The trial for the seizure of the Montaña Roja desalination plant was adjourned for sentencing this Wednesday, with a request for 8 years of disqualification for the former president of the Cabildo, Pedro San Ginés, and for the other two defendants: the former secretary, Francisco Perdomo, and the former manager of the Insular Water Council, José Juan Hernández Duchemín. That is what the private prosecution is demanding, which considers that there was a "textbook" case of malfeasance; while the prosecutor has ratified the new position she expressed a year after the investigation of this case ended, and has requested acquittal.
In her conclusions, the lawyer for the private prosecution stressed that "the change of criteria of the Public Prosecutor's Office is not understood", which until June 2018 maintained that there was "sufficient evidence" of a crime. In fact, she opposed the appeals filed by all the defendants against the judge's order closing the investigation, in which he concluded the same. For his part, Pedro San Ginés' lawyer began his final plea by subscribing "entirely" to the prosecutor's final intervention, which he described as "brilliant".
In those conclusions, the Public Prosecutor's representative did highlight that the seizure - ordered by San Ginés as a precautionary measure within a sanctioning procedure for three minor and one less serious offence - was not "proportional", and that "less onerous measures existed". In fact, she recalled that this was the conclusion of the High Court of Justice of the Canary Islands, which annulled the seizure and warned that it was a "serious administrative action", as this measure had been adopted without judicial authorisation and without processing the appropriate file, since there were no prior reports and the company was not given a prior hearing or period for allegations.
However, the prosecutor then argued that the fact that an administrative resolution is null and void does not "necessarily" imply that there is a crime of malfeasance. "That would leave the contentious-administrative channel without object," she added.
The withdrawal of Club as prosecution and the role of Calatayud
In this regard, she stated that this measure "did not cause any damage to the users", i.e. the residents of the Montaña Roja partial plan, who received the water through that desalination plant. And with respect to the owner of the plants, Club Lanzarote, she recalled that it ended up withdrawing as a private prosecutor in this procedure, after negotiating an agreement with San Ginés, when he was still president of the Cabildo, by which it continues to operate the desalination plant and the treatment plant today, without any fine or sanction being imposed on it.
It was shortly after the plaintiff withdrew - who still has appeared as a witness in the trial, confirming the "damage" that this measure caused them - when the Prosecutor's Office modified the criteria it had maintained until then and went on to not file charges.
At that time, another change had also occurred: the dropping of charges against the external lawyer Ignacio Calatayud, in an order issued by Judge Salvador Alba, who was later convicted and removed from his post for corruption. The former magistrate upheld an appeal by Calatayud, which was opposed by the Public Prosecutor's Office, which considered him the "ideologue" of the seizure.
During the three days of the trial, the prosecutor directed questions to several witnesses and defendants in relation to that role of Calatayud, and to the fact that at the same time he worked for Canal Gestión, to whom the seized plants were handed over. And also about the "benefits" that this could have brought to Canal. However, in her conclusions she maintained that "regardless of whether or not Calatayud worked" for Canal Gestión, it was "the only entity that could manage those facilities".
In addition, after having stated that there was no "proportionality" in the seizure ordered by San Ginés, at another point she defended that the sanctioning procedure could also end with the order to cease the activity.
"Why is there no legal report? Because it was going to be negative"
For her part, the lawyer for the prosecution recalled all the judicial resolutions that declared that decision illegal - which included up to "11 breaches of 6 different rules" and was "so gross that it was ordered to return the plant" - and insisted that the order issued by San Ginés was not just a mistake or an error. "You can be wrong in one thing, but not in everything", the lawyer stressed, listing all the steps that were omitted.
Among them, that he did not even ask for a prior legal report confirming the legality of that measure. Also that there was no judicial authorisation, nor "proportion between a possible fine of 7,800 euros - which was the maximum sanction foreseen in the file - or keeping the plant", which is what they did with the seizure as a precautionary measure.
"Why is there no legal report? Because it was going to be negative. Why didn't they ask for judicial authorisation? Because they weren't going to get it", the lawyer argued. "If things had been done as the law says, they would not have been able to do what they wanted, which was to hand over the Club Lanzarote plant to Canal Gestión".
