The embezzlement reform will lead to studying the sentences of the 'procés' or the ERE to see if there was profit

The key will be to determine if the convicts had that intention of enrichment by diverting public funds

MADRID, 9 Dic. (EUROPA PRESS) -

The embezzlement reform proposed this Friday by ERC creates a new subtype with lesser penalties --from 6 months to 3 years in prison and 1 to 4 years of disqualification-- when there is no profit motive, therefore, once approved , would force a review of the sentences for said crime, including those of the 'procés' and the ERE, to analyze if there was this intention of enrichment in the sentenced conducts.

ERC has proposed creating an article 432 bis in the Penal Code (CP) to punish with the indicated penalties "the authority or public official who, without intending to appropriate it, allocate to private uses and unrelated to the public function, the public patrimony placed to his charge by reason of his functions or on the occasion thereof".

This change means differentiating two embezzlement behaviors, for-profit and non-profit, to more harshly punish the first, which is already included in the current article 432 of the CP, which would remain practically intact with penalties of between 2 to 6 years of imprisonment. imprisonment and 6 to 10 years of disqualification, which increase to 4 and 8 years in prison and disqualification in certain cases, and can be aggravated up to 12 years if the damage exceeds 250,000 euros.

The legal sources consulted by Europa Press explain that this reform means designing a more beneficial assumption for the accused, since it contemplates lesser penalties, for which reason article 2.2 of the CP would oblige the sentencing courts to review the convictions for embezzlement to determine if the condemned facts fit into that new 432 bis.

And this because 2.2 establishes that "those criminal laws that favor the accused will have retroactive effect, even if a final sentence had been handed down when they entered into force and the subject was serving a sentence", and that, "in case of doubt about the determination of the more favorable law, the accused will be heard".

The sources indicate that this penal reform would unleash a dynamic similar to that caused by the entry into force of the 'law of only yes is yes', where both ex officio and at the request of the convicted the courts have had to review the already firm sentences to study whether the new rule was more favorable to them and, where appropriate, reduce the sentence.

Among the potential beneficiaries of the eventual reform would be the four pro-independence leaders convicted by the Supreme Court (TS) for sedition but also for embezzlement: former Catalan vice president Oriol Junqueras, who received 13 years in prison and 13 years of disqualification; and the former directors Raül Romeva, Jordi Turull and Dolors Bassa, who were sentenced to 12 years in prison as well as disqualification.

In his case, the prison sentences were pardoned by the Government, but those of disqualification remain in force, which will also have to be reviewed if the Cortes Generales approve the proposal of PSOE and United We Can to eliminate sedition to create a new type of " aggravated public disorder".

The former Andalusian president José Antonio Griñán could also benefit, for whom the Supreme Court confirmed last September a sentence of 6 years in prison for prevarication and embezzlement by the ERE, which now places him one step away from entering prison . The TS also ratified the sentences of up to 7 years and 11 months in prison for the same crimes to nine other former Andalusian charges.

Likewise, the reform presented this Friday would affect hundreds of sentences handed down by courts throughout Spain for embezzlement, a key crime in the fight against corruption that is present in cases such as 'Noos', 'Gürtel', 'Púnica' or 'Lezo '.

The legal sources underline that the key to elucidate whether the sentence of those sentenced for embezzlement should be lowered will be the concept of profit motive, which the doctrine defines as the intention of personal enrichment or that of a third party with a patrimonial or economic sense. Thus, they specify that the courts will have to analyze each case to establish whether the convicted person in question acted motivated by said spirit.

The political parties, for their part, have focused on the destination of the embezzled funds, since the new wording would require two conditions: the profit motive and that the diverted money be used for "private uses and unrelated to the public function ".

From United We Can they have ruled out that the proposed reform has positive effects in Griñán, while ERC has affirmed that "with this proposal, the defendants of 1-O could not be."