The National Court has acquitted this Wednesday the former president of the General Society of Spanish Authors (SGAE) Eduardo “Teddy” Bautista and nine other defendants for the alleged diversion of funds from the entity. At the trial, the Anticorruption Prosecutor requested penalties ranging from two years to twelve and a half years in prison for crimes of misappropriation, unfair administration, falsification of commercial documents and illegal association.
The judgment of the Second Section of the Criminal Chamber explains that the SGAE first withdrew the criminal accusation and then the civil one as she did not feel harmed by these facts and that, after assessing the evidence, has not been accredited that the defendants act outside the corporate bodies of the entity but rather comply with and execute the agreements adopted by them.
Throughout the 178 pages of the resolution, with a presentation by Judge Fernando Andreu, the operation and decision-making bodies of the General Society of Authors are described as a private entity that is authorized to act as an entity for the management of intellectual property rights and the contracts subject to prosecution, such as the TESEO and Portal Latino projects and the agreements with SDAE or Micrognesis.
The Chamber maintains that the thesis of the accusation is not proven, but rather, in view of the body of evidence, “we must affirm that it has been proven that each and every one of the hiring decisions made between the SGAE and the SDAE and between this and Micrognesis were known, adopted and approved by the management bodies of both companies, with prior and full knowledge of the contracting conditions, with the annual budget approval in charge of the budgets of the SGAE, who was the last beneficiary of the contracted products ” .
“Products -adds the Chamber- that were absolutely essential for the proper functioning of the SGAE in order to comply with its social purposes, for the management of copyright, and the remuneration of the same to the partners, before the exponential growth that the reproduction of works in digital media was happening in those years, which required, inexorably, the creation of the appropriate programs for the management of such copyright “.
In its function of promoting the repertoire of the partners, it was also “absolutely necessary”, the resolution continues, the creation of portals or web pages that would make such works known, especially with respect to lesser-known authors, as well as the training in the new programs of the personnel who were going to be users of them, the SGAE’s own personnel.
“It is proven that such works were carried out, developed and implemented in the SGAE, and in fact to this day they continue to be used by said entity, as stated and stated by the Company’s management bodies, who have been pronounced expressly to verify that in his opinion no damage has been caused to society “, concludes the sentence.
In its legal foundations, the Chamber indicates that the crime of misappropriation requires concrete proof that the administrator has made funds that were entrusted to him his own or that he has given them another destination.
In this case, the Hearing clarifies, “that specific test has not been produced, rather and on the contrary, throughout the test carried out it has been proven by the defenses that the funds from the SGAE, transferred to the SDAE -digital subsidiary of the SGAE-, were used for the acquisition and payment of the agreed services to be contracted by the corporate bodies, and that such services were actually and effectively provided under usual market prices, and that based on such services the SGAE had a series of products, the main ones being Teseo Y Latino Portal, which were basic to him for the management of the Society for the benefit of its associates, and for the promotion of their repertoire and works “.
A private law entity
The ruling also explains that the SGAE is a private law entity, not subject to the terms of contracting in the public sector and the SDAE was another private company, 100% owned by the SGAE, so what was good for one was also the same for the other, the latter being used to act with greater agility and efficiency in the market.
In this regard, it points out that in any of the two modalities for which it accused the Prosecutor, either the main one of misappropriation, or the alternative of unfair administration, the existence of damage is required as a typical integral element of the criminal offense.
“Consequently, if there is no harm, there is no crime. And in the present case it is not only that no harm derived from the actions of the accused against the SGAE has been proven, but it is the SGAE itself that is not considers it injured and decides to withdraw from the exercise of criminal and civil actions in these proceedings, “she specifies.
“In the present case, this court does not see any harm to the SGAE, criminally reprehensible, derived from the contractual operations examined,” concludes the Criminal Chamber.
For the Chamber, from the evidence “not only has it not come to show that the accused, especially Eduardo Bautista or the former director of the SDAE Jos Luis Rodrguez Neri have acted outside of the corporate bodies or exceeding their powers, or distraction or use of the property administered for a purpose other than that established or agreed by the corporate bodies, but rather and on the contrary, it follows that they comply and executed the social agreements ”
Some agreements, he continues, “adopted by the competent bodies for this purpose, whose members were fully and extensively informed of all the necessary background information for their information when making decisions, and thus it is derived from the content of the extensive, rigorous and meticulous minutes that were drawn up and in which all relevant circumstances were recorded in the taking of consideration and agreement of the decisions “.
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