Two TS magistrates reiterate that Griñán should have been acquitted of embezzlement in the ERE due to the "deficit" of the ruling

They underline the absence of an exhaustive analysis of the Seville Court on embezzlement

MADRID, 1 Mar. (EUROPA PRESS) -

The magistrate of the Supreme Court (TS) Ana Ferrer has issued a dissenting vote, to which her partner Susana Polo has joined, where they stress that the former Andalusian president José Antonio Griñán and the other four convicted of the 'ERE case' who were "outsiders" to the Ministry of Employment should have been acquitted of the crime of embezzlement for the "deficit" of the sentence handed down by the Court of Seville, indicating that it lacks "a minimum of motivation" on this point.

This is how they pronounce themselves with respect to Griñán, Carmen Martínez, Miguel Ángel Serrano, Jesús María Rodríguez and Francisco Vallejo, in the dissenting opinion issued next to the order where the court that reviewed and confirmed the sentence of the 'ERE' rejects the nullity incidents for processing. presented by eleven convicts, including the former Andalusian president, sentenced to 6 years in prison for prevarication and embezzlement.

The magistrates refer to the particular vote that they already issued on September 13 in relation to the Supreme Court ruling on the 'ERE case' to insist that these five convictions for embezzlement must be annulled because, in their opinion, "they violate the guarantee of presumption of innocence".

They are based on the fact that these five convicts were "unrelated to the Andalusian Employment Council", from which the fraudulent aid of about 700 million euros was granted.

The magistrates believe that the Supreme Court "widely exceeds the margins set by the appealed ruling", because it assumes that, "with the pretext of expediting the payment of aid, a system was sought to freely dispose of public funds, eliminating all controls and all the requirements of the subsidy regulations".

However, for them, "such a conclusion goes further than the evidentiary conviction of the court of first instance", "given that the Court of Seville did not consider that the first phase of action of the authorities and officials of the Ministry of Employment and the political authorities that established the specific procedure were a mere pretext to commit arbitrary acts of embezzlement".

That is why they disagree with "the practical identification that the majority sentence makes between the crime of prevarication and that of embezzlement", understanding that "each one corresponds to his scenario."

"It is one thing that in the face of a generalized situation of economic crisis, an illegal system of budget allocation was developed and assumed to speed up the granting and payment by the Andalusian Employment Council of social and labor aid to workers and companies in crisis; and another different one that later in the budget execution phase the funds destined for these extraordinary subsidies diverted from the social and economic destiny established in the law with damage to the public treasury", they repeat.

To estimate the latter, Ferrer and Polo affirm that the Court of Seville should have analyzed in a "single and careful manner" what circumstances and factors allowed it to be established that the five defendants knew that the system they were implementing would very likely entail malicious acts and behavior on the part of the members of the Ministry of Employment to the detriment of public property and for the benefit of one of them or of third parties", something that they say he did not do.

"Neither did the court of instance provide any probative activity to verify the relationship or connection of the members of the Ministries of Economy and Innovation with the authorities and officials of the Ministry of Employment, and what possibilities they had of controlling the final stretch of execution of the budget, that is, the phase of specifying the beneficiaries of the subsidies and the delivery of public money to individuals and companies," they point out.

A "deficit" in the judicial analysis that they believe "also extended to the study and determination of the limits of competence of each of the ministries in such circumstances and to how controls were carried out in practice in similar cases."

"We also highlight that any examination related to the principle of trust was omitted with respect to such issues in official practice or the levels of responsibility of the authorities and officials according to their hierarchy, proximity and approach to the facts and the scopes of the staff radius of action in each area of ​​competence", they add.

Consequently, they indicate that, by maintaining the conviction for embezzlement of Griñán and the other four, the Supreme Court completed the necessary elements to appreciate this crime "without sufficient argumentation", "without a factual basis of support", going from the eventual fraud appreciated by the Court of Seville to "practically" a direct intent in the behavior of the five defendants.

"To which we add the analysis of a series of contraindications that point against the incrimination of the five aforementioned defendants outside the Employment Ministry," Ferrer and Polo add.

However, they stress that "the thesis maintained by the majority ruling to endorse the conviction of the five defendants outside the Ministry of Employment is that the irregularities and illegalities perpetrated in the processing of subsidies are so serious that in themselves they entail, in addition to the crime of prevarication, that of embezzlement".

The magistrates argue that using "the same evidence that refers to the implementation of the illegal system for granting exceptional subsidies -- the basis of the sentence for the crime of prevarication --" to "also infer from them their authorship of the crime of embezzlement" implies taking for granted "unproven knowledge of what was done in the final phase of execution".

Thus, they criticize that, since "the court of first instance was aware that it did not have proof of charge evidencing a direct fraud in the conduct of those five defendants with respect to the knowledge of the embezzlement acts", "it affirmed that they assumed the eventuality of that third parties carried out the embezzling acts and did nothing to prevent them".

"But the truth is that the decision was adopted without operating with a minimum of motivation regarding the existence of that eventual fraud, at the same time that numerous internal and unassumable contradictions surface in the argumentative development of its resolution, appreciating a special deficit when dealing with the position of guarantor and its scope in the specific case", they emphasize.