Borràs case

Are the crimes Speaker Borràs has been charged with corruption?

The parliamentary bureau will decide on this basis whether to apply to the Speaker the suspension provided for in the regulations

3 min
A meeting of the Parliamentary Bureau , in a recent image.

BarcelonaOne of the most debated points of the case affecting Speaker Laura Borràs is whether it is a case of corruption. It is not only important in political terms, but also for the purposes of what Article 25.4 of the chamber's regulations states: that MPs appearing in court for "crimes linked to corruption" have to be suspended from their rights and duties immediately by the parliamentary bureau. Borràs has said from the outset that she does not feel "questioned" by this article because she has not committed any crimes, but following the Prosecutor's Office's indictment this Thursday there are more elements which can be analysed: it is now known what crimes the public prosecutor is accusing her of (malfeasance and forgery) the Parliamentary bureau will have to determine whether they are linked to corruption to decide on Borràs's future.

One of the main criticisms of the article, in addition to the "violation of the presumption of innocence" and the way it was introduced in 2017 – at the last minute by the pro-independence majority – is that it does not specify which crimes it refers to and, therefore, generates insecurity. In what cases, then, should it be applied? The Penal Code does not include the crime of corruption nor does it specify which crimes are linked to it, but there is a doctrine on what is identified as such both at state and international level. Of the crimes the Prosecutor's Office has charged Borràs with this Thursday, malfeasance appears as linked to corruption in reference sites, but not forgery. Embezzlement and fraud – charges which were eventually withdrawn – are also linked to corruption.

In the compilation made by the General Council of the Judiciary of proceedings related to corruption, for example, the following crimes are included: negotiations and activities prohibited to public officials; embezzlement; bribery; malfeasance; crimes related to land planning, urban planning and historical heritage; infidelity in the custody of documents and divulging secrets; influence peddling; fraud; and corruption in commercial transactions. These criminal types – plus others linked to money laundering – are also those the Anti-Corruption Prosecutor's Office includes in the report on its activity when discussing the most frequent crimes related to corruption. In the last report, from 2020, the most common accusation in the field of corruption is malfeasance, ahead of embezzlement and bribery.

The Public Prosecutor's Office's statutes, when setting the functions of the Anti-Corruption Prosecutor's Office (article 19), which intervenes in cases where there is a question of "special transcendence" according to the State Attorney General's Office, lists the crimes in which it has competence to intervene: crimes against the Public Treasury, malfeasance, abuse of office, embezzlement, fraud, influence peddling, bribery, negotiation prohibited for civil servants, money laundering, corporate crimes, intellectual property crimes, price rigging in tenders, and punishable insolvencies.

Finally, the UN Convention against Corruption of 2003, ratified by Spain, also specifies the crimes that are conceived as such. Among the different articles, it includes embezzlement, abuse of office, bribery or influence peddling.

Different criterion of the Parliament

Despite this doctrine, a report by lawyer Joan Ridao in 2018 on the suspension of MPs imprisoned over the 2017 Independence referendum ruled out applying 25.4 in the case of pro-independence leaders – at that time prosecuted for embezzlement – because there was no personal enrichment, but a "detour" or "a disloyal change of purpose" of public funds. Thus, in this report, Ridao circumscribed 25.4 "to the crime of active and passive bribery, and, in some circumstances, to influence peddling". This criterion would save Borràs too. In fact, this Thursday, Borràs's party, Together for Catalonia (JxCat), asked its pro-independence allies "not to go further" than the prosecution and to rule out her suspension. Borràs argues that "sociologically corruption is associated with embezzlement" and the Prosecutor's Office does not see indications of this crime.

It will be the bureau where it will be decided which doctrine prevails when the judge subpoenas her.