The reform of the crime of embezzlement does not allow a reduction in the prison sentence of Juan Márquez Contreras, director of Labor in Andalusia between 2008 and 2010, for what is known as the Umax case.. The defense asked to review his sentence to five years and three months in prison, pointing out that he had not benefited from the diversion of funds on a personal level, but, in a car to which El Confidencial has had access, the Criminal Chamber rejects the request : “The profit motive can be yours or the third party to whom the funds are diverted, so neither before nor now is it required that the profit motive concur exclusively with the public official”. Among its protagonists, there are various convicts in the ERE case, such as the general director of Labor of Andalusia between 1999 and 2008, Javier Guerrero, who died in 2020, or Márquez himself.. The Supreme Court already confirmed the conviction of both in this parallel plot on June 14, but Márquez's defense appealed the sentence and asked that the recent reform of the Government of Pedro Sánchez be applied to reduce the sentence..

The former director of Labor argued for this that it is “an embezzlement by distraction and not by appropriation with direct profit from the appellant, which would justify a significant penological reduction”. His reasoning then indicated the new embezzlement of article 433 of the Penal Code, which punishes “the authority or public official who, without the intention of appropriating it, allocates the public patrimony placed in his charge to private uses.”. This crime is now punishable by sentences of between six months and three years..

The key to its application revolves around the interpretation of the aforementioned profit motive.. “The facts consisted of the appropriation without the intention of reimbursement by a third party of public funds, attributable to the public official responsible for the funds for consenting to that provision,” explains the resolution, dated July 19.. In this case, the magistrates argue that it is possible to speak of profit, since this concept not only affects “personal enrichment”, but also those officials who “break their duty of loyalty to the Administration and decide to give public funds an unequivocally illegal purpose”.

Once the profit motive has been confirmed, the Criminal Chamber rules out the aforementioned misappropriation of article 433 and concludes that the facts would fit with that of article 432: “The authority or public official who, for profit, appropriates or consents that a third, with the same spirit, appropriates the public patrimony that is in charge”. If in the diversion of funds “serious damage or hindrance to the public service had been caused”, as in the Umax case, the penalties are then raised to between four and eight years in prison, for which reason the Supreme Court considers that this reform In no case does it force Márquez to reduce the five years and three months in prison.

Although the decision is not appealable, sources from Márquez's defense point out that they will try to annul it. As they explain, the request for review required transfer to the Prosecutor's Office so that it could rule on the possible reduction, but the magistrates have responded by means of a “clarification of sentence” order and without listening to the parties.. By opting for this route, the defense considers that the pronouncement is invalid, and will defend it in a new letter to try to annul the current pronouncement: “There is no room for review of the penalties established in the contested sentence as a consequence of the entry into force of the modification of the Penal Code”.