The Second Section of the Provincial Court of Las Palmas has already issued a ruling in the second part of the Montecarlo case, ratifying the convictions of the three defendants who confessed during the trial - Carlos Sáenz, José Vicente Montesinos and Javier Betancort - and acquitting the fourth, the lawyer Federico Toledo.
"It has not been proven that he participated in any way in the theft of public funds from the Arrecife City Council, nor that in his capacity as lawyer of said City Council in the aforementioned administrative litigation procedures, he did not deliberately defend the public patrimonial interests entrusted to him, without trying to prevent the Courts from upholding the claims filed by the companies of Montesinos Ramírez," the ruling states.
As for the other three defendants, it imposes the penalties they accepted during the trial, after the Prosecutor's Office reduced those it initially requested, by applying as a “very qualified mitigating circumstance” the “collaboration with Justice”, for their late confession. In the case of the former auditor of Arrecife, Carlos Sáenz, he has been sentenced to three years, three months and eight days in prison and more than six and a half years of disqualification and to the payment of a fine of 150,000 euros for crimes of embezzlement of public funds, prevarication, forgery of an official document, bribery and money laundering.
For his part, the businessman José Vicente Montesinos faces a new sentence of three years, four months and 14 days in prison and a fine of 150,000 euros for the same crimes. As for the third defendant, Javier Betancort, who began working for Montesinos after being a Finance Councilor in San Bartolomé, has been sentenced to a year and a half in prison and two and a half years of disqualification for crimes of embezzlement, prevarication and forgery of a commercial document.
In addition, the three must jointly return the embezzled money to the Arrecife City Council, which amounts to more than 300,000 euros. Both Sáenz and Montesinos must respond for a maximum amount of 310,544.92 euros; while Javier Betancort, who is currently the manager of Lancelot Medios, will do so for 287,175 euros, which is the amount of public money he contributed to embezzle, charging false invoices to the City Council for services that had not actually been provided.
It should be remembered that the three were already convicted in the first part of the Montecarlo case that went to trial in Lanzarote, for another embezzlement in the San Bartolomé City Council. As for this second trial, it was the first to be held in relation to the Arrecife City Council, and there are still two others pending.
The ruling issued last Thursday, July 23 and notified this Monday to the parties also orders the confiscation of the money that was seized in several accounts of Carlos Sáenz and the companies of Montesinos, which were used to launder money that the auditor illegally received; as well as a property in Puerto del Rosario and two vehicles.
"A manifest damage must be proven"
Regarding Federico Toledo, the ruling recalls that he was accused of a crime of professional disloyalty and another as an accomplice to the crime of embezzlement, for his intervention as a lawyer for the City Council in the lawsuits initiated by Montesinos when the City Council stopped paying the fraudulent invoices.
It was the then mayor of the PP, Cándido Reguera - who was also charged in this case and died during the investigation - who appointed Toledo as a lawyer against these lawsuits, and did so months after they were filed. In this regard, the ruling indicates that this delay in his appointment cannot be attributed to the lawyer, and it also does not consider it proven that he deliberately harmed the interests of the City Council afterwards.
In this regard, it indicates that for there to be a crime of professional disloyalty, “the existence of a manifest damage to the interests entrusted to the accused” must be proven, derived from his “action or omission”. And in this case, it considers that “the only action that could be understood as causing manifest damage could be the decision of the accused Mr. Toledo not to appeal the judgment” of first instance that ruled in favor of Montesinos in one of the lawsuits. “However,” the ruling adds, “we also do not understand that manifest damage has been caused to the City Council, since there were other ways to prevent the invoices from being paid in said procedure, and proof of this is that said procedure is paralyzed by the present criminal case.” Thus, it concludes that it is “debatable that not appealing the judgment could be considered a malicious action by the lawyer to harm his client, in this case the Arrecife City Council, since when appealing a resolution, the possibilities that the appeal may prosper must be taken into account.”
Regarding the fact that these invoices were finally paid, the ruling indicates that it was a decision adopted in a Plenary Session of Arrecife, in which five payments to Montesinos were recognized. “Mr. Toledo neither intervened in the fraudulent payments of the invoices prior to his appointment, nor is there any record that he had any intervention in the subsequent payments of the pending invoices, which, as we have seen, were approved by the Arrecife City Council with the intervention of the defendant Sáenz Melero. Likewise, it is not recorded that Mr. Toledo's friendship with the also accused Javier Betancort, was related to the crimes imputed here, nor that said accused entering the office of the Secretary of the Arrecife City Council, can imply his involvement in the crimes of the other accused,” the ruling adds.
Therefore, it concludes that it has not been proven that Federico Toledo “facilitated the theft of public funds carried out by the other defendants, since he neither intervened in the presentation and collection of the invoices paid prior to his appointment, nor did he intervene directly or indirectly in the payment of the invoices paid through the extrajudicial recognition of credit.”
