CRIMINAL COURT NO. 3 OF ARRECIFE
In Arrecife, on MARCH 9, 2009.
The Honorable Mrs. AITZIBER OLEAGA ORUE-REMENTERIA, Magistrate-Judge of the Criminal Court No. 3 of Arrecife, has pronounced the following
SENTENCE
In the Oral and public Trial of the case that with number 42/07 (D.P 191/05) was processed by the Investigating Court number 3 of Arrecife, by abbreviated procedure and crime of URBAN PLANNING MALFEASANCE, appearing as public accuser the Public Prosecutor's Office, against the accused, Mr. JOSE FRANCISCO REYES RODRIGUEZ, born in Femes (Yaiza), on 13-09-1952, son of José Francisco and María Teresa, with ID 42.901053-G, without criminal records, in freedom for this case, and under the legal direction of Mr. Felipe Fernández Camero.
BACKGROUND
FIRST.- These criminal proceedings were initiated as Preliminary proceedings nº 191/05 by the Investigating Court nº 3 of Arrecife, and later ABBREVIATED PROCEDURE for crime nº 42/08, having been processed in accordance with the provisions of the procedural laws, the date for the oral trial being set for MARCH 9, 2009, in which, with the assistance of the Public Prosecutor's Office, the defense lawyer, as well as the accused, the proposed evidence was presented with the result that appears in the minutes that were drawn up for that purpose and is attached to the proceedings.
SECOND.- The Public Prosecutor's Office, in its provisional conclusions, classified the facts as constituting a crime of URBAN PLANNING MALFEASANCE typified and punished in articles 320.2 and 11 a) of the Penal Code, in relation to articles 27, 54, 55 a). 170. 1ºand 4º, 176.1º and concordant of the Consolidated Text of the Legislative Decree 1/2000, of May 8, which approved the Consolidated Text of the Law of Land Planning and Natural Spaces of the Canary Islands, and with the provisions of the 6th Transitory Provision, letter B, of said Consolidated Text, article 5.6.3.2. of the Island Plan of Land Planning of Lanzarote approved by Decree 63/1991, of April 9, and the General Plan of Land Planning of Yaiza of 1973, requesting the conviction of the accused to a sentence of SPECIAL DISQUALIFICATION FOR EMPLOYMENT OR PUBLIC OFFICE FOR TEN YEARS AND A FINE OF TWENTY-FOUR MONTHS, at a daily rate of 36 ?, with the subsidiary personal liability of article 53.1 of the Penal Code, and to the payment of the procedural costs.
The Public Prosecutor's Office modified its brief in the following sense:
The 2nd), adding after art. 27, art. 44.4º of the legislative text.
The 5th), requesting a sentence of TWO YEARS IMPRISONMENT and special disqualification for the right to vote during the time of the sentence, maintaining the rest of the brief of conclusions.
THIRD.- The defense of the accused, requested in its final conclusion the acquittal of the accused with all favorable pronouncements, after which, having heard the accused, the trial was declared concluded for sentencing.
PROVEN FACTS
It is proven and thus declared that the accused, Mr. JOSE FRANCISCO REYES RODRIGUEZ, of legal age and without criminal records, and mayor of Yaiza in 2004-2005, knew initially or subsequently that, regardless of the license granted to the developer Mr. José Eugenio Camacho to carry out a classified activity, the execution of the renovation and extension works of the property, located at nº 23 of General García Escamez street in Yaiza, for its transformation into a bar/restaurant, with extension of what was already built by constructing restrooms and a kitchen, which works lasted until January 17, 2005, the date on which a certificate of completion of the works was issued, because they were works to be carried out on rustic land under territorial protection, required that the Island Council of Lanzarote approve the territorial classification before granting the corresponding municipal building permit to the developer.
Knowing that the territorial classification for these works had not been approved by the Island Council of Lanzarote, and breaching his legal obligation to prohibit the works from starting or his legal obligation to order the suspension of the works already started, Mr. José Francisco Reyes, as Mayor of Yaiza, consented to the execution of the aforementioned works. On January 10, 2005, with the execution of the works nearing completion and knowing that these works had not obtained territorial classification from the Island Council of Lanzarote, Mr. José Francisco Reyes signed a Mayoral Decree granting the municipal building permit to Mr. José Eugenio Camacho.
