I have never been a supporter of law reforms carried out in a hurry, mainly because the legal system necessarily has to work as a harmonious whole, and things done hastily always end up forgetting issues that, sooner rather than later, end up revealing themselves as authentic problems. I'm not going to change my mind just because a reform may or may not benefit one of my clients, much less so when we are talking about crimes with the importance of misappropriation of funds in a state with a worrying tendency towards corruption.
I have no doubt that the intentions of those who have taken part in this process of tampering with the Penal Code are good, and that they seek very specific results, but the trap is that reforming criminal laws without broadening the objective is the breeding ground for new and more complex problems that are increasingly difficult to solve.
Reforming the crime of misappropriation of funds - I'm not even going to talk about sedition anymore, which would have been best to simply repeal - is a task that should have been approached from different perspectives and taking into account the existing dysfunctions in our legal system, in which, in addition to the actual criminal punishment itself, there are derivations of the criminal responsibility that entail punishments which are also criminal in nature, therefore implying the violation of the right of every citizen not to be punished twice for the same action (non bis in idem).
If anyone has doubts in this regard, I recommend a review of the most recent jurisprudence of the European Court of Justice (ECJ) and that of the European Court of Human Rights (ECHR), which will undoubtedly classify as a violation of the right to non bis in idem the hearing that this Friday the Court of Accounts will hold for the same actions as were already prosecuted by the Supreme Court. This democratic anomaly is not solved through the reform of the crime of misappropriation of funds and is another of the serious technical errors produced by fiddling with the Penal Code.
Politicians, with their calculations and their staging, often stray from reality, and in many other cases they end up distorting reality - even the reality that they themselves have previously created. Probably, the desire to control the narrative prevents them from seeing that they are shooting themselves in the foot, but time will bring them face to face with this reality. Let me try to explain.
The reform of the Penal Code renders meaningless the claims to the Human Rights Court and leaves it up to the discretion of the Supreme Court how the reform should be applied to the partially-pardoned convicted leaders
For the purposes of what I'm proposing here, I'll limit myself to just two examples that demonstrate how what is being attempted is to change a reality brought about by the very actors who now happily believe they have found the holy grail of political peace, without even solving the real political problem which has created this whole case.
First example:
All those convicted by the Supreme Court have gone to the ECHR to sue Spain for a series of irregularities committed during the trial of the independence process leaders and, also, by that court's judgment of October 14th, 2019. The ECHR is, in essence, a court that, among other functions, has to establish whether there has been a violation of the rights recognized in the European Convention on Human Rights and then must seek reparation or restoration if violation of such rights has occurred.
We must not forget that one of the ways to terminate proceedings before the ECHR is that of just satisfaction through an amicable agreement between the parties that prevents the issuance of a judgment on the substance of the case.
For this reason, I imagine that, much sooner rather than later and regardless of how the ECHR might rule on the violation of rights generated by the Supreme Court, the representation of the Kingdom of Spain will make the ECHR see that the plaintiffs have already been given reparation through the granting of pardons and the subsequent legislative reform and, without a doubt, the ECHR will take into account this action by the Spanish executive when it comes to decide on whether or not to study these demands which, to a large extent, would be emptied of content. I find it hard to imagine any other scenario.
Second example:
The electoral calculations made by the promoters of this precipitous Penal Code reform include the review of the sentences handed down by the Supreme Court and the wiping out of the part that remains to be served of the ban on holding public office [for misappropriation of public funds]. Even to the point where headlines are already announcing who [from among the convicted leaders] will be able to present themselves in which upcoming elections, and details of that type.
Probably, none of these reform promoters have taken into account that any legal reform ends up being left to the discretion and interpretation of the judges and courts, but, in this case, the body with the job of doing this, which has been maintaining a concerning silence over the reform, is the Supreme Court, against whose judgements there is no appeal under the ordinary path of justice.
Well, these promoters seem to have also forgotten, on the one hand, that the review of the sentences, which is what would have to happen once the Penal Code has been tinkered with, falls under the jurisdiction of the Supreme Court and that what it will have to review is not the sentence of October 14th, 2019, but the legal reality that emerged from the pardons approved by those same politicians who have now tampered with the Penal Code.
What was conceived to solve a personal problem for a few, even if presented as the solution to a political problem not yet addressed, still ends up generating an even more profound issue
Stated more clearly, the basis on which the review will have to be made is not the situation created by the issuance of the judgment, but the one resulting from the granting of the pardons and, in this last reality, it is quite difficult to think that a mathematical process of discounting penalties will be carried out because, ultimately, the "currently existing penalty" is the one established in the pardon resolutions and not that imposed in the judgment.
The review criteria, for this case, are already defined in the sixth transitory provision of the current Penal Code and that will have to be harmonized with what is proposed in the future second transitory provision of the reform. This definition will allow a margin of discretion that will go up to a six year ban on holding office, a time that nobody seems to take into account.
And as well, we may have to wait and see which route the Supreme Court takes, and how it interprets the concept of "partial pardon" when reviewing the sentences and the scope that this gives to the resulting bans on holding office; also to be seen, the time required for this review procedure which does not have fixed deadlines.
Interpreting the silences of the Supreme Court is always a mistake, but envisioning the scenarios within which the legal debate might take place is not so unwise and, on many occasions, it helps to anticipate situations that later end up occurring. And what I am proposing here is one of the likely scenarios, perhaps the most likely.
In summary: the reform of the Penal Code, on the one hand, renders the claims before the ECHR meaningless and, on the other, leaves it up to the discretion of the Supreme Court how the reform should be applied, or not, to the cases of the partially-pardoned convicted leaders, when, as a result of their pardons, their sentences have already been transformed into new ones... if this isn't shooting yourself in the foot, the truth is that I don't know what is.
With all this, I do not mean to say that the reform will not have consequences for the future - without a doubt, it will do, and there will be many - but what was conceived to solve a personal problem for a few, even if it is presented as the solution to a political problem not yet addressed, still ends up generating an even more profound issue and, without a doubt, a technical-legal one that will remain, once again, in the hands of the Supreme Court, which is just the opposite of what I think was intended. Sooner rather than later, they will have to accept that those who cooked up this reform ended up making a hash of it.