggravated public disorder, because it was a criminal offense that did not exist when the events were committed, so it would have to be redirected to a crime that was in force when they occurred, which --they point out-- could be disobedience, punishable in article 410 of the CP with a fine and disqualification from 6 months to 2 years.

Regarding embezzlement, the sources highlight that the configuration proposed by PSOE and ERC draws three different assumptions: when there is a profit motive, maintaining the current penalties (from 2 to 12 in jail and 6 to 20 from disqualification); and two new types: one non-profit for "private use" (from 6 months to 3 years in prison and disqualification from 1 to 4 years) and another for when the embezzled goes to a purpose other than that intended (from 1 to 4 years in prison and 2 to 6 years of disqualification).

On this point, the sources emphasize the fact that both the profit motive and "private uses" are concepts susceptible to interpretation by the judges and courts before the specific case, an operation that allows them to modulate the sentences according to of the assessment they make of the concrete facts.

Thus, they highlight that the profit motive can be translated not only as a material increase but also as obtaining an advantage, while the concept of private interest (or individual according to the initial ERC proposal) can be interpreted not only as a personal benefit, but as an interest alien to the public, which would allow to include in that "private use" the one that had partisan or political purposes not covered by the exercise of the public function.

On the other hand, the sources affirm that, in the case of those prosecuted for sedition and embezzlement who remain on the run --Puigdemont, Toni Comín, Clara Ponsatí and Lluís Puig--, the first impact of the penal reform would be to amend the European arrest warrants. arrest and delivery (OED), in which it would no longer be possible to speak of sedition in any case, although it would be possible to claim them for an alleged crime of disobedience (due to the reasons already exposed) plus that of embezzlement.

Once they were handed over, the sources highlight that the Criminal Procedure Law (LeCrim), in its article 503, establishes that it is only possible to agree to provisional detention when the sentence for the alleged crimes is at least two years, so in the event that it falls below (disobedience is not punishable by imprisonment), even taking into account other factors such as the seriousness of the facts or the risk of flight, this precautionary measure could not be issued.

To all this, the sources add that for the computation of the disqualification sentences -both for convicted persons and fugitives- the sentence handed down is taken as a general starting point, although they add that it is possible to discount the time of provisional disqualification.

It should be remembered that Junqueras and the other convicts were provisionally disqualified from July 2018, while for the escapees that disqualification declined when the Supreme Court sentenced them for sedition and not for rebellion (the only crime that allows provisional disqualification), so for them Only the period between July 2018 and October 2019, when the ruling was issued, could be subtracted.