LEGAL BASIS
FIRST- The facts declared proven in the preceding section of this resolution constitute a crime of URBAN PLANNING MALFEASANCE under 320.2º CP and 11 a) of the Penal Code, in relation to articles 27, 44.4, 54, 55 a). 170. 1ºand 4º, 176.1º and concordant of the Consolidated Text of the Legislative Decree 1/2000, of May 8, which approved the Consolidated Text of the Law of Land Planning and Natural Spaces of the Canary Islands, and with the provisions of the 6th Transitory Provision, letter B, of said Consolidated Text, article 5.6.3.2. of the Island Plan of Land Planning of Lanzarote approved by Decree 63/1991, of April 9, and the General Plan of Land Planning of Yaiza of 1973.
The Supreme Court (S. 1.7.00 EDJ 2000/21390 ), regarding the crime of malfeasance by a public official, has been requiring the concurrence of the following elements:
1º) That a person who has the status of authority or public official adopts a resolution in an administrative matter, that is, that he/she expressly or tacitly, orally or in writing, makes a declaration of will with a decisive content that affects the rights of the administered.
2º) That this resolution is unfair, not in the sense of merely illegal or contrary to law, but patently and flagrantly opposed to the legal system, and which may consist of lack of competence to adopt the resolution, the failure to observe the most elementary procedural rules, or in that its content constitutes a clear distortion of just conduct.
3º) That the agent of the act acts with clear awareness of the arbitrariness, "knowingly" according to the established phrase, of the injustice of his resolution. It has been insisted in this doctrine on the need not to resort to any erroneous or debatable interpretation of the legal rules, to understand that the conduct of the official must be considered criminal, but that such character must be reserved for actions fully and patently contrary to justice, and thus, when the resolution can be reviewed and its harmful consequences modified through administrative appeal, it will not generally be considered criminal, thus avoiding the social group always depending on resorting to the last ratio, which is the criminal sanction, to solve problems arising in public administration.
Some of the lines of this jurisprudential doctrine have been expressly recognized in the text of the new Penal Code EDL 1995/16398 which has changed the previous expression "unfair" which qualified the resolution in the former art. 358 EDL 1973/1704 , and determined the need to judicially establish the limited scope of the same expression, by that of "arbitrary", much more expressive of the important degree of its opposition to the rule.
Such defining elements of the crime of malfeasance concur in the action carried out by the accused. Thus, analyzing each of them separately, it is observed that:
In the case at hand, from the evidence presented at the trial with all guarantees and duly subject to the principles of immediacy, contradiction and orality, it is proven that the accused, Mr. Reyes Rodríguez, acting as mayor of Yaiza, knowing that the territorial classification had not been approved by the Island Council of Lanzarote for some works, located at nº 23 of General García Escamez Street in Yaiza, for its transformation into a bar/restaurant, with extension of what was already built by constructing restrooms and a kitchen, breaching his legal obligation to prohibit the works from starting or his legal obligation to order the suspension of the works already started, consented to the execution of the aforementioned works, and on January 10, 2005, with the execution of the works nearing completion and knowing that these works had not obtained territorial classification from the Island Council of Lanzarote, signed a Mayoral Decree granting the municipal building permit to Mr. José Eugenio Camacho.
There is no doubt that criminal law is governed by the principle of minimum intervention and that administrative irregularities or even illegalities must be resolved through the administrative litigation jurisdiction, with the intervention of criminal law being reserved exclusively for those cases in which the existence of the elements of the crime is clearly appreciated according to the legislator's provision and that, as regards the crime of malfeasance, as analyzed and interpreted by the jurisprudence of the Supreme Court (SS 27/1/98 EDJ 1998/366 ,23/4/97 EDJ 1997/2773 ...), it implies that there must be an unfair administrative resolution, whose illegality is evident, patent, flagrant and blatant, that is, it exceeds the mere evidence of illegality, emphasizing the easy cognizance of the contradiction of the act with the law, which implies an arbitrary exercise of power, the official not submitting, when issuing his resolution, to what is wanted by the Constitution EDL 1978/3879 and the rest of the legal system, but to his whim and will (SSTS 23/5/98 EDJ 1998/3923 , 4/12/98 and 23/10/2000), with full knowledge by the authority of the official of the injustice of the resolution he issues, this subjective element being of special importance, which the Supreme Court has drawn attention to in those cases in which, in the case of administrative malfeasance, the alleged perpetrator may not be a jurist (STS 23/10/2000).
In the present case, the first and second elements of the crime concur, given that the former mayor signed a Mayoral Decree granting the municipal building permit to Mr. José Eugenio Camacho, a fact he himself acknowledged, and this Decree is unfair because it is patently and flagrantly opposed to the legal system, due to the failure to observe the most elementary procedural rules, which consisted of obtaining the Territorial Classification, a circumstance that was brought to his attention by resolution 3055/04 of the Honorable President of the Island Council dated August 11, 2004, stating that "in accordance with the provisions of art. 71.5 of Law 1/98 on the Legal Regime of Public Shows and Classified Activities, it is stated that the activity is located on Rustic Land under Territorial Protection, therefore the Territorial Classification is necessary" (folio 82 verso).
