The Constitutional Court dismantles the ruling on the political plot of the ERE and releases two former councillors from prison

Wednesday, July 3, 2024, 8:39 p.m.

If there was any doubt about the Constitutional Court’s dismantling of the ruling on the so-called ‘political piece’ of the ERE case – which affects the main public officials of the Junta de Andalucía during a good part of the socialist era – it has been completely dispelled. The court of guarantees ruled this Wednesday on the appeals presented by the former ministers Francisco Vallejo, Carmen Martínez-Aguayo and Antonio Fernández and in all three cases it has done so, with different nuances, in favor of the appellants. For the first two it has meant release from prison, although Martínez-Aguayo was already enjoying the third degree. The TC also ruled in favor of the former vice-minister of Innovation Jesús María Rodríguez Román after doing the same the day before in relation to the former general director of IDEA Miguel Ángel Serrano Aguilar.

While waiting to find out what the Constitutional Court’s decision will be on the appeals that it still has to address – including those of former presidents Manuel Chaves and José Antonio Griñán, which will begin to be debated in two weeks – it can already be anticipated that the criteria that the majority of the court will follow will be favorable to the defendants, considering that during the process the fundamental right to criminal legality was violated and, in most cases, also the right to presumption of innocence.

As of Wednesday, the Constitutional Court has resolved seven of the twelve appeals filed by the former senior officials of the Junta involved in this case and, with the exception of that of the former Minister of Employment José Antonio Viera – rejected for not being sufficiently substantiated – all the decisions concluded with pronouncements in favour of the appeals. The fixed photo of seven votes in favour – those of the judges considered progressive – and four against, from the conservative minority, was unshakeable.

Identical arguments

The line of argument used to justify these decisions has been identical in all cases. The distribution of funds for social and labour aid, considered arbitrary in the sentence that condemned the former political officials, was carried out through transfers of funding that the Seville Court first and the Supreme Court later considered illegal for breaching budgetary rules, in the same way that they considered illegal for the same reason the draft and bill budgets approved at that time.

The Constitutional Court, on the other hand, considers that the preparation of draft budget laws and their approval as bills by Parliament cannot constitute the crime of prevarication. The rulings issued in recent days by the Court of Guarantees maintain that a draft or bill cannot be subject to judicial control either at that time, since they are mere proposals, or once approved, since a law cannot be illegal unless it infringes the Constitution. On this basis, the Constitutional Court has pardoned part of the prevarication and embezzlement condemned by the Audience of Seville and subsequently confirmed by the Supreme Court.

Martinez-Aguayo

In the case of former councillor Martínez Aguayo – sentenced to six years and two days in prison and 15 years of absolute disqualification for a continuing crime of prevarication in conjunction with a continuing crime of embezzlement – the Court of Seville has been ordered to issue a new sentence regarding prevarication. For this reason, her release order has been decreed, although since June she had been in the third degree of prison and was assigned to a social integration centre.

The Seville Court and the Supreme Court considered that the former Deputy Minister of Economy and Finance (2004-2009) and Minister of Finance (2009-2010) participated in the preparation of the draft budget laws for the years 2005 to 2009 and in the preparation of various budgetary modifications. According to these two sentences, this allowed public money to be stolen without the person involved preventing it.

The Constitutional Court concluded that Martínez-Aguayo was convicted of embezzlement without specifying the specific facts attributed to him. It also established that the crime of prevarication was improperly applied to him because the preparation of the draft laws and their approval as draft laws cannot constitute this crime.

Francisco Vallejo

In the case of Francisco Vallejo, former Minister of Innovation sentenced to seven years in prison for the crime of prevarication with embezzlement for having participated in the approval of the budget bills from 2005 to 2009 and in the preparation of various budgetary modifications by which various programs were increased, a similar criterion has been applied.

According to the ruling, the inference that the contested resolutions make, based on Vallejo’s double status as Innovation Councillor and President of IFA/IDEA, should have revealed, during the course of the Governing Council’s deliberations, the possible illicit use of public funds, so that measures could be adopted to prevent it. However, the Constitutional Court points out that, although these conducts could be considered constitutive of a crime of embezzlement, as the former councillor has been convicted of such a crime without the judicial bodies having argued that the alleged acts were committed by him, his right to the presumption of innocence has been violated.

The same criteria was applied to the former Employment Minister Antonio Fernández. Part of the embezzlement was exonerated but the budgeting and management actions that he carried out as Deputy Employment Minister for the budget modifications of 2000 and 2001, before the budget laws had incorporated the concept of transfers of funding from the IFA to the Innovation and Development Agency of Andalusia (IDEA), were left out of the scope of the protection. The Plenary has annulled his conviction and has ordered the Court of Seville to issue a new sentence that reduces his prison sentence.

For the moment, Fernández, who is serving a sentence of seven years and 11 months in prison and 19 and a half years of disqualification for a continued crime of prevarication in conjunction with a continued crime of embezzlement, remains in prison. His lawyer says that he should be released.

Against the law of the European Union

The judge from the conservative wing of the Constitutional Court, Enrique Arnaldo, has shown his opposition to the Court of Guarantees exonerating the misappropriation of funds in the so-called ‘ERE case’, considering that it goes against the Law of the European Union and has insisted that it leads to “leaving unpunished” conduct of “particular gravity”. Judge Ricardo Enríquez, from the same sector, considers that the court “has exceeded” its control function. Judges César Tolosa and Concepción Espejel -also from the conservative wing- have announced that they will present dissenting opinions.

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