ERC proposes to reduce non-profit embezzlement by 3 years to avoid an "arbitrary use against the independence movement"

The new type establishes a prison sentence of 6 months to 3 years, and suspension from employment or public office from 1 to 4 years.

MADRID, 9 Dic. (EUROPA PRESS) -

ERC has presented this Friday a series of amendments to the proposal of PSOE and Unidas Podemos to repeal sedition, among which it proposes to create a new type within the crime of embezzlement to punish with less prison --with a sentence of between 6 months and 3 years in prison-- to those who embezzle public money but without personal gain. The Republican party has argued that with this reform it wants to prevent the crime of embezzlement from being used "for political and arbitrary purposes against the independence movement."

According to ERC, they intend to "advance in the dejudicialization of social and political life and limit the potential arbitrariness of the State to persecute and repress the independence movement." They allege that with these amendments, which they describe as "surgical", they want to "redefine, clarify and avoid biased interpretations of the Penal Code" and prevent "the State from using the crime of embezzlement arbitrarily again to persecute the independence movement, at the same time We must also prevent the reform from being used to reduce penalties in corruption cases".

Thus, it advocates creating a new article 432 bis according to which "the authority or public official who, without the intention of appropriating it, allocates to private uses and unrelated to the public function the public patrimony placed in his charge by reason of his functions or with occasion of the same, will incur a prison sentence of 6 months to 3 years, and suspension of employment or public office of 1 to 4 years".

Currently, article 432.1 of the Criminal Code imposes penalties of between 2 and 6 years in prison, and special disqualification for public office or employment and for the exercise of the right to passive suffrage for a period of 6 to 10 years, to "the authority or official public that commits the crime of article 252 on public property".

And that article 252 states that "will be punishable (...) those who, having powers to administer another's patrimony, emanating from the law, entrusted by the authority or assumed through a legal transaction, infringe them by exceeding the exercise of the same and , in this way, cause damage to the managed assets".

In addition, the current 432.2 establishes that "the same penalty will be imposed on the authority or public official who commits the crime of article 253 on public property", a precept that indicates that it punishes "those who, to the detriment of another, appropriate for yes or for a third party, of money, effects, securities or any other movable thing, that they had received in deposit, commission, or custody, or that had been entrusted to them by virtue of any other title that produces the obligation to deliver or return them, or deny having received them".

ERC adds to this new 432 bis that, "if the culprit does not reintegrate the same elements of the public property diverted within the 10 days following the initiation of the process" the penalties of the current 432 will be imposed -which it maintains with some nuances. --.

It should be remembered that a reform of the crime of embezzlement in this sense could benefit at least 24 pro-independence politicians currently being investigated, prosecuted or convicted of this criminal offense due to the pro-independence referendum of October 1, 2017, including those who were president and vice president of Catalonia Carles Puigdemont and Oriol Junqueras, respectively.

ERC proposes to change the wording of that same article 432.1 so that it expressly indicates that "the authority or public official who, for profit, appropriates or consents that a third party, with the same spirit, appropriates the public assets under their charge by reason of his functions or on the occasion of the same, he will be punished with a prison sentence of 2 to 6 years" and disqualification from 6 to 10 years.

In addition, it would leave the gradations of punishment contemplated the same, with punishments of 4 to 8 years in prison and disqualification of 10 to 20 years, if "serious damage or hindrance to public service had been caused" or if "the value of the damage caused or of the appropriated public patrimony exceeds 50,000 euros".

At this point, the only novelty is that ERC also proposes punishing with those between 4 and 8 years in prison and 10 to 20 years of disqualification when "the embezzled things were of artistic, historical, cultural or scientific value, or "if it were effects intended to alleviate some public calamity".

The assumption of "when the damage caused or the value of public assets is less than 4,000 euros" would also be maintained, to punish him with a prison sentence of 1 to 2 years and a fine of 3 months and 1 day to 12 months, "and In any case, special disqualification for public office or employment and the right to passive suffrage for a period of 1 to 5 years".

Likewise, said precept would be preserved where it establishes that, "if the value of the damage caused or of the appropriate public patrimony exceeds 250,000 euros, the prison sentence will be imposed in its upper half, being able to reach the higher one in degree".

ERC also points to a new article 433 to define as public heritage "the entire set of goods and rights, of economic-patrimonial content, belonging to public administrations".

The party explains that it proposes to return to the structure of 1995, "where what is considered embezzlement are the behaviors of appropriation of public assets for profit, as well as the temporary use of public assets for private purposes", but with the penalties of 2015 regarding "appropriation behaviors".

In his opinion, "the inadequate reform of 2015 is thus overcome, which unduly equates what is usually called the administration of private and public third-party assets."

In this regard, ERC affirms that "in the first administration of these assets, the private one, obtaining a benefit is the guide; on the other hand, in the second, in those assigned to administrations and public entities, it is the provision of services or to give support to said benefits what is pursued".

"Private benefits and public services are visibly different objectives and, therefore, they do not deserve to be equated in terms of criminal legal protection," defends the pro-independence formation.