The First Section of the Provincial Court of Las Palmas has returned the case for the seizure of the Montaña Roja desalination plant to the Criminal Court Number 3 of Arrecife, which on November 17 and when the trial had already had one session, agreed to abstain after the warnings made by the lawyer of Pedro San Ginés, who is accused in the case of prevarication crimes.
As the second day of that trial began, San Ginés's lawyer argued that a Criminal Court was not competent to judge the case, because the requested penalty exceeded ten years of disqualification and therefore should be referred to the Court, even threatening the magistrate with reporting her for prevarication if she continued with the procedure.
Finally, after taking a recess, the judge decided to suspend the trial and annul everything done on the first day, referring the case to the Provincial Court. However, the First Section, which is the one that received these proceedings, has been blunt and has overturned the argument of San GInés's lawyer, stating that the judge was indeed competent and should have continued with the trial until a sentence was issued.
Among other things, the Court's order states that the ex-president's defense made this argument extemporaneously. In this regard, it recalls that the Criminal Procedure Law establishes that it is at the beginning of the trial when the parties must raise preliminary issues, including those that “they deem appropriate regarding the competence of the judicial body”. However, during that procedure at the beginning of the trial, San Ginés's lawyer, José María Calero, did not question the Court's competence.
What he did at that time, just as he had done previously, was to invoke alleged grounds for annulment to ask the magistrate to annul the procedure. The next day, however, was when he alleged that the same judge was not competent to resolve the matter, demanding that she abstain.
The request came after a first session in which the three defendants testified, and in which there were notable contradictions between San Ginés's statement and that of another of the defendants, the former secretary of the Cabildo, Francisco Perdomo. While the former president of the Cabildo assured that he ordered the seizure of the Montaña Roja desalination plant “advised at all times” by the secretary, the latter stated that on his part there was neither “verbal report” nor “verbal advice”, but only a single consultation to which he responded without having “studied the file” or “knowing the inner workings”. That he limited himself to giving an opinion “in general”, “improvised”, “informal” and “without carrying out any serious and in-depth study on the matter”.
In addition, Francisco Perdomo referred to what he had already stated during the investigation, when he also stated that he “would not have adopted the measure that the president adopted without a prior written legal report” and that he “would have been supported by reports”. For his part, Pedro San Ginés was the only defendant who refused to respond not only to the lawyer of the popular accusation, but also to the prosecutor, who was present at the hearing and directed questions to the other two.
After that first session and when the second day of the trial was about to begin, San Ginés's lawyer managed to have everything done the previous day annulled, alleging that alleged lack of competence of the magistrate, in a strategy that has now been dismantled by the Provincial Court.
In its order, the First Section begins by pointing out that the judge was also not the one who should decide on competence, and that what she had to have done was to raise a reasoned statement to the Court so that it could resolve it. However, it also makes it clear that the competence did belong to the Criminal Court, contrary to what San Ginés's lawyer alleged.
Thus, it agrees with what the lawyer of the popular accusation, exercised by the former councilors of Podemos in the Cabildo Carlos Meca and Pablo Ramírez, already raised during the visit. Before the trial was suspended, this lawyer already advanced that when raising the conclusions of her qualification brief to definitive at the end of the trial, she planned to reduce the penalty she initially requested, from 12 years of disqualification, so it would not exceed ten years.
In this regard, the Court points out that with the Penal Code that was in force at the time of the events, the maximum penalty that could be imposed “would not exceed ten years”, as the popular accusation had raised in response to the request of San Ginés's defense.
In any case, the order makes it clear that once the trial has begun and the preliminary issues have been raised without mentioning this issue, the criminal judge must “continue the development of the oral trial until a sentence, unless in the process of definitive conclusions all the accusations qualify the facts with a penalty that exceeds the competence of the Criminal Court”. In that case -at the end of the trial- is when he could have declared his incompetence, which the Court does not consider to have occurred based on the penalties established in the Penal Code.
Thus, the Chamber orders to return the files “to the Criminal Court of origin”, since it understands that the prosecution does not correspond to the Provincial Court.
