Neither has any "defenselessness" occurred nor is there any reason to annul the latest actions taken in the case of the seizure of the Montaña Roja desalination plant. That is what the Public Prosecutor's Office reported in response to the request of the defense of the president of the Cabildo, Pedro San Ginés, who presented an "incident of nullity" with which he intended to end the case and annul, among other things, the indictment presented by the Podemos group in the Cabildo as a popular accusation.
In his writing, which has already been rejected by the investigating judge, San Ginés' defense questioned that the procedure had continued after the private prosecution was withdrawn and that the Public Prosecutor's Office requested on May 31 the "provisional dismissal of the proceedings." However, the Prosecutor's Office itself opposed his request, supporting the steps taken by the judge and making it clear that, despite his request, the case can continue and therefore there is nothing to annul. In addition, he stressed that if the magistrate now orders to open an oral trial, he should be given a new transfer to decide whether to finally present an indictment.
"At this procedural moment, after the presentation by the popular accusation of its indictment, the investigating judge has not yet ruled on the appropriateness of agreeing to open the oral trial against Pedro San Ginés Gutiérrez, José Juan Hernández Duchemín and Francisco Perdomo Quintana. In the event that this is done, in accordance with article 783.1 of the Criminal Procedure Law, a new transfer must be given to whoever has requested the dismissal for a period of three days to formulate an indictment, unless they have waived it," states the Prosecutor's Office's writing, which recalls that it would be later when the accused, "in their respective defense writings," can "allege whatever they deem appropriate and propose the means of proof that they will use."
"Justice cannot serve spurious interests", according to San Ginés
The prosecutor thus rejected the arguments of San Ginés' defense, which argued that the judge had "violated his right to defense", by having transferred the actions to the popular accusation to formulate a qualification writing, despite the fact that the private prosecution exercised by Club Lanzarote had just withdrawn from the procedure -after negotiating an agreement with Pedro San Ginés himself as president of the Water Consortium- and that the Public Prosecutor's Office "did not request the opening of the oral trial".
For that reason, he questioned that the case continued only with the popular accusation, even stating that Justice "cannot serve spurious interests of Don Carlos and others", in reference to the spokesman of Podemos, Carlos Meca, and the other two councilors of the group of the Cabildo present in the case, "nor be a hostage of a political party." In addition, he concluded that "defenselessness" had been "generated" by having given "coverage to an accusation without the possibility of exercising any criminal action".
However, after the judge transferred that writing to him, the Prosecutor's Office responded by requesting that the nullity raised by San Ginés be dismissed and stressing that "no defenselessness has been caused to the accused" in this procedure. Days later, and reproducing a good part of that writing, the investigating judge rejected the request of the president's defense, recalling the articles of the Criminal Procedure Law that mark the steps that are being followed and will continue to be taken in the case.
Change of position after Alba's order 'unimputing' Calatayud
As La Voz de Lanzarote has been reporting, the Prosecutor's Office had maintained until the end of the investigation of this case that there were indications of criminality to bring to trial both San Ginés as well as the secretary of the Cabildo, Francisco Perdomo, and the former manager of the Insular Water Council, José Juan Hernández Duchemín. Even, when the judge issued the order of abbreviated procedure, initiating the procedure for the opening of an oral trial, the prosecutor asked that the appeals of the investigated against that order be rejected, insisting that there were sufficient indications of the crimes of prevarication and coercion. However, then there were two new events that coincided with the change of criteria of the prosecutor.
The first was the withdrawal of the plaintiff, Club Lanzarote, after negotiating an agreement with Pedro San Ginés. The second, the unimputation of the fourth investigated, the external lawyer Ignacio Calatayud, who advised San Ginés in the seizure while working for Canal Gestión, which is the company to which the plants were delivered. The decision to leave him out of the case, which the Prosecutor's Office opposed, was adopted in an order issued by the judge of the Provincial Court Salvador Alba, who is currently removed from his functions and pending trial for crimes of judicial prevarication, bribery, falsehood in official document, disclosure of secrets and negotiations prohibited to public officials.
After that order of the controversial judge Alba, the prosecutor concluded that "given the impossibility of formulating an accusation" against Calatayud -who the other three investigated pointed out as "ideologue of the operation" and as an "expert" on whom they relied to adopt those decisions-, she could not formulate an accusation against the rest either. However, the popular accusation did see elements to present its writing of qualification against the three people who continued to be investigated, arguing that they incurred in a crime of prevarication and requesting 12 years of disqualification for each one.
"A very dangerous precedent"
"We do not share the change of criteria of the prosecutor, who takes for granted the arguments of the questioned judge Alba, against the positions of other chambers of the Court that have exposed legally contrary arguments", stressed then from the popular accusation, which considers that there are "sufficient indications that a crime of prevarication was committed" and recalls the resolutions of the Provincial Court "that thus confirm it".
Those resolutions, unlike the one issued by Alba, confirmed the order that put an end to the investigation of this case and that initiated the procedure to bring to trial both Calatayud and the other three investigated. "The argumentation exposed now by the Prosecutor's Office, releasing from responsibility the political positions and public officials for having obeyed the considerations of an external legal advisor supposes a very dangerous precedent", warned the popular accusation, which affirms that "one cannot take for granted the verbal advice of Calatayud to San Ginés when this lawyer is not an official of the institution and, what is more serious, when at that moment he was also working for Canal Gestión, which was directly benefited by this operation".
In fact, this point was also underlined by the investigating judge, who in the order with which he put an end to the investigation of the case spoke of the "economic benefit" that Canal obtained when they delivered the seized plants, while paying more than 3,300 euros per month to the person who advised the president to adopt this measure. Now, in case the judge decides to open an oral trial attending to the writing of the popular accusation, the Prosecutor's Office will have to pronounce again.