But furthermore, the Mayor's knowledge went further, since his own technicians informed him about the urban classification of the land where the works were to be carried out to modify the use of the building from residential to commercial (bar-restaurant).
Thus, the municipal technician Mr. Andrés Morales González, in his report dated December 15, 2004 (folio 83) stated that "in the General Plan of Land Planning of the Municipality of Yaiza of 1973, the affected area is a Landscape Reserve Area".
The 6th Transitory Provision, B) of Legislative Decree 1/2000 of May 8, which approves the Law of Land Planning and Natural Spaces of the Canary Islands, is quite clear in that for this case it would only be possible to classify all land as urban and as rustic, establishing that the latter classification will be given, more specifically (rustic land under territorial protection), to all land that does not have the express classification of urban in the urban land planning definitively approved before the entry into force of said Law, and since the Yaiza Plan of 1973 classified it as a landscape reserve, it was not urban land.
The curious thing is that the former mayor himself, Mr. Reyes Rodríguez, requested a report from the municipal technician Mr. Antonio Lorenzo Tejera on certain aspects such as 1st) urban classification of the affected land and of the construction according to the currently in force General Plan of Land Planning; 2nd) whether, according to said classification, the General Plan of Land Planning of 1973 contemplated the building as out of order (folio 84).
The accused, argued in the plenary session with respect to this report, that he did not remember it, which is surprising, considering that it is not acceptable for a former mayor to hide behind the fact that he did not read what he signed and that the writings were prepared by his technicians and that they were "routine".
Likewise, the municipal technician Mr. Antonio Lorenzo Tejera, in his report dated December 16, 2004, replying to the Mayor, states that 1st) it is a Landscape Reserve area (volcanic zone) and that 2nd) it is out of order (folio 85).
Finally, the Secretary of the Yaiza City Council himself, Mr. Vicente Bartolomé Fuentes, in his report dated December 29, 2004, 12 days before the former mayor signed the Decree granting the license, states that "in view of the information provided by the municipal technicians and that issued in turn by the Island Council, this official understands that the current classification of the territories where the future restaurant activity is located is that of rustic land under territorial protection, and therefore the urban planning regime would be that contemplated in articles 62 (rights and duties of the owners of rustic land) and 63 (specific regime of the different categories of rustic land of the current Legislative Decree 1/200 of May 8".
But it is not only that a Resolution of the President of the Island Council states in August 2004 that the land is Rustic Land under Territorial Protection, it is that the mayor himself consults his technicians and they respond in the same sense as the aforementioned Resolution of the Island Council, and one thing is clear, it may be that the mayor, due to negligence, did not read the reports he received from the Island Council, and even worse, those made by his technicians, when it is the main thing he has to do in the exercise of the functions of his position, when, as he himself acknowledges, he has no higher education and knows nothing about urban planning, but what this Judge does not believe at all is that one of his own technicians wrote a query (folio 84) in his name addressed to another of the City Council's technicians, and the fact that Mr. Reyes Rodríguez has alleged that he ignores many of the writings that were made in his City Council shows very little responsibility, if not none, in his management as Mayor. Therefore, it is obvious that the Mayor made the query and therefore, it is not credible that he failed to heed the report issued by the technician to whom he made it.
At the same time, the Island Council of Lanzarote itself issued a report dated December 1, 2005 at the request of the Investigating Court No. 3 of Arrecife, which states that "In accordance with the 6th Transitory Provision, letter B of the Consolidated Text approved by Legislative Decree 1/200 of May 8, the land is classified as "rustic land" and categorized as "rustic land under territorial protection". On rustic land under territorial protection, the only permitted uses are provisional and made with easily removable materials (articles 61 and 63 of the aforementioned consolidated text).
Finally, the Island Council issued Resolution No. 1,746/05 dated May 17, 2005, which was presented at the oral trial by the Public Prosecutor's Office, and which was accompanied by the Island Council technicians who issued the report that served as the basis for the aforementioned Resolution, which begins by stating that the urban legality of the existing building is unknown, a building that in the worst case is illegal and, in the best case, is out of order, a statement that coincides with that made much earlier by one of the technicians of the Yaiza City Council, Mr. Antonio Lorenzo Tejera, who in his report dated December 16, 2004, replying to the Mayor, states that 1st) it is a Landscape Reserve area (volcanic zone) and that 2nd) it is out of order (folio 85), stating that it is "rustic land under territorial protection" in the same terms as expressed in the previous report of the Island Council itself of December 1, 2005, and that if the property were out of order, only repair and conservation works required for strict conservation and use in accordance with the established purpose would be possible, changes of use not being admissible (art. 44-4 of the Consolidated Text, so from the foregoing, it is concluded that since it is not a provisional use and changes of use are not permitted in those out of order, the work intended is not admissible (art. 44, 61, 63 of the Consolidated Text).
