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The Attorney General supports maintaining sentences of 1-O for the old embezzlement because the reform leaves "identical" sentences

Any of the two versions of the law may be applied to cases that have not yet been prosecuted regarding events prior to the reform.

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The Attorney General supports maintaining sentences of 1-O for the old embezzlement because the reform leaves "identical" sentences

Any of the two versions of the law may be applied to cases that have not yet been prosecuted regarding events prior to the reform.


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 penal 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 members of the Public Ministry with a view to possible revisions of final sentences for crimes of embezzlement, including the review of the sentence of the 'procés' issued in October 2019. The text is "provisional" until a Circular is approved that "will be issued soon" once it is submitted to the report of the Board of Chamber Prosecutors.

The "number one" of the Prosecutor's Office analyzes the new wording of the crime of embezzlement after the reform of the Penal Code (CP) and explains that the conducts that to date found accommodation in the appropriative modality of said crime --repealed article 432.2-- They are now subsumed in the new article 432.1.

In line, he 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 the attorney general, "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, García Ortiz explains that "the profit motive required by the new crime of embezzlement will be appreciated in all cases in which the person responsible acts conscientiously and willingly to dispose of public assets as if it were their own, using it for purposes unrelated to the public function to achieve an advantage or benefit of their own or that of others of any kind".

"Consequently, the profit motive will also be appreciated when the person responsible for the crime does not pursue obtaining a patrimonial advantage or a personal economic increase," he emphasizes. And he adds that it will also be considered a profit motive when an authority or official has consented to a third party misappropriating the public assets under his charge.

In this sense, it insists that "convictions will not be reviewed" for any of these types of embezzlement when they can be included in the new draft of the Penal Code, "because both precepts contemplate the same punitive framework."

On the sidelines, García Ortiz recalls that the new Penal Code has suppressed the modality of embezzlement by unfair administration of public assets and considers that "in general" this suppression "will only affect acts committed after July 1, 2015", when the old reform came into force, "because before this date the cases of unfair administration of public assets were not considered criminal."

In the decree, the Public Prosecutor also maintains that the penal reform "extends the framework of penal protection of public property, since the introduction of the new article 433 and the application of article 252 of the Penal Code 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 of Organic Law 14/2022," he says.

The prosecutor explains that "the homogeneity between the crimes of embezzlement, misappropriation and/or unfair administration is significant" for which, in his opinion, it is possible to include in article 252 of the Penal Code --relative to unfair administration-- the behaviors that now, although they do not appear in the crime of embezzlement included in article 432, would have been previously punished in the version of the 2015 reform.

However, the head of the Public Ministry stresses that prosecutors must carry out an "individualized analysis process" of the cases affected by the reform that modifies the crime of embezzlement to determine if the new wording of the Penal Code is more beneficial for the condemned.

Thus, the attorney general emphasizes that the final sentences should be reviewed only when the penal reform is more favorable for the convicted person and not in the opposite cases, where the modification of the norm harms him. In addition, he specifies, 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, within the framework of the letter, García Ortiz specifies 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 the determination of the sentence as in the execution of the same". Thus, he insists that the application of the most favorable criminal law "should be done on a case-by-case basis."

In cases of firm conviction for crimes in ideal or medial competition -such as the case of the procés--, "prosecutors will carry out a global comparison in order to determine what penalty corresponds to that competition in accordance with the regulations resulting from the modification and the previous one".