The Public Prosecutor's Office has changed its criteria in the case of the seizure of the Montaña Roja desalination plant and has now requested the "provisional dismissal" of the proceedings, at least until "new elements of judgment" appear in order to formulate an accusation against the president of the Cabildo, Pedro San Ginés, the secretary, Pancho Perdomo, and the former manager of the Insular Water Council, José Juan Hernández Duchemín. Thus, after the withdrawal of the complainant, Club Lanzarote, after reaching an agreement with San Ginés, the only accusation that remains for the moment is that of the Podemos group in the Cabildo, which exercises the popular accusation.
The reason for the change in the Prosecutor's Office's position, according to the document dated May 31, would be the "exoneration" of one of the investigated, the lawyer Ignacio Calatayud, which was agreed on February 21 by the judge of the Provincial Court Salvador Alba. The magistrate issued that order shortly before being removed from his post, when oral proceedings were opened against him for crimes of judicial prevarication, bribery, falsehood, disclosure of secrets and negotiations and activities prohibited to public officials.
"Given the impossibility of formulating an accusation against who, according to the other investigated, was the ideologue of the operation and in whose legal criteria as an expert in administrative law the president, the secretary and the manager of the Insular Water Council trusted, it must be concluded that it is impossible to appreciate the plus of illegality required by the doctrine of the Supreme Court to understand that the crime of prevarication has been committed", states the prosecutor Celia María Asensio in her writing requesting the dismissal of the proceedings.
The Prosecutor's Office had opposed the appeals of all the investigated
Seven months earlier, the same prosecutor had issued writings opposing the appeals of all the accused, who had requested that the order that put an end to the investigation of the case and opened the term to present the writings of accusation be annulled. Of these appeals, only Calatayud's had prospered, in the order issued by Alba, while that of Pancho Perdomo and that of Pedro San Ginés had been rejected both by the investigating judge and by other sections of the Provincial Court.
In the case of San Ginés, the prosecutor pointed out then, in a writing dated October 5, that there were "sufficient indications" of the commission of "facts apparently constituting a crime against the Public Administration and a crime of coercion", as also indicated by the investigating judge in the order opening the procedure to bring the president to trial.
Now, in her new writing, the Public Prosecutor's Office continues to point out that "it agrees with the account of facts" that was included in that order and also considers "circumstantially accredited" the "illegality" of the resolutions of Pedro San Ginés -the first ordering the seizure of the Club Lanzarote plants in Montaña Roja and the second delivering those plants to Canal Gestión Lanzarote-, which have already been annulled in the contentious-administrative channel. However, after explaining the requirements that must be met for a crime of prevarication to exist -which go beyond the fact of dictating "an unjust or illicit resolution" and also include the condition that it be carried out "knowingly"-, she now concludes that there are no "sufficient indications" to formulate an accusation and even that the facts "lack all criminal relevance".
San Ginés assured that he did not know that Calatayud worked for Canal
Over nine pages, the prosecutor recounts the proceedings that have been carried out during the investigation of this case and reproduces both the arguments put forward by the complainant, Club Lanzarote -which has now withdrawn its accusation after negotiating an agreement with Pedro San Ginés- as well as by the investigated. And in the case of San Ginés, she recalls that in his defense he alleged that "he acted under the conviction that the measure was legal, since this had been conveyed to him by the external legal advisor Ignacio Calatayud and the secretary of the Council". However, the president also acknowledged that he did not have a single written report and that the only one that existed was made after the seizure and was prepared by Calatayud.
In that statement, Pedro San Ginés assured that he did not know that this lawyer, while advising him to seize the desalination plant, also worked for Canal Gestión. However, Calatayud himself declared before the judge that the president did know about his employment relationship with Canal -to whom the plants seized from Club Lanzarote were handed over-, but that "he did not consider that this implied a conflict of interest".
Like San Ginés, the rest of the investigated also pointed to Ignacio Calatayud as a key piece in the seizure, although Judge Alba decided to leave him out of the case three months ago, alleging that the investigating judge's order did not motivate "sufficiently" the crimes he was charged with and pointing out that in any case he should have been charged as an "inducer", questioning that the order did not include it as such. It should be recalled that this order indicated that there are indications of a crime of prevarication in Calatayud's actions but did not specify in what capacity he could have committed it, that is, author, inducer or necessary collaborator. "He can hardly have a main role in executive actions who lacks executive powers, as in this case, a legal advisor", argued however the controversial judge Alba, who shortly after was removed from his post and is now awaiting trial.
Thus, the person who advised San Ginés was left out of the case because according to this magistrate he limited himself to "advising", and now the Prosecutor's Office has decided not to formulate an accusation against the president and the other two investigated either, pointing out that, without being able to formulate an accusation against the advisor and "ideologue", it cannot do so against the rest either.
Calatayud, "the person who gave the orders and made the decisions"
Regarding the other crime that was being investigated in the case, that of coercion for having taken the plants by force, the Prosecutor's Office recalls that two witnesses, workers of Club Lanzarote, identified Ignacio Calatayud "as the person who gave the orders and made the decisions" during the seizure, "even calling a locksmith to break the padlock that was on the entrance door".
However, in this case it reiterates that after Judge Alba's order, "it is not possible to formulate an accusation" against Calatayud, "having been decreed the provisional dismissal" of the proceedings against him. For this reason, it requests the "provisional dismissal" of the entire case, "as long as there are no new elements of judgment, as the criminal nature of the facts object of the procedure has not been sufficiently accredited, there being no sufficient incriminating elements that allow the Public Prosecutor's Office to formulate an accusation".
However, Calatayud does continue to be charged in another separate piece of this same case, in which the president and this lawyer are being investigated for an alleged crime of embezzlement of public funds, for the payments he received for his role as advisor to San Ginés. In this regard, the Prosecutor's Office's writing recalls that "when the jurisdictional body required the Secretary of the Cabildo of Lanzarote to provide the administrative contract for the provision of services signed with the lawyer Ignacio Calatayud Prats for the legal advice provided in the sanctioning file, it was accredited that on such dates said contract did not exist, there being only three invoices sent by email on July 14, 2015".