Thus, she argued that the defendants acted "in a perfectly orchestrated and planned manner" to "impose their private interests on the law". "I hand over the plant to the company where my friend works and whose manager charges a percentage of productivity for increasing profits", she said, referring to Calatayud and the former manager of Canal, Gerardo Díaz.
From years without taking measures to the seizure
In addition, she insisted that there were no urgent criteria justifying acting in this way, when they had been aware of the warnings about the alleged irregularities for years and had not adopted any measures.
In this regard, she recalled that during the trial it has been highlighted that months before the seizure, representatives of the Consortium and the Water Council visited the Club Lanzarote plants together with the manager of Canal Gestión, who had already been informed that he could take charge of these facilities. For the lawyer, this shows that there was no "urgency" and that they had enough time to comply with the obligatory steps when instructing a file.
"They could have asked for reports, but it was not done because they knew they were going to be negative", she insisted, stating that there was "abuse of power" and "pure and simple arbitrariness" on the part of San Ginés.
With respect to the secretary - who in this repetition of the trial has refused to testify, but who bases his defence on the fact that he did not issue any report endorsing the seizure - the lawyer stressed that he should have intervened to warn San Ginés that this report was obligatory, instead of putting his signature next to that of the president in the resolution.
"If he has such an impeccable track record, why doesn't he defend his advice and his innocence, when he is being accused of malfeasance", the lawyer for the prosecution stressed, questioning Perdomo's silence, who did testify in the first trial - which San Ginés' defence managed to have suspended a year ago - but has refused to do so in this one.
"Entangling, confusing and confounding"
"The defence has created a fiction", trying to "entangle, confuse and confound this court and public opinion", the lawyer for the prosecution argued.
To this end, she considers that "afterwards, an attempt has been made to dress up" this action, citing witnesses for files that were opened years later to Club Lanzarote and experts - also hired after this complaint - paid with public money from the Consortium, under the presidency of San Ginés.
"Reports from professors and reports from lawyers who are now friends have been paid for with public money", the lawyer for the prosecution questioned, also referring to the opinion issued by Ignacio Calatayud 10 days after the seizure was carried out.
However, before that measure was ordered, there were no sanctions, fines or files against Club Lanzarote. The first one was opened on the same day that the seizure was ordered as a precautionary measure. In this regard, the defendants and other witnesses have argued that in previous years they had been trying to reach an agreement with the company to "regularise" the situation.
"The administration does not negotiate. That is the breeding ground for cronyism and influence peddling", the lawyer for the prosecution warned, pointing out that if there were really serious irregularities, what they should have done was to address the Government of the Canary Islands, which was the one with powers to act.
In addition, she stressed that what the defendants did have, and in particular Pedro San Ginés, was warnings that what they were doing was illegal, as this was conveyed to them by Club Lanzarote, which tried to oppose the seizure. In fact, to take the plant they had to call a locksmith who forced the padlock at the entrance and up to 20 locks inside the facilities, and who was paid by Canal Gestión.
"The same thing that the courts have said afterwards, they were warned", the lawyer insisted, reiterating that all the subsequent files cited by the defences ended without any sanction or fine being executed against Club Lanzarote. "Not 35 million, not 20, not anything".
"The rule of law and democracy are being damaged", the lawyer concluded, defending the role of her representatives, the former Podemos councillors Carlos Meca and Pablo Ramírez, who are exercising the private prosecution in a personal capacity. "We want to prevent the defendants from managing institutions and public funds again for their own interests", she stressed.
"The world upside down", according to San Ginés' lawyer
As for the lawyers of the defendants, they have all requested free acquittal and also an "express condemnation of costs" to the private prosecution. In the case of San Ginés' lawyer, he went so far as to describe the "approach" of the lawyer for the prosecution as "musty, populist and unacceptable", and again insisted that she is not legitimately involved, which is the same thing he argued unsuccessfully to avoid the trial.
