Urban Transparency, appearing as a popular accusation in the Stratvs case, has requested that the three magistrates of the Sixth Section of the Provincial Court who must judge this case be removed from the procedure, since it considers that they have shown "the loss of impartiality" that is required of them. The reason for the challenge is based on the order they issued on December 22, with which they lifted the precautionary measure of sealing the facilities agreed by the investigating judge in December 2013. The rapporteur of this order was Judge Salvador Alba, but the decision was also supported by magistrates Emilio Moya and Carlos Vielba, so the challenge is also directed against them. However, the document places special emphasis on Alba's role and the criminal case opened against him, in which he is being investigated for several crimes and in which Juan Francisco Rosa's lawyer, José Antonio Choclán Montalvo, is involved.
"The court incurs a loss of objective impartiality by having entered to assess the circumstantial evidence that denies the possible commission of the crime against the environment for which this procedure is being processed, thus compromising the future impartiality of the court, by basing the lifting of the measure on the subsistence of indications only outlined by the main defendant," argues the popular accusation, which insists that this order, of just over three pages, was based exclusively on documents and reports provided by Rosa's defense.
In addition, it reiterates that this order was issued "ignoring the rest of the incriminating evidence that distorts these indications", including reports "from the state security forces and corps, the technical body of the environmental prosecutor's office, the judicial experts and the bodies and institutions competent in matters of territorial and environmental planning of the Canary Islands", and also ignoring the judgments that have annulled the Special Plan of La Geria, the ruling that endorsed the precautionary closure of the Stratvs restaurant ordered by the City Council and "the seriousness of the crimes for which Mr. Rosa is accused and the risk of contamination in the crime against the environment for the opening, commissioning and operation of the Stratvs tourist complex".
"Radical and manifest contradiction"
To this, the popular accusation adds that the order enters "into radical and manifest contradiction with other four previous judicial resolutions, which endorsed the adoption of the precautionary measure and its permanence until December 2018". These resolutions include two from the investigating judge, one from the First Section of the Provincial Court and another from the same Sixth Section, which in 2014 issued a forceful order, whose rapporteur was also Salvador Alba, rejecting Rosa's first appeal and supporting the need for the precautionary measure of closure.
Throughout its challenge document, Urban Transparency reproduces several paragraphs of that order, which among other things stated that "the consequence of an activity that is not authorized, a construction that is not authorized, that may 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". In addition, it referred to the "large amount of circumstantial and/or evidentiary material on the existence of several crimes that can be imputed to BTL Lanzarote SL or Juan Francisco Rosa".
However, in its new resolution, the magistrate "relies on what the applicant alleges and forgets everything that contradicts him and that has been previously assessed", according to the Provincial Prosecutor's Office of Las Palmas, which, like the popular accusation, has appealed that order.
Now, with its challenge, Urban Transparency asks that the appeals against the lifting of the precautionary measure not be resolved by these same magistrates. As for the rest of the procedure, it requests that it be suspended until the challenge incident is resolved, after "hearing" also the Public Prosecutor's Office.
Other actions by Alba "only confirm the doubts"
Although it is directed against the three magistrates that make up the Chamber, the challenge document of Urban Transparency places special emphasis on the role of Salvador Alba, who was the rapporteur of the order and must also be the rapporteur of the judgment that is issued after the trial, in case the challenge does not prosper. In this regard, the popular accusation refers to other "procedural actions subsequent to the order" that "only confirm the doubts raised regarding the loss of objective impartiality".
Thus, it refers to the order that Judge Alba issued last week, ordering Seprona to go and remove the seal from Stratvs, to comply with the order that lifted the precautionary measure. This order, as published by La Voz de Lanzarote, was issued at the request of the lawyer of Rosa's company, BTL Lanzarote, who called the Sixth Section of the Court by telephone to request this measure.
