He reproaches the magistrate for dedicating “a good part” of his order to assess the “opportunity and correctness” of the penal reform
MADRID, 18 (.)
The State Attorney’s Office has appealed this Wednesday the order issued last week by the Supreme Court (TS) magistrate Pablo Llarena so that he also prosecute the former Catalan president Carles Puigdemont for the crime of aggravated public disorder, respecting the decision of the instructor to request his search and capture for disobedience and aggravated embezzlement.
In her letter, to which Europa Press has had access, the State lawyer Rosa María Seoane asks Llarena to include aggravated public disorder as a crime “for which those accused in rebellion may be prosecuted, together with those of disobedience and embezzlement”.
On the sidelines, Seoane reproaches Llarena for dedicating a “good part” of the legal foundations of her order to assess the “timeliness and correctness” of the penal reform for which the crime of sedition is repealed -for which Puigdemont was prosecuted- – and the embezzlement is modified.
The legal reform appeal takes place after yesterday Tuesday the prosecutors of the ‘procés’ also asked Llarena to prosecute the former Catalan president for the crime of aggravated public disorder, in addition to disobedience and aggravated embezzlement.
Llarena was forced to reformulate the prosecution and the search and arrest warrants against Puigdemont and the other fugitives from 1-O to adjust to the penal reform that came into force last Thursday. That same day, the Supreme Court magistrate agreed to change the disappeared sedition for disobedience –ruling out that the facts fit into the crime of aggravated public disorder– and to maintain the aggravated embezzlement –discarding the new attenuated versions–.
URGES APPLYING THE “MOST FAVORABLE” LAW
Seoane considers that the interpretation that Llarena makes by “fully excluding” the crime of public disorder “unduly limits” the right of the accusations -including that of the State Attorney’s Office itself- to go against Puigdemont for the crime they deem appropriate. .
In her letter, the representative of the legal services of the Administration insists that the examining magistrate “cannot exhaust” the range of crimes to which the accusations can resort in view of a possible trial because, to do so, would be “depriving the accusations of the opportunity to assess the application” of such criminal types, in this case, that of aggravated public disorder.
In addition, it reproaches Llarena for doing “what is intended to be a complete and decisive analysis of the impact” of the reform of the Penal Code in the case of Puigdemont but without the “slightest analysis of the application” of the principle by which It establishes that the regulations that are most favorable to the prisoner must be applied.
The State lawyer assures that the facts that could previously be prosecuted as sedition can now be protected under the “new criminal type of aggravated public disorder”, since “this application will be more favorable”.
Given Llarena’s argument that a crime that was not in force in 2017 -when the events attributed to him took place- cannot be applied to Puigdemont, Seoane refers to the doctrine of the European Court of Human Rights (ECHR). .
The lawyer emphasizes that “provided that the penalty resulting from the application of the new criminal type to the acts committed during the validity of another previous criminal type is less than that resulting from this one, the retroactive application of the subsequent law is admissible, although it is not was in force at the time the acts were committed, always under the already indicated premise that the punishable acts were already punishable by the same or by a different type of crime”.
In this regard, it should be remembered that the sedition contemplated penalties of 10 to 15 years in prison and disqualification while the disobedience observed by Llarena does not carry a prison sentence, but rather a fine and disqualification –although from 6 months to 2 years–. As for the crime of aggravated public disorder, which is claimed by the Prosecutor’s Office and the Lawyer’s Office, it sets penalties of up to 5 years in prison and 8 years of disqualification.
DISCLAIMS THE INTERPRETATION OF LLARENA
Thus, Seoane criticizes that Llarena makes a “similar analysis” in the investigation phase that, in his opinion, limits the right of the accusations by preventing them from formulating accusations for aggravated public disorder. “We also understand that the analysis carried out with a vocation for completeness is incomplete and does not take into account relevant elements that, in the opinion of this representation, would allow the formulation of accusations under these criminal types,” he points out.
In addition, it indicates that “it cannot be ignored” that, given the fact that the investigative statement by Puigdemont and the rest of the defendants fled in court is still pending, it is worth asking if a pronouncement such as the one made by Llarena would not “delimit” the scope of the possible interrogation, “in the sense of having to stick exclusively to the facts that present relevance only for the crime of disobedience with the effects that would be chained to it in subsequent phases.”
Specifically, it warns that the decision of the Supreme Court magistrate to rule out the crime of aggravated public disorder would also affect the trial phase. He maintains that, although the European arrest warrants can be modified, if Puigdemont and the rest of those accused in absentia are handed over solely for disobedience and embezzlement, then they could not be tried for aggravated public disorder -even though the prosecutions wanted to include it in their qualifications- -.
“The exclusive pronouncement of the contested order entails the impossibility that the procedure can be followed in any case for the crimes it excludes,” says the lawyer.