As for his allegations, he emphasised the prior requirements that the Deputy of the Common had, and also the agreement that was finally reached with Club Lanzarote, which withdrew from all the lawsuits they had open. "The Club people are now paying a fee. And they are still making money, but a little less", he said.
Regarding the absence of legal reports prior to the seizure, he argued that the resolution signed by San Ginés "must be understood as an opinion of those who were working on that matter". It should be recalled that the president claims that he did not draft the resolution he signed, but neither has anyone - neither during the investigation nor in the trial - taken responsibility for having drafted it.
As for the "proportionality" of the measure, he acknowledged that "it may be debatable", although he argued that this does not justify "a conviction for malfeasance".
In addition, he insisted on questioning the intervention of the lawyer for the prosecution because he considers it "in bad taste" to ask "what one or the other charges" or to try to define the relations between them all. "Why can't you be friends with a legal advisor?", he asked, referring to the relationship between San Ginés and Ignacio Calatayud.
"We are in the world upside down", he went on to question, stating that those who are in the dock "dared to confront a businessman with power and capacity for influence". "Your Honour, put things in their place and put an end to the world upside down", he concluded.
The defence of the other two defendants argues that they could not have been the perpetrators
For their part, both the lawyer for Francisco Perdomo and the lawyer for José Juan Hernández Duchemín have argued that they could not have incurred in a crime of malfeasance as material authors, because they did not issue the resolution ordering the seizure. "It is legally impossible", Perdomo's lawyer argued.
"The person empowered to make the decision was the president. My client cannot be accused", he insisted, specifying that in any case he could be a necessary collaborator, which is a qualification that has not been made.
In addition, he ironised about the thesis of the prosecution, which maintains that the three defendants acted in an "orchestrated" manner. Thus, he referred to an "imaginary concert" that only exists "in the fanciful mind of the person promoting the accusation", who "sees giants where there are only windmills".
With respect to his client, he insisted that "he did not intervene in the elaboration nor did he issue the resolution", and that his "only participation was a verbal information, weeks before the seizure", in which "different options were considered".
Finally, Hernández Duchemín's lawyer also questioned that he could be accused or convicted as the author of a crime of malfeasance, because "for that it is necessary to issue a resolution". In his case, what he issued was a proposal to open a file, in which he did not refer to the seizure. Afterwards, after San Ginés' resolution he was in charge of making it effective, with the handing over of the plants to Canal Gestión.
San Ginés' last word
The trial ended with the last word of the defendants, although only Pedro San Ginés and, briefly, José Juan Hernández Duchemín made use of it, to state that in his 47 years as a civil servant of the Cabildo he has "always" "defended legality and the public interest", and to argue that he is being the victim of a "reprisal" for doing so.
For his part, San Ginés spoke for several minutes and began by pointing out that he was going to talk about "something that has not been focused on" in the trial. Thus, he referred to the difference between public and private, pointing out that "nobody disputes that desalination plants are called to be public at some point".
He also argued that he acted "advised" and that there is no grievance with respect to other private plants that also operate on the island, many without even having authorisation, because according to him this was "the only one that sold water".
"The only title it had was for self-consumption. It doesn't even have a title today. What it has is an agreement", he said, referring to the agreement he himself reached with Club Lanzarote, after the courts annulled the seizure and after he was charged in this case, following the complaint filed by the company.
In addition, he insisted that "the secretary's advice is on record in the minutes". Regarding his silence in this trial, he considered that this is not "any indication" of Perdomo's guilt, stating that it is because he is not accompanied by "the state of mind to repeat" what he had already stated on other occasions.
"The prosecution says that I had a personal interest, but it has not said what it was. What was my personal interest?", he asked, raising his voice, and questioning again the legitimacy of the prosecution.
Finally, he ended by casting doubt on the firm judicial resolutions that annulled the seizure, appealing to the fact that there were other pending pronouncements, which were not issued thanks to the agreement he reached with Club, by which the company withdrew from all the lawsuits. Thus, he concluded by stating that "we will never know" if his decision was "right or wrong".