"It is quite unusual for an execution of the judicial resolution adopted by the Chamber to be attended to by means of a telephone call from the lawyer", questions Urban Transparency, which emphasizes that the appropriate thing would have been "to refer the aforementioned lawyer to the ordinary procedure of presenting a document signed by the solicitor, as legal representative, and signed by said lawyer". And even more so, it considers that "it lacks explanation" that afterwards the judge issued a resolution "attending to such an extravagant request in a hasty manner, since the deadline for formalizing the appeals that could be filed against the order had not even elapsed". In fact, finally the Chamber itself has annulled that order, as published by the media outlet owned by Juan Francisco Rosa, stating that it will wait to resolve the appeals of the Prosecutor's Office and the popular accusation before deciding whether or not to order the unsealing.
Choclán Montalvo, in the Stratvs case and in the case against Alba
Regarding the intervention of Salvador Alba, the popular accusation also maintains that he incurs in another cause for challenge. "The circumstance exists that the lawyer of the company BTL Lanzarote is José Antonio Choclán Montalvo", points out Urban Transparency, which recalls that this same lawyer represents the businessman from Gran Canaria Miguel Ángel Ramírez, in a criminal case that is being followed against Alba, for a conversation that this businessman recorded, and in which the judge is being investigated for alleged crimes of "prevarication, negotiations and activity prohibited to officials and abuses in the exercise of his function, as well as the alleged crime of obstruction".
In the opinion of the popular accusation, "this circumstance alone should be enough for Mr. Alba Mesa to refrain from intervening in any procedure in which Mr. Choclán Montalvo acted as a lawyer, since his action as a lawyer in those preliminary proceedings, in defense of a position and of procedural claims clearly contrary to the personal and professional interests of Alba Mesa, inevitably has to weigh on the mood of the aforementioned magistrate, compromising his impartiality, regardless of what is meant in which it influences or may influence his mood said circumstance".
In this regard, among the different jurisprudence that he cites in his writing on the causes of challenge, Urban Transparency reproduces one from the Supreme Court that states that "even appearances can have importance, since they can affect the confidence that the courts of a democratic society must inspire in citizens in general and, in particular, in those who are part of the process".
"The pronouncements" of the order, "more than sufficient cause" for challenge
In addition, the popular accusation insists that the order ordering the lifting of the precautionary measure of closure implies prejudging the substance of the matter, which cannot be done in this phase of the procedure, since the magistrates "manifest themselves with meridian clarity on the guilt of the defendant in the commission of the environmental crime, anticipating or prejudging the ruling, in an exercise typical of the investigative activity and of those who judge and sentence the investigated facts".
To support this, it refers to different judgments of the Supreme Court on the cases in which a magistrate must be removed from a case that he is going to judge, when he has previously resolved some appeal "expressing a prejudice about the substance of the matter or about the guilt of the accused". And in this case, it considers that "the pronouncements contained in the order are more than sufficient cause" for the challenge to be upheld.
"We are before an action prior to the oral trial of a chamber to which the duty to judge with impartiality on the guilt and authorship of the accused is imposed", underlines the popular accusation, which considers that the order "entails a probative prejudice", "anticipating assessments and conclusions that can only be reached in the plenary session", that is, during the trial, "subjecting to the principle of contradiction the abundant evidentiary material that appears in the proceedings".
Thus, as already raised in its appeal against the order, Urban Transparency insists that the challenged magistrates opted "clearly for the bias of interpretation offered by the main defendant", Juan Francisco Rosa, "since without even analyzing the abundant evidentiary material in the proceedings, to contrast it with the documents and reports provided by the main defendant, they have already formed a criterion and have reached the conviction that there is incontrovertible evidence on the non-existence of a water network in the place where the Stratvs winery is located and on the absence of indications of contamination".
In addition, unlike the first order issued by the same magistrates, the last resolution lifting the precautionary measure is limited to analyzing the alleged environmental crime of polluting discharges, but "obviates" the rest. In this regard, in its appeal against the order, the Prosecutor's Office also described as "incomprehensible" that the precautionary measure is lifted "and the opening of the winery is proceeded when its operation is illegal due to the lack of enabling titles and the frontal contradiction with the urban planning that is applicable to it".
