"Unjustifiable", "absolutely incoherent", "unfounded" and "lacking adequate legal reasoning". These are some of the adjectives that the Public Prosecutor's Office dedicates to the order issued by the Sixth Section of the Provincial Court of Las Palmas, in which it is ordered to lift the precautionary measure of closure of the Stratvs winery. In its appeal to that order, the Prosecutor's Office emphasizes that the Chamber did not assess "the accumulation of incriminating evidence repeatedly exposed" during this case, but only "the documentary and expert evidence of the party" provided by Juan Francisco Rosa and BTL Lanzarote.
"But what is even more serious", according to the Prosecutor's Office, is that the order, of which Judge Salvador Alba was the rapporteur, "not only entirely adopts the conclusions of the reports provided by the applicants, without any room for doubt or criticism, but also unreservedly accepts as an article of faith the interpretation of the facts made by the party interested in lifting the precautionary measure". An "interpretation" that is based on maintaining that the Stratvs complex did not emit polluting discharges and that there is no water network in the area, despite all the expert reports that conclude otherwise.
"We do not understand how the opinion of party experts is prioritized over the opinion and criteria of impartial public officials, who have issued expert reports at the request of the Court of Instruction", the Prosecutor's Office points out, which describes as "unjustifiable" that the judge "takes into account water and soil analyses from the party, at no time supervised by an independent and impartial official or entity", and "whose origin, protocol and chain of custody are not guaranteed in any way".
Rosa "uses farce as a habitual way of breaking the law"
The Prosecutor's Office considers that valuing only those "party" expert opinions is "more unjustifiable" taking into account the "null credibility of the documents and reports that Juan Francisco Rosa Marrero and BTL Lanzarote have provided in everything related to these facilities", as "has been proven throughout the instruction of this case". In fact, it recalls that this is precisely what has led to the businessman being accused "of crimes typical of someone who allegedly uses farce as a habitual way of breaking the law", that is, of fraud and document forgery, among other long list of crimes for which he must answer in court.
To this, the Prosecutor's Office adds that Judge Alba's order "falls into the most absolute incoherence" with respect to the resolution that he himself issued in 2014, in which he rejected Rosa's first appeal and endorsed the closure of the winery. "Simply, the criteria have been changed with the same existing data from three years ago, and this change of criteria is reasoned in that there are new reports and documents provided, when it is not really so", the Public Prosecutor's Office points out.
Regarding those "reports", in addition to insisting that "they were pre-existing" -despite the fact that the order attributes to them "a novel character when they do not have it nor can they have it"-, the Prosecutor's Office points out that it already responded to them when answering this last appeal presented by the property of the winery. Among other things, with these reports the defense intends to question "the legality and validity of the samples analyzed" in their day, which reflected pollution parameters.
In this regard, the Public Prosecutor's Office insists that the "criticisms" made by the defense to these samples have "the same distorting interest of reality that they have always had, interpreting the facts and data in a biased, interested, and fraudulent way contrary to reality". Even, it points out that the conclusions of the defense are contrary even "to common sense, despite which, they have had effect", by getting Judge Alba's order to lift the precautionary measure of closure.
"It would be enough for the Chamber itself to accelerate the scheduling of the trial"
Throughout 23 pages, the Provincial Prosecutor's Office of Las Palmas refutes one by one the "scarce grounds" that Judge Alba provides to lift the precautionary measure and reiterates all the evidence highlighted during the instruction, as well as extracts from the different orders that had so far endorsed the closure of Stratvs, including one from the same Section of the Provincial Court and signed by the same rapporteur who has now described the duration of this precautionary measure as "excessive".
On this point, the Prosecutor's Office responds that the Chamber itself has in its hands to shorten the deadlines, since this same Section is the one that must hold the trial. "It would be enough to accelerate the scheduling process and hold the trial", the Public Prosecutor's Office points out, which recalls that the procedure "is waiting for more than 7 months to schedule its trial by the Chamber itself that lifts the precautionary measure", and that it received the case last June.
In addition, it adds that since then the magistrates of this Chamber could also have decided to lift "ex officio" that precautionary measure if they considered it "excessive", but they did not. "Only when the interested party has requested it, almost 6 months after the procedure was in the Sixth Section, has the measure been lifted", the Prosecutor's Office emphasizes.
A previous order "absolutely contrary" to the one they have now issued
In its appeal, the Public Prosecutor's Office makes "special reference" to the order issued by the same Sixth Section in May 2014, which was "very forceful and absolutely contrary to the one issued by the same magistrates", and of which Salvador Alba was also the rapporteur. And it does so, among other things, to reproduce arguments used then by the judge, which "have not been valued and have all disappeared with the new order".
"The consequence of an activity that is not authorized, a construction that is not authorized, that can endanger the environment and the landscape itself in a protected natural space is none other than the precautionary and provisional sealing of the activity and the complex in its entirety", pointed out that first order of Judge Alba, in which he did analyze in detail what he defined as a "large amount of indicative and/or probative material on the existence of several crimes that can be imputed to BTL Lanzarote SL or Juan Francisco Rosa".
However, in the new order, the magistrate "relies on what the applicant alleges and forgets everything that contradicts him and that has been valued previously". And in this way, according to the Prosecutor's Office, he endorses the opening of facilities that are "illegal and impossible to legalize", and that are not "protected by any enabling title". And it is that beyond the alleged environmental crime for polluting discharges, which was the main trigger to order the precautionary closure of the winery, the cause also investigates many other crimes, including urban planning, fraud and occupation of land, which were not even owned by Juan Francisco Rosa.
"The bias of interpretation has been chosen"
Regarding the discharges, the Prosecutor's Office insists that the existence of a water network in the La Geria area is "irrefutable", "and more specifically in the Barranco del Obispo, where the "Stratvs" complex is located". In this regard, it regrets that the order has "granted a letter of nature in an unjustified and unjustifiable way" to the argument of the defense, which denies the existence of these waters.
"We absolutely do not know why the Chamber has not valued the report of the Technical Unit of the Environmental Prosecutor's Office of the State Attorney General's Office, which was in the files and at its disposal to be able to understand what a body of water is, and why it is concluded that this body of water exists and is documented, and the bias of the interpretation given by the applicants for the lifting has been chosen", questions the Public Prosecutor's Office. In addition, although the order insists that it has not entered to analyze "the merits of the matter", the Prosecutor's Office considers that it has done so, "but only in what the applicant for the lifting of the precautionary measure alleges".
Regarding another of the reasons put forward in the order, the Public Prosecutor's Office considers that the Chamber "confuses the nature of personal precautionary measures with real ones", when it alleges that at this procedural moment, lacking only the setting of the date for the holding of the trial, the lifting of the precautionary measure "would not alter the instruction, would harm it or would make evidence or evidence disappear".
On this point, the Prosecutor's Office's appeal points out that Judge Alba "has mutated what was the purpose" of the precautionary measure of closure, "which was to ensure the legal right protected by the ecological crime and avoid the risk of the damages that the maintenance of the polluting activity could cause". In addition, it insists that "no legal precept prohibits limiting a precautionary measure such as this to the instruction phase", unless its real purpose and its own criteria are dispensed with", so it asks that "the imminence of the holding of the trial" be precisely "weighed" and that the closure of the winery and the entire Stratvs complex be maintained until the oral hearing is held.
