If the ruling in which the confirmation of his sentence to six years in prison was brought forward already meant, last July, a blow to Jose Antonio Grinanthe forcefulness of the sentence of the ERE case, which underpins the crime of embezzlement, complicates the pardon for the former president of the Junta de Andalucía, sentenced to six years in prison and pending only that the Seville Court execute the resolution.
The judges of the Supreme Court conclude that Griñán “intervened in the allocation of funds through an illegal budgeting system with knowledge of the consequences that this could have.” They also have no doubts that “she was aware of the illicit acts perpetrated with those funds” or that, “as a consequence of the powers that corresponded to her, when exercising the highest functions within the government of the Andalusian Government, she had the capacity to prevent that mode of management”. And she didn’t.
In a sentence that has had the dissenting opinion of two magistrates, the Second Chamber of the High Court links Griñán not only with the budgeting, but with the management of the funds of the ERE, of the fraud of €680 million. An action that “cannot be classified as alien, unknown or disconnected with the exercise of their public functions.”
In a devastating story of 1,200 pages, the Supreme Court confirms the sentences of twenty charges sentenced by the Seville Court, including that of the also former president Manuel Chavezthe former socialist minister Magdalena Alvarez or former directors Gaspar Zarrías and José Antonio Viera.
«Griñán intervened in the allocation of funds through an illegal budgeting system with knowledge of the consequences that this could have»
“By exercising the highest functions within the government of the Board, he had the ability to prevent this mode of management”
“He intervened in the budgetary modifications through which different amounts were made available to the Ministry of Employment so that they could be managed without being subject to the control of the Intervention”
“Despite knowing the situation, he allowed this irregular situation to continue year after year”
“We are facing a gross and patent use of a budgetary instrument for completely unrelated purposes for which it was conceived”
The Court considers it sufficiently accredited lack of control in management and payment of the aid for the content of an expert report prepared by officials of the General State Administration and ratified in the trial, as well as for different testimonies and documents. That report describes the many illegalities committedobject of prosecution in different separate pieces.
In successive years other reports of the Intervention of the Junta de Andalucía that alluded to the illegality of the system that was being used, despite which the different managers of the funds did nothing to avoid the situation.
The defendants convicted of embezzlement They are precisely the ones who had management knowledge of the aid and that “they should and could prevent” the continuation of the illegal procedure. And it is that the sentence understands that the embezzlement of public funds occurs when these funds are disposed of as if they were their own, “freely and arbitrarily, outside of any control and any minimally regulated criteria”, but also when it is allowed that this situation occurs, existing the obligation and the possibility of avoiding it.
A “gross use”
“We are facing a rude and patent use of a budgetary instrument for absolutely unrelated purposes for which it was conceived, in accordance with the interpretation given by the trial court (Seville Court) and that we have validated throughout this resolution, “the judges point out.
Despite the Griñán’s defense attempt for dismantling the crime of embezzlement during the cassation hearing that was held last April –it is this crime, and not prevarication, that is punishable by imprisonment–, the Supreme Court clearly sees the commission of this crime because the activity of the defendants did not simply use a illegal budgeting criteria for the achievement of its goals –the so-called financing transfers–, but, in addition, public funds were disposed of “without any control and outside of any regulated criteria”.
Thus, aid was paid to workers immersed in restructuring processes without carrying out multiple checks that the laws establish before and after its concession and the budgeted money was also used for other different purposes, without even fulfilling the purposes provided for in the corresponding budget records, says the Chamber.
In the opinion of the magistrates, the sentence of the Court of Seville “sufficiently describes the nuclear action of the crime of embezzlement”, “the free granting of subsidies, in general and absolute non-compliance with the control requirements and procedures established by law” . Despite the knowledge that Griñán had of the irregularities that occurred in the management and disposition of public funds, «allowed to continue production this irregular situation year after year».
“These facts that by themselves would be enough to be included in the crime of embezzlement,” says the Supreme Court, but, in addition, “they must be connected with the rest of the factual story that allows the irregular management of the funds to be linked with the also irregular budgeting criteria used».
The magistrates affirm that Griñán, “with knowledge of breaches in the budgetary management of the aid and the improper budgeting”, intervened in the processing and approval of the budgets for the years 2005 to 2009 and in the budgetary modifications that were approved in said period, by means of which it was made available to the Ministry of Employment within the 31L program different amounts (…) so that they are managed without being subject to the supervision of the Intervention and without the need to process any file».
duty to act
He became aware of the budget deficit due to the “assumption of commitments above budget coverage” that were reflected in the annual accounts reports of IFA/IDEA and the seriousness of the situation created as a direct consequence of the budgetary management of the 31L program, through the use of financial transfers.
The magistrates admit that it is possible that Griñán was not aware of “a good part of the numerous illegalities” that were taking place, but “for the duty to act to arise comprehensive knowledge of all and each of the illegalities. The content of the reports that reported “not only a manifestly illegal situation, maintained over time, but also an absolute lack of control and waste in the management of public funds” was enough.