In November 1999, the Seprona detachment in Lanzarote carried out a procedure warning that the constructions carried out in El Chabusquillo street in La Bufona "were partly located on land classified as rustic". More than 17 years later, the houses are still standing and, although there is finally a final criminal sentence ordering the demolition, the promoters have only been sentenced to two months in prison, which they will not even have to serve. And even if the execution of the prison sentence were not suspended, they could replace it with the payment of a fine of 1,200 euros.
Undue delays "undoubtedly occur in this case", states the latest ruling of the Provincial Court, dated February 14, which has definitively put an end to this procedure. In addition, it explains that in this case the delays had to be applied as a "very qualified" mitigating factor, something that is only contemplated in "exceptional and serious" cases, when there are "truly outrageous delays". Thus, it further reduces the penalty imposed in the first instance, lowering the six months of prison to two, the fine from 3,600 euros to 1,200 and the disqualification from one year to three months.
But it also reflects the questions that remain open in this case, after almost two decades of judicial investigation. And it is that in addition to the continued crime against land management, for which the two promoters have been convicted, many more had been reported. Among others, one of serious disobedience to authority, of which they were acquitted in the first instance erroneously, according to the Court now indicates.
An "excessively rigorous" interpretation
According to the new ruling, "the judge of first instance made an excessively rigorous interpretation" of an article of the Penal Code, relating to how the crime of disobedience must be proven. Specifically, the judge pointed out that it had not been proven that the promoters had been duly notified of the order to suspend the works decreed by the Apmun in July 2000, because there was no "communication, notification or requirement made personally".
To this, the Court responds that the Agency's resolution, as stated in the proceedings, "was expressly notified to the Brisa Inversiones y Costegui Entity on August 9, 2000" and "duly delivered to Mr. Antonio Caro, as he himself acknowledged during the trial". As for Echevarría, the notification was delivered to an employee of his company, which "would not be sufficient to understand that the resolution was personally notified". However, the ruling adds, "a different matter is if, in addition, the fact that a month later, on September 8, 2000, said resolution was appealed administratively by the defendants". That is to say, that "Mr. Caro and Echevarría did know the order to stop" and even so "continued with the work".
However, although the new ruling considers "proven beyond any doubt that the defendants knew the suspension order" and that "they violated said order", it adds that this conviction cannot be applied now in the second instance. "It would require the prior hearing of the accused, a procedure that does not exist in our procedural system", the Court points out, thus rejecting the appeals filed by the Public Prosecutor's Office and by the popular accusations against the acquittal for this crime.
Without "sufficient elements" to analyze the role of the buyers
The ruling of the Court also rejects reviewing the acquittal of the crime of fraud, in this case towards the buyers of the homes. "What apparently could have occurred on the part of the defendants was a concealment of information, namely, that part of the plot where the constructions were being built was located on rustic land with special protection, so it must be studied whether this concealment of information or omission can be considered 'misleading inducement'", the ruling states, adding that it does not have "sufficient elements to examine the chronological iter of the sales and the conduct followed by the defendants today with respect to the different buyers".
Thus, it leaves in the air one of the keys that were highlighted during the trial, relating to whether or not the buyers knew the situation of the homes, and also their degree of responsibility in the works carried out later on rustic land. In fact, the two convicted promoters requested in their appeal that the current owners of the houses pay for the demolition of the works carried out after the sale. It even raised a possible nullity of the proceedings, to repeat the procedure making the owners part as civilly liable. However, the Court rejects this claim, alleging that it is "extemporaneous", given that they did not raise it during the investigation of the case.
During the trial, several buyers testified as witnesses, and all confirmed that after the purchase they carried out works to expand the house, build swimming pools or pave patios, all in the area that sits on protected rustic land. However, they alleged that it was part of the property they acquired, and that it was delimited and fenced, although they did not request a license for those works. Not even the former coordinating prosecutor of Lanzarote, Miguel Pallarés, who is one of the owners of those houses and who stated that he "believes" that he did request a license for all the works he carried out, although he later added that in the case of the pool he "believes that he did not" have that permit.
More meters in the Cadastre than in the Land Registry
Neither Pallarés nor other buyers could explain why the meters that appear in the Land Registry do not coincide with those that appear in the Cadastre, reaching almost double in some cases. In addition, the homes did not appear in the Cadastre for years, until 2008, and during that time the buyers did not pay the corresponding taxes for those properties.
These are other issues that have been raised by the complainant in this case, Gonzalo Murillo, and that were highlighted in the trial but have not been resolved. In addition, a report from the Apmun carried out in 2008 concludes that the La Bufona Partial Plan should not have been executed, to begin with, because "it did not have the minimum area of 50,000 square meters". In fact, Gonzalo Murillo maintains that for this reason the promoters allegedly usurped land from his property and also modified the boundaries, so that when joining the three farms they had into one, the total number of meters was much higher than the real one.
The Apmun also warned that "52 single-family homes were built where 24 isolated single-family homes could be authorized"; that the licenses were granted based on a Partial Plan and its subsequent Modification (annulled a few years ago by the Supreme Court), which "were not a reflection of the territorial reality"; and that even more had been built than authorized in those licenses. To this is added the alleged invasion of rustic protection land with part of the constructions, which is the only thing that has finally been judged and condemned so far.
And the facts relating to the participation of the person who was responsible for the Cadastre in the Arrecife City Council, Francisco Carmona, who was a partner of the other two defendants, have not been clarified either. Carmona was accused in the case but died during the investigation. The complainant and the other private prosecution requested that a conviction be issued for a crime of falsification of a public document, for the alterations in the Cadastre, but the Court has also rejected this claim.
The Prosecutor's Office did not see "criminal relevance" in the year 2000
Along with Carmona and the two convicted, other public officials of the Consistory were also charged in the case, such as the former mayor María Isabel Déniz and the former secretary, Felipe Fernández Camero, although the proceedings against them were archived during the investigation.
In addition, along with the delays that have caused the investigation to be prolonged for 17 years, with periods of inactivity, it must also be added that the Court provisionally dismissed the entire case in July 2000. And it did so at the request of the Prosecutor's Office, which requested the file stating that the facts lacked "criminal relevance", being at that time coordinating prosecutor in Lanzarote Miguel Pallarés.
Four years later, the Provincial Court upheld an appeal filed by the private prosecution, and in 2004 ordered the case to be reopened. And when the investigation was finally closed, in the order for the opening of oral proceedings "only one of the crimes" for which the accusation had been formulated was recorded, according to the ruling of the Court, which describes it as a possible "procedural irregularity", although it considers that this has not "deprived or limited in any way the right of defense" of the accused. Now, the case finally has a final judgment, although it still leaves numerous questions open.
Meanwhile, despite having ordered the works to stop in 2000, and despite having ordered the demolition of the homes years ago, the Agency for the Protection of the Urban and Natural Environment of the Government of the Canary Islands has not yet forced the demolition to be carried out, despite the fact that several of the appeals filed in the courts by the buyers have already been rejected.
