The sentence that has confirmed the sentences of the former presidents of Andalusia, José Antonio Griñán and Manuel Chaves, has not been unanimous. Two magistrates from the criminal court, Ana Ferrer and Susana Polo, have signed a private opinion of almost 100 pages in which they criticize that their colleagues have confirmed the convictions for embezzlement in addition to prevarication, a crime that implies prison sentences. They consider that a crime of embezzlement has been attributed to them “without at any time indicating solid evidence, beyond mere speculation.”
The Supreme Court confirms the main sentences for the ERE and Griñán will go to jail
For Ferrer and Polo, there was a massive illegal granting of subsidies, but not all of them were inadmissible, since if the proper procedure had been followed, they would not have had criminal consequences. “There are cases of clearly fraudulent aid that should never have been granted and others that the public treasury would have to take care of in any case, although completing the legal procedure for concessions,” they say.
The dissenting magistrates explain that “one thing is to assume and approve a whole specific system” to expedite the granting of public aid “and another very different thing is that the accused were aware that part of those funds were being distributed in a maliciously fraudulent way by executing officials”.
The first criticisms are of the Court of Seville that sentenced the case in the first instance. “It suffers from a significant argumentative deficit when analyzing the element that integrates the subjective typicity of the crime of embezzlement, giving what we consider a risky leap into the void when attributing to the defendants outside the Ministry of Employment, the five cited, an eventual fraud that is difficult to fit into the crime of embezzlement.”
A “leap into the void” that they also transfer to the decision of their roommates to confirm the convictions for embezzlement. “We do not share the majority response of this Court of Cassation that confirms that condemnatory pronouncement, and that even goes, in our opinion without evidentiary or factual support, further than the sentencing Chamber of instance, exceeding the margins that it set”, they explain.
They are arguments that both the former president of the Andalusian Government may use in his amparo appeal before the Constitutional Court to request the revocation of the sentence, as he announced that he would do while a request for pardon is also being processed. At the moment his sentence of 6 years in prison, based on the crime of embezzlement that these two magistrates question, implies his entry into prison.
Sentenced for “mere speculation”
The two magistrates question whether the Court of Seville appreciated an eventual fraud in the attitude of five of those convicted. It does so, reproaches the dissenting vote, “without at any time pointing to solid evidence —beyond mere speculation— that would allow us to prove that they were reliably aware that the prevaricating illegalities they were committing determined that other people were committing acts that undermined the public property belonging to the crime of embezzlement”.
They understand that there were personal contacts but no testimonies or concrete data that show that “they were aware of the procedural illegalities” of the fraudulent system of public aid. They criticize that, in addition, their colleagues from the Supreme Court’s criminal chamber have put on the table “the existence of direct intent in the behavior of the five defendants whose conduct is being examined.”
The particular vote of both magistrates not only questions the convictions for embezzlement of former President Griñán. It does the same with the sentences imposed on Carmen Martínez, Miguel Ángel Serrano, Jesús María Rodríguez and Francisco Vallejo.
The Court of Seville, both say, chose to attribute an eventual fraud to cement their conviction for embezzlement knowing that they did not have sufficient evidence to opt for direct fraud. She did so, they reproach, “knowing that she lacks minimally consistent evidence to attribute direct fraud to those accused outside the Employment Department.” This dissenting vote even speaks of a “laconic and unmotivated legal basis on the authorship” of these defendants on the crime of embezzlement.