He says that in cases not yet tried "discretion will operate fully", although always in favor of the accused
MADRID, 25 Ene. (EUROPA PRESS) -
The State Attorney General, Álvaro García Ortiz, has issued a decree on Wednesday to establish criteria in the reviews of cases that are made due to the criminal reform that modified embezzlement, endorsing that the sentences handed down in accordance with article 432 be maintained. of the Criminal Code in force in 2015 because said reform "has established identical prison sentences and disqualification", which includes the sentence of the 'procés'.
"The convictions for crimes of embezzlement handed down under article 432 of the Penal Code in force after the 2015 reform will not be reviewed since the new law has established identical prison terms and disqualification," the State Attorney General's Office has reported ( FGE).
García Ortiz signs the 28-page decree, collected by Europa Press, to "provide uniform interpretative guidelines on the new criminal modalities" to all prosecutors in the face of possible revisions of sentences for crimes of embezzlement, including that of the 'procés' . The text is "provisional" until it approves a Circular that "will be issued soon" once it is submitted to the report of the Board of Chamber Prosecutors.
The attorney general analyzes the new wording of the crime of embezzlement after the reform of the Penal Code (CP) and explains that the behaviors that to date found accommodation in the appropriative modality of said crime --repealed article 432.2-- are now subsumed in the new article 432.1.
It emphasizes that the crime of embezzlement now recovers in its literal tenor the "profit motive" as it was foreseen in previous draftings of the norm. For García Ortiz, "this circumstance does not constitute a relevant novelty" since the jurisprudence of the Supreme Court (TS) understands that the crime of misappropriation requires the concurrence of that spirit in the person responsible for the crime.
Thus, it explains that "the profit motive required by the new crime of embezzlement will be appreciated in all cases in which the person responsible acts with conscience and willingness to dispose of public assets as if it were their own, using it for purposes unrelated to the public function to obtain an advantage or benefit of one's own or that of another of any kind".
"Consequently, the profit motive will also be appreciated when the person responsible for the crime does not seek to obtain a patrimonial advantage or a personal economic increase," he emphasizes. And he adds that it will be appreciated in turn when an authority has consented to a third party misappropriating the public assets that he was in charge of.
For this reason, it insists that "the convictions will not be reviewed" for any of these types of embezzlement when they can be included in the new wording of the law, "because both precepts contemplate the same punitive framework."
In the decree, it also maintains that the penal reform "extends the framework of penal protection of public assets, since the introduction of the new article 433 --which punishes the use of public assets for purposes other than that for which it was intended-- and the application of the Article 252 of the Penal Code --which penalizes unfair administration-- will imply that no embezzlement conduct goes unpunished and that any attack against public funds has a criminal response".
To this it adds that "the suppression by the legislator of embezzlement in its unfair administration modality introduced in 2015 will only affect the acts committed between July 1, 2015 and January 11, 2023, since these conducts were not criminal offenses before that date".
"In any case, the unfair administration of public assets will not go unpunished, but will continue to be criminally prosecuted after the reform," he says.
The prosecutor explains that "the homogeneity between the crimes of embezzlement, misappropriation and/or unfair administration is significant" so, in his opinion, it is possible to include in article 252 -relating to unfair administration- the conducts that now, although they do not appear in the embezzlement of article 432, they would have been previously punished in the version of the 2015 reform.
Thus, he emphasizes that "this interpretation" that he makes from the head of the Attorney General's Office "accommodates the will of the legislator not to criminalize any conduct." "An opposite interpretation would mean granting greater protection to private property, admitting the existence of typical modalities that harm public property and which, however, would not be punishable," he adds.
In his analysis of the new article of the Penal Code that punishes the authority that uses public assets for purposes other than the one for which it was intended, the attorney general considers that it is "difficult to conceive of cases in which the mere diversion of public money for a purpose public, without the concurrence of spurious motivations aimed at obtaining personal or third-party profit _direct or indirect_, can determine the production of patrimonial damage for the treasury".
In this sense, it concludes that the prosecutors must reject that "the sentences for the crimes of embezzlement imposed in accordance with the modalities of unfair administration and misappropriation of the repealed art. 432.1 and 2 CP (version LO 1/2015) can be reviewed due to the application of the new article 433 CP, without prejudice to those cases in which unfair administration of public assets are now subsumable in article 252 CP".
Regarding article 434 of the CP - which contemplates the possibility of lowering the sentence when the perpetrator of the crime of embezzlement repairs the damage - the attorney general considers that it is a modification that "does not have significance in the review of convictions". , given that it involves introducing a "more restrictive" criterion than the one that existed in the previous version of the standard, so it cannot be applied retroactively.
He thinks the same of the new article 433 ter, which now establishes that public patrimony will be understood as all the assets and rights, of an economic-patrimonial content, belonging to the Administrations. Thus, García Ortiz establishes that the prosecutors will oppose the review of the sentences in attention to these two new articles ---433 ter and 434--.
In addition, it explains that an "individualized analysis process" of the cases affected by the reform that modifies the crime of embezzlement must be carried out to determine if the new wording of the Penal Code is more beneficial for the convicted person. He specifies that the law must be applied as a whole and not "in pieces" because it is not possible to apply parts of a repealed law and parts of the current one "simultaneously."
Likewise, García Ortiz points out that in cases in which pardon has been granted to the convicted person, the measure of grace cannot be withdrawn because the sentence has been reviewed.
Regarding the cases that have not yet been prosecuted regarding acts that were committed before the reform of the Penal Code entered into force, "the discretion that both legislation allows will fully operate, taking into account all the circumstances that can influence both both in the determination of the sentence and in the execution thereof". Thus, he insists that the application of the most favorable criminal law "should be done on a case-by-case basis."
When the sentence is firm for crimes in ideal or medial competition -as in the case of the procés--, "the prosecutors will carry out a global comparison in order to determine which penalty corresponds to that competition in accordance with the regulations resulting from the modification and the former".