Judge Salvador Alba has partially annulled the order that ended the investigation into the seizure of the Montaña Roja desalination plant and has agreed to the "provisional dismissal" of the proceedings against the lawyer Ignacio Calatayud, against the criteria of the Public Prosecutor's Office and the investigating magistrate of this procedure. In his order, dated February 21, Alba fully upholds Calatayud's appeal and thus leaves him out of the proceedings, when only the indictment against him was missing to order the opening of oral proceedings.
The investigation of the case ended last July, when Judge Jerónimo Alonso issued the order for abbreviated proceedings and gave 10 days to the Prosecutor's Office and the private and popular accusations to present their indictments, concluding that there was sufficient evidence of a crime to bring to trial the president of the Cabildo and the Insular Water Council, Pedro San Ginés, the secretary of the Corporation, Francisco Perdomo, the former manager of the Water Council, José Juan Hernández Duchemín, and the lawyer Ignacio Calatayud. However, given that appeals could be filed against the order and that there are still others pending resolution - including the one filed by San Ginés directly with the Provincial Court - that period has not yet begun to run.
Initially, Calatayud filed an appeal for reconsideration with the Court of Instruction Number 2 of Arrecife itself, which was dismissed on October 16. Afterwards, he filed a new appeal, which has now been resolved by the Sixth Section of the Provincial Court, with Salvador Alba as rapporteur. It so happens that this magistrate, author among others of the order that lifted the judicial seal on the Stratvs winery, is in turn being investigated for several alleged crimes committed in the exercise of his office. In fact, the TSJC initiated last week the procedure to bring him to trial for judicial prevarication, bribery, forgery and disclosure of secrets.
As "external advisor", Calatayud "lacks executive powers"
In his resolution, Salvador Alba argues that the order that ended the investigation into the seizure of the desalination plant does not "sufficiently motivate" the crimes imputed to Calatayud and even describes it as "defective". In that order, as reproduced by Alba, it is stated that Ignacio Calatayud acted as "advisor" to Pedro San Ginés in the adoption of this measure and that the president "decided" that he should also be present during the seizure, concluding that "he had a main role in the executive actions that were carried out".
"What executive actions does the instructor refer to?", Judge Alba asks in his order, in which he affirms that "someone who lacks executive powers, such as a legal advisor in this case, can hardly have a main role in executive actions". According to the magistrate, Calatayud "limited himself to legal advice", so he concludes that it is "impossible" for that conduct to "fit" into the crime of prevarication. However, he then admits that prevarication could occur as an "inducer", but questions that this possibility is not raised in the challenged order. That order stated that there are indications of a crime of prevarication in Calatayud's actions but did not specify in what capacity he could have committed it, that is, author, inducer or necessary collaborator. "He must motivate what is the specific action worthy of the criminal reproach that is imputed to the appellant", Alba questions.
"The appellant is limited to advising, that is, legally advising and issuing a legal report on certain actions. The informed or advised party may follow that advice or not. And if he follows it, that advice does not become an arbitrary administrative resolution. It may be correct or not, but never prevaricating", insists Alba, who argues that if what is imputed is prevarication by inducement, it should have been motivated.
The "main role" of Ignacio Calatayud
In the order that has been partially annulled, the investigating judge maintained that Ignacio Calatayud had "a main role", both before the seizure and in the execution of this measure. In this regard, he pointed out that the president "relied at all times on the advice" of Calatayud, "who in his capacity as a lawyer tried, in some way, to give some legal cover to the prevaricating resolution". To this, Judge Alba responds that "a report from an external advisor does not give a conduct the appearance of legality, especially when there is a technical body of the administration that has that function attributed to it, the secretary of the Insular Water Council", who is Francisco Perdomo who is also charged in the case.
What the magistrate of the Sixth Section does not refer to are other aspects included in the order of the investigating judge, which among other things underlined that Ignacio Calatayud "carried out the legal advice with knowledge that the precautionary measure would lead to the entity Canal Gestión Lanzarote", for which he worked, "receiving the management of the seized facilities, with the consequent economic benefit". In this regard, as La Voz de Lanzarote published at the time, the order recalled that Calatayud had a contract with Canal for which he charged 3,300 euros per month plus IGIC, for legal advice services. In addition, this same company paid the lawyer to advise the Water Consortium, "in exchange for a price of 17,900 euros".
Days after the seizure, Ignacio Calatayud issued a legal report "that was attached to the administrative file, without it being recorded that the contracting as an external advisor was justified, nor the need for his intervention", the order stated. Afterwards, according to the investigating judge, "in order to give his action a greater appearance of legality, Pedro San Ginés immediately handed over the legal report" to the secretary.
"If there is no clarity, the case must be dismissed"
In his appeal, Calatayud's defense pointed out, among other things, that he "did not issue any resolution" and that his action was carried out within the "inviolable and sacred framework of the legal profession". And that is the argument that Salvador Alba has upheld, against the criteria of the Public Prosecutor's Office, which had asked that this appeal be rejected.
"The prosecutor tells us that if there are incriminating and exculpatory indications after the preliminary investigation phase, the intermediate phase must be followed and the investigated party must be subjected to an accusation trial. Well, no. Only the investigated party with respect to whom there are rational indications that a specific conduct constitutes a criminal offense must be subjected to that trial. And if there is no such clarity, the case must be dismissed", Alba responds in his order.
Thus, he concludes that "since the challenged order does not define the specific role that is attributed to the appellant, and the fitting of that role in the criminal types for which abbreviated proceedings are initiated against him, the full estimation of the appeal is appropriate", "partially revoking the challenged order and agreeing with respect to it the provisional dismissal".
This implies that the procedure will now continue with the other three defendants, unless some other appeal of those that are still pending the pronouncement of the Court were to be upheld, given that this has been the first to be resolved in a firm manner. As for the "exoneration" of Calatayud, no appeal is possible against it. However, the fact that a "provisional" and not definitive dismissal of the proceedings against him is agreed could leave the door open for him to be charged again, but only if the investigation phase is resumed and new incriminating evidence is provided.