“We have rarely encountered such a descriptive and exhaustive order that, putting it in line with the complexity of the investigation, denotes not only a rigorous knowledge of what has been done, but also the embodiment of a more than reasoned and reasonable assessment of the result of the investigation.” With that forcefulness, Section One of the Provincial Court of Las Palmas has endorsed the new case that will bring businessman Juan Francisco Rosa to the stand, along with four members of his family, for alleged crimes of misappropriation, corporate crimes and document forgery in the management of the Hotel Los Fariones.
Two of the defendants, Anselmo Rosa and Rosa María Rosa, filed an appeal trying to get both of them out of the case, but the Court has rejected it, also imposing the payment of the costs generated.
Specifically, they wanted the order of Court Number 2 of Arrecife, which ended the investigation last March and opened the deadline to present the indictments, to be annulled. “It cannot be argued that the challenged order lacks motivation,” the Court has just responded, which considers that there are sufficient indications of criminality in all the defendants to continue the procedure.
While awaiting the resolution of that appeal, the case had continued its course and on November 23, the judge had already ordered the opening of oral trial, after receiving the indictments. In them, up to 11 years in prison are requested for each of the defendants by the private prosecution; and 4 years in prison for Juan Francisco Rosa and 2 for the rest of the defendants by the Public Prosecutor's Office. In addition, Judge Jerónimo Alonso has already demanded millionaire bails from all the defendants, to cover the civil liability to which they could be sentenced. In the case of Juan Francisco Rosa, he demands that he deposit 57 million euros now.
No appeals are possible against that last order, except in relation to the bails, but the previous one was susceptible to appeal. However, the attempt by two of the defendants, which was opposed by both the Prosecutor's Office and the private prosecution, has just been rejected.
In its response, the Court not only praises the actions of the investigating magistrate, but also the arguments of the plaintiff and partner of Rosa, García Bravo e Hijos SL, who was represented in this procedure by the criminal lawyer Samuel García. “The writing of the plaintiff party opposing the appeal is also exhaustive, with a singular factual and documented reference that further strengthens the conclusion reached by the investigating judge,” the magistrates of Section One point out.
"A plot orchestrated by a family group"
Regarding what that investigation revealed, the Provincial Court refers to “a plot orchestrated by a family group”, with Juan Francisco Rosa at the head, who managed the company of which they were majority partners “to the detriment of the interests of the company and therefore of the minority partner”, Gracia Bravo e Hijos SL, who was the one who reported the events in the criminal proceedings.
“Conducts allegedly constituting crimes of misappropriation, corporate crimes in their various projections of unfair administration, falsification of annual accounts, denial of corporate information, imposition of abusive agreements to the detriment of minority partners, as well as the crime of document forgery in relation to the simulation of non-existent meetings are under investigation,” the Court recalls.
In this regard, it emphasizes that there are “more than twenty operations that have been singled out with documentary wealth throughout the investigation of a case”, and that include loans granted by Hotel Fariones SA to other companies of Rosa, as well as the use of the hotel as collateral and guarantee of credits that had nothing to do with that company. In addition, sales of its assets at a price allegedly much lower than the real one are also described, and without even those amounts being deposited in the company's accounts. And all this, according to the prosecution, hiding all this information from its partners and falsifying the accounting or even simulating the holding of meetings, which would have been required to adopt these agreements, and to which the García Bravo family was never summoned.
The arguments of the two appellants to try to stay out of the case
In their appeal, Rosa María and Anselmo Rosa argued that there was not enough evidence against them and requested the dismissal of the proceedings “based on the role that both would have played”. In addition, they argued that since 2013 “neither of them” had had “intervention in the events, as they were disassociated from the administration of said company”, which from that date continued to be managed by Juan Francisco Rosa, but accompanied since then by two of his children -Raquel and Juan Andrés Rosa-, who are also accused in the case.
Regarding the previous years that were also investigated, in which Rosa María and Anselmo Rosa did appear as administrators, they alleged that the plaintiff, who was a minority partner of Fariones, did have “at all times knowledge of the management of the company”.
In addition, they questioned that the order that ended the investigation included facts that were not the subject of the initial complaint or the subsequent extension, and also appealed to the state of health of one of them, insisting that there was not enough evidence to submit him to “the penalty of the bench”.
All these arguments have been dismissed by the Provincial Court, which begins by pointing out that “the state of health of one of the investigated cannot constitute a guiding criterion that should modulate the scope of the decision that must be adopted at this time about whether there are rational indications of criminality”.
In addition, it insists that the procedure to take the case to trial “is not based on considerations of the parties, nor on mere conjectures, nor on a voluntarist exercise of the function entrusted to the investigating judge, but on an exhaustive analytical judgment that he makes impartially and objectively”. “The essential thing is that the investigation yields sufficient indications to support an accusatory account in an intermediate phase, being therefore more than justified the opening of the accusation trial,” he adds.
Regarding the fact that the procedure has ended up going much further than what was stated in the initial complaint, the Court describes the “complaints” of the appellants as “unfounded”. “The object of the criminal investigation is essentially dynamic, to the extent that what should constitute the investigation cannot be limited to the facts revealed in the complaint and/or denunciation, but to all those with legal-criminal relevance that derive from the investigation procedures and against which the defense of the accused has had the opportunity to defend themselves,” he recalls.
Regarding the “alleged knowledge by the plaintiff of all these operations”, he points out that in addition to being a “unilateral argument”, which they may try to allege in their defense in the trial, it cannot lead to dismissing the proceedings when there is “an apparent dynamic of falsification of the accounting reality” of the company.