How is a joint and several surety like the one demanded by the Court of Auditors paid?

The Court of Auditors has imposed a bail of more than 5.4 million euros on some forty former high-ranking officials of the Generalitat for the Government's expenditure on external action. But what is it that each of them has to pay? What does it mean that the bail is joint and several? The documentation that the court has provided to the lawyers lists the different concepts that are considered suspicious and the money that is requested as bail pending a trial to determine whether the expenses were made correctly or not. Depending on the charges involved in each chapter and their liability, the court sets the maximum amount that each would have to deposit provisionally. This is a maximum figure because the total of 5.4 million euros must be paid by all the defendants by agreement: in other words, they have to agree among themselves the amounts that each of them will assume until they exceed the five million euros, respecting the limit of money that the court establishes that each office can contribute. Technically, this form of payment is called joint and several surety.

Alba Nogueira, professor of administrative law at the University of Santiago de Compostela, explains in conversation with the ARA that this is the "most beneficial" way of claiming bail for the recipient of the money. The procedure is as follows: individual amounts are fixed for each of the debtors - as the Court of Auditors has done - but if there is one debtor who does not pay, the other debtors can be asked to pay even if it is not part of their debt. That is to say, if there is an official of the Generalitat who does not deposit the bond, this money will have to be paid by the others. What is clear is that the receiver of the money always gets paid.

For example, in the case of the journeys made by the presidents of the Generalitat - one of the first concepts that appears as suspicious, despite the fact that it is part of their competences - 274,069.68 euros are compatible, to which 14,457.15 euros of interest are added to make a total of 288,526.83 euros. This amount is distributed among the "alleged perpetrators": Artur Mas (with a presumed amount of 110,179 euros), Carles Puigdemont (with a presumed amount of 163,889 euros), Francesc Homs (with a presumed amount of 110,179 euros), Andreu Mas-Colell (with a presumed amount of 110.179 euros), Oriol Junqueras (with a presumed amount of 163,889 euros), Raül Romeva (with a presumed amount of 163,889 euros), Mireia Vidal (with a presumed amount of 144,507 euros), Rosa Vidal (with a presumed amount of 129,562 euros), Jordi Vilajoana (with a presumed amount of 110,179 euros) and Joaquim Nin (with a presumed amount of 163,889 euros).

Anyone who adds up these amounts will see that they add up to much more than the 274,069 euros, which is the main amount allegedly misspent. And this is where the key to joint and several surety lies. When it comes to paying, the officials have to manage to contribute the total amount and they have to negotiate among themselves what each one contributes. However, the Court of Auditors sets a limit: Mas cannot contribute more, depending on the responsibility attributed to him, than 110,179 euros, while the limit for Puigdemont is 163,889 euros, as well as for Junqueras and Romeva.

"It is a very unfair way to proceed", says Nogueira. In any sanction process, she explains, it is customary to individualise responsibilities to answer only for one's own acts and not for third parties, so the practice of the Court of Auditors is far from the usual practice in judicial proceedings. "It is anomalous", she says, as well as considering that the fact that more than 500 pages of the provisional liquidation were handed over to the lawyers on Tuesday and they only had three hours to look at it and ten minutes to make allegations does not comply with the usual guarantees.