Isabel Pantoja must sit again on the bench of the court that instructed the cause for which was convicted in 2013 to two years in prison for laundering his ex-partner’s money Julian Muñoz. Legal problems continue to haunt the tonadillera, who has several open fronts because of the “damn parné.”
This time, the artist faces three years in prison for an alleged crime of insolvency punishable. In the trial, which, according to judicial sources, is scheduled to be held on March 22, he will defend himself against the prosecution’s accusation. The public prosecutor considers her a necessary cooperator for agreeing with the perpetrator of the crime and mutually benefiting to the detriment of the victim, a company that did not collect the money that he owed.
The events, according to Europa Press, date back to 2015, when Isabel Pantoja, through her company Panriver 56 SL, sold his house in Marbella (My gypsy) and settled the debt it had with the construction company, Codabe, instead of paying the developer, Hormofer, whom the courts had identified as the true creditor. This movement allegedly allowed him to get rid of the embargo that weighed on the farm.
This media trial will focus on a type of crime that consists of fraudulently making it difficult to pay the creditor. The Penal Code punishes these conducts in articles 259 to 261 bis. These precepts were revised in 2015 when, as a result of the previous economic crisis, there was an increase in cases of business insolvency that left behind a trail of creditors without a collection solution. The modification meant the criminalization of behaviors that were previously only commercial irregularities.
In general, there is ignorance about what is punishable insolvency, what it means to be a necessary cooperator, and its criminal consequences. It is, in fact, a complex issue on which the criminal lawyer Eduardo de Urbano sheds light, of counsel Kepler-Karst.
What is punishable insolvency?
Under the term “punishable insolvencies” the Penal Code distinguishes several commissive modalities that share a common purpose. As Eduardo de Urbano explains, all these actions have in common “fraudulently making it difficult to pay the creditor of the credits that the debtor has to face”.
The specific actions may consist of: removal of assets, concealment of assets in judicial or administrative enforcement processes, and unauthorized use of seized assets. There is another category linked to bankruptcy, among which are the crime of bankruptcy, preterition of creditors or false bankruptcy.
They all suppose act deceptively to frustrate the legitimate expectations of the creditor. It must be made clear that it is not a matter of incriminating any debtor, but of punishing certain goings-on. “If you have a debit, nothing happens, the prison for debts has long since disappeared, what is punished is that fraudulent behavior to deceive your creditors”, exposes the lawyer.
The difference between a punishable insolvency offense and the so-called asset uprising is that in the latter the creditors are harmed when the situation has not yet been prosecuted. This is the case of those who, in anticipation of a bankruptcy, put their most valuable assets in the name of other people to avoid seizure, “often to family members,” says De Urbano.
Being a crime of danger, add the counsel of Kepler-Karst, “it is indifferent that there is no intention of frustrating the creditor’s rights, since it is enough to put at risk the collection of existing debts, preventing, reducing or delaying it.”
What does it mean to be a necessary cooperator?
In the case of Isabel Pantoja, the prosecution indicates her as a necessary cooperator. That is, the public prosecutor understands that its action was decisive for the crime of insolvency to be committed. That is, she is not accused of being the author of the crime (the prosecution accuses a businessman), but the one who made it possible for it to be committed.
Specifically, in accordance with the second paragraph of article 28 of the Penal Code, those who “cooperate in the execution with an act without which it would not have been carried out are considered necessary participants in a crime.” For this reason, they face the same penalty as the direct perpetrator. “It is a form of co-authorship,” explains the lawyer.
However, De Urbano points out, in punishable insolvency crimes there is a important nuance. As it is a type of crime for which, to be able to commit it, it is required to have a certain condition (in insolvency punishable being the debtor, or, for example, in the crime of prevarication being a public official), cooperators do not receive the same sanction.
As the lawyer explains, “all those who participate in the fraud are liable for punishable insolvency, but to a greater degree those who have the status of debtor.” In sum, the legislator thinks that the main author deserves more reproach than the one who helps.
In these cases, the rule provided for in article 65 of the Penal Code is applied, which says that “when the conditions, qualities or personal relationships that support the guilt of the author do not meet in the inducer or the necessary cooperator, the judges or courts may impose the penalty lower in degree than that indicated by law for the offense in question ”.
What differences are there with the accomplice?
What distinguishes the necessary cooperator from the accomplice is the importance of the contribution in the execution of the plan of the author or authors. Thus, De Urbano points out, it will be a case of necessary cooperation if, within the established plan, this help “is essential for the commission of criminal conduct.” On the contrary, if it were a “mere accidental aid to carry out the crime, we would be talking about complicity”. Of course, to be punished as an accomplice, the help must be provided before or at the time of the commission of the crime, otherwise, it would be a possible cover-up.