Article published by Diari Ara English, 23rd March 2017
Homs joins Mas, Ortega and Rigau in being acquitted of neglect of duty
DANI SÁNCHEZ UGART
On Wednesday Spain’s Supreme Court barred the PDECat MP Francesc Homs from holding public office for one year and one month over his involvement in the non-binding independence vote on November 9, 2014 (9-N). The court acquitted him of neglect of duty, as the High Court of Justice of Catalonia had done with Artur Mas. Instead Homs was found guilty of grave disobedience. According to the verdict, the crime of neglect of duty is considered “covered” by the offence of disobedience.
In their ruling, the judges made it clear that they had not sought to discern whether the then Minister of the Presidency had embezzled public funds by going ahead with the preparations for the ballot, stating that they “limited the scope of the inquest to the offences for which formal charges had been brought”. Homs was also given a €30,000 fine.
As for the count of neglect, the court’s ruling states that the Constitutional Court’s injunction of 4 November 2014, suspending the 9-N vote, was easy to understand and clearly instructed Francesc Homs to cease the activities that were underway and not to undertake any others aimed at holding the N-9 consultation. The judges added that Homs was perfectly aware of the intent of the court’s injunction and that he was obliged to cease all activities aimed at enabling the vote to take place.
The ruling finds the argument used by Homs in his defence (that “the excessive breadth of the decision” failed to make clear precisely which actions were forbidden) to be an “unacceptable sophism. To understand that when a ruling includes everything, it in fact does not include anything, makes no sense”. Manuel Marchena, who delivered the verdict, added that Homs “deliberately chose to ignore the Constitutional Court’s instructions”.
No neglect of duty
The argument that led the Supreme Court to acquit Homs of the crime of wilful neglect of duty is based on the fact that the offence was committed as part of the broader crime of disobedience and, therefore, to find him guilty of both “would artificially fragment” his conduct. Marchena went on to say that “The various omissions are but different manifestations of the defendant’s obstinacy, of his reluctance to submit to the Constitutional Court’s authority”.
According to the court’s ruling, not only did Homs disobey the Constructional Court by omission, but he also actively sought to disobey it. In this regard, the ruling mentions the letter dated 6 November 2014, asking T-Systems to go ahead with IT preparations for 9-N in spite of the Constitutional Court’s ban, which was in effect at the time.
The Supreme Court does not question the fact that volunteers participated in the consultation process, but considers that this does not absolve Homs from responsibility since the process was supervised and managed by the Catalan government.
The Supreme Court also failed to see the validity of the defence’s argument, who brought up the opinion of the Board of Prosecutors of Catalonia’s High Court. This was later overturned by the State Attorney General when he pressed charges. According to the Supreme Court, this would mean “reversing the constitutional design of the Public Prosecutor’s Office and would involve confusing the principle of hierarchical dependence, with a bizarre institutional format in which a ruling by the High Court of Justice of Catalonia would overrule one by the State Attorney General”.