Welcome to Spanish judicial reality. A warm welcome to all the innocents, the incredulous, those who are agnostic, opportunistic, or arrogant, and all the other species who had come to believe that with the modification of the Spanish Penal Code and the striking out of the crime of sedition, the introduction of the new crime of aggravated public disorder and the modification of misuse of public funds, the Supreme Court would find itself against the ropes and from that point the situation of the Catalan political prisoners and exiles would be reversed as easily as a sock. Well, no. That must be something that happens in other countries. In Spain, the law is not what the legislators construct, but rather, what the judges wish to interpret. And to give an example: judge Pablo Llarena has not waited even one day for the reform of the Penal Code to come into force before leaving his credentials: seeing the Pedro Sánchez government as a kind of traitor and rampaging against the reform without any subtlety.
But, that is where he is. Capable of discovering loopholes where there had been a sound consensus among the proponents of the Penal Code modification that everything was solidly constructed. Very well, then. Llarena swallows the removal of sedition, because he has no choice, but in a sleight of hand he reinterprets the modification of the crime of misuse of funds that is now penalized with 1 to 4 years' jail. The magistrate says in his decree, referring to the new article 432.2. "If money is an instrument of exchange that allows the content of the reciprocal obligation for payment to be specified in some onerous obligations, the profit motive is equally appreciable when the administration is divested of public funds to meet payment obligations that correspond to the person carrying out the crime and are completely unrelated to the legitimate functioning of the administration, such as when an obligation of a private nature, totally unrelated to the public interests that are in question, is attributed to the administration." And he adds the clincher: "In both cases, public goods are disposed of as one's own and are diverted from their destination to obtain a particular benefit."
Stated in plainer language for those of us who do not usually spend our time buried in the pages of judicial documents: according to Llarena, it doesn't matter that there has been no private profit made from the use of the public assets, the crime is the same. Although there is no room for an interpretation like this, Llarena has spoken: ipse dixit. And now we will see if the Llarena doctrine ends up being that of the Supreme Court, although everything suggests that he has not stepped out on a limb all alone and that the criminal chamber of the court under judge Manuel Marchena is not going to be very far from this position. If so, it is conceivable that the pending reviews of the sentences of the political prisoners linked to the independence process will be very unequal between those who have misuse of funds among their convictions and those who don't. Among those in the former group are Oriol Junqueras, Jordi Turull, Raül Romeva and Dolors Bassa.
Another question no less important, based on the new European Arrest Warrants that Llarena will propose, is what happens with Carles Puigdemont, Toni Comín and Clara Ponsatí. The clearest situation is that of Ponsatí, who, by not having been charged with misuse of funds - as also is the case with the ERC general secretary, Marta Rovira - will be accused of disobedience, which does not entail a prison sentence and, therefore, she can begin to consider her return. In the case of Puigdemont and Comín, their situation objectively worsens, although another thing altogether is that the work carried out these years by their lawyers in exile will end up lessening the impact. Without sedition, their charges have European equivalents. And misuse of funds - in Europe, corruption - is an accusation that Llarena did not want to hear about in 2018 when the German court in Schleswig-Holstein accepted it as grounds for extradition and he decided that he would only accept sedition. Now, four years later, he will thus have to explain why this is not political persecution, since the crime that was initially the focus has disappeared and yet the judge continues to pursue him.
In any case, it has once again been verified that the judiciary holds the Power with a capital P in Spain. You can look the other way, but it remains atado y bien atado.