A dilemma of consequences
The Court of Auditors (TCu) has rejected the request of the defense of the leader of ERC, Oriol Junqueras, and eight members of the Government to suspend the calculation of interest on delay related to the cause of 1-O and foreign spending. Although it is a technical matter, the implications are significant. The Prosecutor’s Office and the Catalan Civil Society demand that the former presidents Artur Mas and Carles Puigdemont, the vice-president Oriol Junqueras and several high-ranking officials return a total of 4,146,274 euros to the Generalitat, corresponding to expenses linked to the referendum and the promotion of Catalonia in foreigner The interests are calculated according to the budgets of the Spanish State, from the date of the alleged damage until the judgment is final. In the case of 9-N of 2014, President Mas and three of his councilors were forced to return 4.9 million euros, plus 1.2 million euros in interest. It was not until February 2022 that the Court of Auditors lifted the seizure of the properties of President Artur Mas and other former councilors for the 9-N, after the payment of interest and pending costs of the sentence handed down in 2018. Finally, the Catalan politicians received help from the citizens, with contributions collected and delivered to the court through the Caixa de Solidaritat.
Legal and temporal implications
The counselor of the second department of the prosecution section, Elena Hernáez, was waiting for a favorable resolution from the Court of Auditors on the issue of interest on delay to promote the conclusion of the 1-O trial, as she has recently announced. The councilor already ruled out postponing the process until the amnesty law is approved, despite the request of Esquerra. The judgment of the Court of Auditors could be issued at the same time that the Congress of Deputies definitively approves the norm of amnesty for the facts of the process, which covers the period from 2011 to 2023. The law provides for the amnesty of accounting procedures, as in this case, although it does not contemplate the return of fines or money already paid in a final judgment, as in the case of 9-N.
Advance payment to the Generalitat
The lawyers of ERC have requested the provisional payment of the 4.1 million to the Generalitat corresponding to 1-O and the Foreign Affairs in order to suspend the calculation of interest on delay until a judgment is issued. This amount has already been deposited in the Court of Auditors through donations to the Caixa de Solidaritat and guarantees from the Catalan Finance Institute as a guarantee. As in the case of the consultation of 9-N of 2014, the Generalitat does not consider that these expenses affect it and it will probably be the citizens, through their donations, who assume the main cost and the interests as a show of solidarity with the their representatives The 4.1 million was paid in February 2020 in two amounts: 2,135,948 euros and 2,010,327 euros.
Controversy over the measure
Faced with the refusal to suspend late interest, Esquerra asked the Court of Auditors to raise a question of the unconstitutionality of this measure, considered onerous and contrary to the Constitution and the additional protocol of the European Convention on Human Rights. The party maintains that this measure violates the right to defense, since it does not contemplate a way to suspend the calculation of interest without admitting guilt, since only payment can exhaust accounting responsibility. This implies that the payment cannot be made and at the same time continue to exercise the right of defence. In other words, in this case, the Catalan politicians are forced to admit an irregularity, in this case accounting, and pay to suspend the interest.
The Prosecutor’s Office rejects this reasoning of the defense, and the Chamber of Justice of the Court of Auditors has confirmed that it will not raise any issue before the Constitutional Court. So, Junqueras’ defense is studying the possibility of presenting an appeal to the Supreme Court to request the modification of Law 7/1988 on the Operation of the Court of Auditors, with the aim of making it more aligned with fundamental rights.
Legal reasoning and precedents
The Court of Auditors points out that the system for calculating interest on late payment is used in other areas, such as tax collection or civil enforcement proceedings, where seizure is also foreseen if the person does not deposit the amount required and that the interest is accounted for until the money is delivered to the affected party. The interest is a compensation for the delay in payment, according to resolutions of the Madrid Court of 2005 and others of the Constitutional Court and the Supreme Court. In the case of 1-O, there is no injured party claiming.