The president of the Cabildo, Pedro San Ginés, has seen his last attempt to avoid trial in the case of the seizure of the Montaña Roja desalination plant, in which he is charged with a crime of malfeasance and another of coercion, rejected. In an order dated April 10, the Second Section of the Provincial Court dismisses the appeal filed by San Ginés against the order that ended the investigation of that case and initiated the process to bring him to trial, and also imposes the payment of the costs generated.
That order, which has now been confirmed and against which the president can no longer file new appeals, opened the term to raise the indictments, which must now be presented by both the Prosecutor's Office and the popular accusation, represented by the Podemos group in the Cabildo. As for the complainant and owner of the seized plants, Club Lanzarote, it should be remembered that she withdrew as an accusation after the agreement she negotiated a few months ago with San Ginés himself, as president of the Insular Water Council, so the criminal case will continue without her.
"We cannot share the defense's thesis in relation to the lack of motivation of the appealed order," says the resolution of the Provincial Court, which considers that Pedro San Ginés' appeal "responds to a defective conception" of what the appealed order entails. And it is that in essence, as the Court points out, that appeal focused on questioning that the investigating judge had not referred in his order to the proceedings requested by San Ginés himself, and which had been incorporated into the case two weeks earlier.
Allegations that have nothing to do with the facts imputed to him
In this regard, the Provincial Court concludes that these proceedings have no relation to the facts being investigated in this case, which do not revolve around possible irregularities in the activity carried out by Club Lanzarote, but on the decisions adopted by San Ginés, ordering the seizure of the plants of this company and handing them over to Canal Gestión.
"In reality, all the references made in the appeal to decisions, resolutions and reports relating to the alleged illegality of the actions of Club Lanzarote SA in its desalination and water distribution work in the Montaña Roja Urbanization, in Playa Blanca, do not constitute the object of imputation in this procedure properly said," warns the Court, which also recalls that these alleged infractions were of a minor and less serious nature, according to the resolution itself in which that precautionary measure was ordered.
"The question focuses not so much on discussing whether this work was legal, whether the activity carried out by the entity was or was not administratively authorized, which seems more typical of another jurisdictional order, but on determining whether the decisions and actions of the appellant, in his capacity as president of the Insular Water Council", "were or were not in accordance with the law", insists the Court.
"Indications of criminality remain"
"The instructor has taken these data into account but, despite this, he defends that indications of criminality remain", says the Court, which recalls the judgments that have already been handed down in the contentious-administrative channel annulling the seizure. Among other things, these judgments pointed out that no law provides for the seizure of a desalination plant as a precautionary measure, which is what San Ginés ordered, without even having a single written report proposing or endorsing that measure.
In addition, the Court recalls that these judgments also dismantled another of the president's allegations, which argued that the company lacked permission to produce water. In this regard, San Ginés stated that the extension of the authorization held by Club Lanzarote had been denied "by administrative silence", but the TSJC already concluded that this argument "lacks legal basis", since to terminate a concession, a "declaration by the Insular Council must be made expressly and in contradictory proceedings with a hearing of the interested parties", which did not occur.
Resolutions "clearly of a later date"
"As if all this were not enough", adds the Court, to this must be added that "many of the resolutions" to which the San Ginés defense clings "are clearly of a later date to the dictation of the resolutions that are described as allegedly criminal". That is, he is now trying to justify the seizure of the desalination plant with facts and resolutions that were adopted later.
"It is impossible for them to protect the decisions adopted", says the Court with respect to the documents and proceedings that San Ginés asked to be incorporated into the case, and which he later questioned had not been taken into account by the investigating judge.
Among other things, the president appealed to a declaration of water emergency in April 2015, when the seizure was carried out in 2014. And also to a report from January 2016 by the general director of Waters of the Canary Islands, which according to the Court cannot "protect" a decision that the president had adopted a year and a half earlier.
"And much less the result of the analyses that may have been carried out on July 18, 2016, which cannot serve as a basis for the seizure of the Club Lanzarote facilities in 2014 and which, therefore, it is completely unnecessary for them to be mentioned in the appealed order", responds the Court. Thus, it concludes that the order appealed by San Ginés is "perfectly in accordance with the law" and that it is "duly and sufficiently motivated", complying "with the legal requirements".
"He knows exactly why the case is being pursued against him"
As for another of San Ginés' allegations, which questioned that the order that ended the investigation not only charged him with a crime of malfeasance, but also another of coercion, stating that he had never been "charged or interrogated for this type of criminal offense" during the investigation, the Court also rejects it.
In this regard, it points out that "what is relevant about the order in question is the delimitation of the facts" and not its legal qualification, that is, the classification of the crime, which will now correspond to the accusations. And in this case, it points out that the defense of San Ginés "does not affirm that facts have been included in said resolution on which the investigation has not been based or on which he has not been interrogated". Therefore, it concludes that it is "evident that there is no surprising qualification because he knows, exactly, why the case is being pursued against him".
As for these facts, he insists that "they have nothing to do with the legality or illegality of the desalination and water distribution work", as the defense intends to raise, "but with the adoption of precautionary measures consisting of the seizure of various infrastructures, and their subsequent transfer (to the company Canal Gestión), based on the specific sanctioning files initiated on that date and not based on others that may have been processed and resolved later".
A precautionary measure "more serious" than the possible sanctions
As for the only sanctioning file that existed at that time, and which was opened on the same day and in the same resolution in which San Ginés ordered the seizure, the Court underlines that it only spoke of the possible commission of three minor infractions and one less serious, which "in the most serious case" would imply a sanction of 6,000 euros, if they "were to be imposed" at the conclusion of that file.
Thus, as the investigating judge had pointed out, he underlines that the "radical and relevant" precautionary measure that was adopted was "much more serious than the possible sanctions to be applied", which in no case could have included the seizure of these facilities, nor the possibility of handing them over to another company, which is what the president did when he transferred the operation of the plants to Canal Gestión, until his decision was annulled by the courts.
