The businessman Juan Francisco Rosa has already filed at least four appeals trying to close the case in which he is charged with the occupation of public green areas of Playa Blanca with the Kikoland, but all of them have been rejected: two by the investigating judge himself and the other two by two different sections of the Provincial Court, which understand that there are reasons to continue the investigation.
Rosa testified for the first time before Judge Ricardo Fiestras last Friday, more than three years after the investigation of these proceedings began. However, before even being formally charged, he had already requested to appear in the proceedings. From there, one of the first steps of his lawyer, José Antonio Choclán Montalvo, was to request the dismissal of the case, which was initiated as a result of a complaint filed by the then councilors of Podemos in the Cabildo, Carlos Meca, Pablo Ramírez and Griselda Martínez.
Since then, Rosa's defense has filed at least three more appeals with the same objective, clinging to alleged formal errors or delays in the investigation, and all four have been rejected. The first appeal in the Audiencia was filed against the Court's decision to declare the investigation of the case complex, which allows extending the investigation period.
The businessman's defense appealed first to the Court and, seeing his claim rejected, he did so before the Provincial Court. In his appeal, Rosa's lawyer questioned, among other things, that he had not been notified in his day of the order declaring the complexity of the investigation. However, the First Section of the Audiencia reminded him that this order was issued in June 2017 and that he appeared in the case three months later, in September of that year, so it was difficult to notify him. In addition, he stressed that after his appearance, Rosa took "more than six months" to appeal that decision, so he was not even in time to do so.
"During that time they had enough time to learn about the case, know its procedural status, decisions adopted regarding the development of the criminal investigation and consequences derived from the investigation proceedings already agreed," said the order that rejected that first appeal, dated last May.
"Issues already addressed, discussed and resolved"
Regarding whether the decision to declare the investigation complex was motivated or not, as Juan Francisco Rosa argued, the Chamber added that it was "futile to discuss this now", given that even the new extension of the investigation, which was agreed in August 2019, had already been endorsed by another section of the Audiencia. "These issues are already addressed, discussed and resolved in the order of the Second Section, where it is endorsed, on the one hand, the complexity of the investigation and the period of 18 months of investigation and, on the other hand, the extension of that period for another 18 months," he concluded.
And the second appeal of Rosa, when the investigation period was extended again, was resolved earlier, in January 2020. In that order, the Second Section recalled that "the initial complaint was directed against four natural persons and several legal entities, accusing them of crimes of prevarication and a crime of continued fraud against the administration." "With this data, by itself, we could already understand justified not only the initial declaration of complexity but also the subsequent extension. Especially if, as indicated in the appeal, no statement has even been taken from the investigated", added the Audiencia.
As La Voz has been reporting, these proceedings began in December 2017, but until two years later, the judge in charge of the procedure, Ricardo Fiestras, did not summon the investigated. Finally he did so for February 20, 2020, but they were suspended and did so again on two more occasions in the last year -at least in one of the cases after having requested it himself-, until Rosa finally testified last Friday.
Before, in his last appeal, he had questioned that an extension was necessary, alleging the lack of agility in the investigation. "The fact that the investigation, until now, has been slow, in the opinion of the defense, is something that is not an obstacle to maintain the origin of the extension of the investigation. It may justify in its day that the application of a mitigating circumstance of undue delays is claimed, but it should not lead us to discard, without further ado, the origin of continuing with the current investigation," responded the Second Section of the Audiencia.
“Demands an excessive formal requirement”
Regarding the other reasons alleged by Rosa's defense in his appeals to try to annul the case, they focused on alleged formal errors in which he argued that the investigating judge and the prosecutor had incurred. In the last one, he argued that the extension was decreed without the Prosecutor's Office having formally requested it. Specifically, he asked that the complexity of the case be declared, which had actually already been declared, and Choclán questioned that what was appropriate was to ask for its extension.
"This court cannot share such a formalistic interpretation of the requirements of article 324 made by the defense", responded the Audiencia. "When (the Prosecutor's Office) is interested in a new writing in the declaration of complexity, effectively already declared, and, in addition, that a new term for the investigation of 18 months is set, it is evident that the object of the claim of the public prosecution is not, nor can it be other, than to extend the term of the investigation through the appropriate extension", he added.
"To understand otherwise, to demand the express formality of using the term extension, which is what the defense seems to demand, is nothing more than a demand for an excessive formal requirement and, without a doubt, contrary to the right to effective judicial protection", added the Audiencia. Thus, he concluded that that request "was recorded" and that, therefore, "the decision of the instructor has all the legal support".
In addition, he also rejected Rosa's other argument, which argued that the first declaration of complexity was made "out of time". In this regard, the Audiencia pointed out that it is not even recorded that he had alleged this in his first appeals and questioned that the lawyer was trying to raise it extemporaneously, "demanding an annulment or revocation different from the one that is the object of challenge", which in this case focused on the new extension of the investigation.
The Prosecutor's Office also opposed the appeals
All the judicial resolutions that have rejected Rosa's appeals so far also follow the criteria of the Public Prosecutor's Office. In its writings responding to these appeals, the prosecutor warned of the important volume of documentation to be analyzed and defended that the investigation should continue and that it should be extended, not only because of the volume of documentation to be analyzed, but also because of the need to determine if there were more people to whom "criminal responsibility may be required", in addition to the four investigated from the beginning.
In fact, already in June 2020, the prosecutor ended up asking that all the CC councilors who governed with Reyes and who voted in favor of approving that agreement in the Plenary, despite the fact that it did not have any type of report, should also be summoned as investigated. Two months later, the judge agreed to that request, but those statements have not been made to date.
The only ones that have taken place are those of three witnesses, who were spokespersons for the opposition when the events occurred, and last week those of three defendants. All had also been requested by the Prosecutor's Office, although it was not present at those appearances afterwards.
Along with Rosa, the former mayor of Yaiza, José Francisco Reyes, the former secretary, Vicente Bartolomé Fuentes, and the former administrator of the company Getsu No Denwa, Juan Luis Lorenzo, are charged in the case so far.
This company, which was later absorbed by Princesa Yaiza S.A., was the one that signed the agreement with the City Council of Yaiza in 2004, under the Mayoralty of Reyes, by which the City Council ceded three plots of 30,000 square meters, without even establishing the payment of a fee. That land of the City Council was to be used for public green areas, but instead it was occupied by private companies, which obtained that land for free and with a concession for 50 years. In one of the plots, Juan Francisco Rosa installed the Kikoland, as a children's and leisure area attached to one of his hotels, the Princesa Yaiza, also declared illegal by the Justice.
That agreement ended up being annulled by the City Council in 2016 based on a devastating opinion of the Canary Islands Advisory Council, and the courts have rejected all the appeals filed by Rosa since then, confirming that that transfer was illegal. "It is not only the absence of legal, technical or audit reports, but also the slightest procedure for the achievement of the agreement", said the judgment of the Court, which was later fully ratified by the Superior Court of Justice of the Canary Islands, although that land has not yet been returned to the City Council.
As a result of the illegality of that transfer being known, the then councilors of Podemos in the Cabildo decided to file a complaint in the Courts, which was the one that gave rise to this case, so that criminal responsibilities could also be purged.