In short, the element of the crime occurs when the authority or official, fully aware that he is acting outside the legal system and that he is causing a materially unjust result, acts in such a way because he wants this result and puts the content of his will before any other reasoning or consideration, especially if, as in the present case, his conduct sought to produce a materially unjust result and with the purpose of enforcing his particular will, with the knowledge of acting against the law. In this sense, the Supreme Court ruling of March 5, 2003 EDJ 2003/6590 .
Thus, in the specific case, having carefully examined all the evidence, the conviction is reached that the Mayor knew that the land was not urban, but rustic land under territorial protection, and for this purpose, the statement of the former mayor himself has been taken into account, who stated either that he did not remember anything, or that during his entire term as mayor of the municipality of Yaiza from 1994 to 2004-2005, he does not know what he signed because he did not read it, and this because he fully trusted the technicians of his City Council, a statement that has been vague, imprecise and inconclusive, and on the other hand, all the documentation in the case file and the expert reports above all.
In principle, it is striking that a mayor states time and again that he does not know what he signed, because he did not read it, and that not having an adequate education (referring to his studies), even if he had read it, he would not have understood it. In these cases, when a mayor who has to resolve on such delicate matters as urban planning, cannot argue that he does not understand what he has to decide every day, and bear in mind that Mr. Reyes Rodríguez has been mayor of Yaiza for at least 10 years, during which the urban development of that municipality and of the whole island in general has been enormous, and it is inconceivable that a mayor who has been in charge of the City Council for so long is unaware of such everyday and abundant matters as the granting of licenses of all types and kinds.
On the other hand, the former mayor has ignored all the reports of the Island Council and his own technicians that pointed out the nature of the land, about which he himself, and it must not be forgotten, consulted to be specifically informed. Therefore, and to conclude, it can be said that the third element of the crime of malfeasance also concurs, namely, that the agent of the act acts with clear awareness of the arbitrariness, "knowingly" according to the established phrase, of the injustice of his resolution.
The defense argued that the prosecution has not proven the classification of the land, and that the same land cannot be rustic landscape and under territorial protection, but the truth is that this fact has been perfectly proven, given that it has been made clear that it is "rustic land under territorial protection", the defense also alleging that, due to the fact that it is part of the town center and that nothing more is known because nothing has been proven about the nature of the land, it is understood that it is materially urban land because it has the four typical urban services such as road access, etc. This argument was the one maintained by the former mayor when stating that he believed that the land was urban for these reasons, but paradoxically, it must be remembered again, the accused requested a report from his own technician who told him otherwise, the same as the Secretary of the City Council himself, and the accused still wants us to believe that he still thought it was urban.
The defense continues to maintain that if the classification of the land is not known, it cannot be said that it requires a territorial classification, given that if it were not rustic, it would not require it and they would not be in the dock, forgetting again that it has been proven that the land is not urban but "rustic land under territorial protection" which requires a territorial classification (art. 27 of the Consolidated Text 1/2000), without which, the license granted on it is null and void (art. 170.4º and 176 of the Consolidated Text 1/2000).
On the other hand, there is no contradiction, as the defense stated, between the landscape nature of the land (classified as such by the Yaiza Plan) and the rustic land under territorial protection, classified as such by the 6th Transitory Provision B) of the Consolidated Text 1/2000 of May 8 (Law of Land Planning of the Canary Islands and Natural Spaces of the Canary Islands), and both the Island Plan of Lanzarote and the Municipal Plan of Yaiza are regulatory rules, both subordinate to the legal rule, hierarchically superior, which is the Law of Land Planning of the Canary Islands.
Finally, and as stated by the Provincial Court of Las Palmas in the order resolving the accused's appeal against the order of April 20, 2006 of the Investigating Court, after it is clear what the classification of the land is, it must be examined whether the type of construction intended by the resident of Yaiza and for which the Mayor granted a license is possible on it, and on this point, the answer is given in the Land Planning Law itself in its articles 61 and 63 (only provisional uses made with easily removable materials are permitted) and art. 44.4º of the Consolidated Text (in the event that the property is out of order, in the best case, because there is the possibility that it is even illegal, only repair and conservation works required for strict conservation are possible, changes of use not being possible. In this case, the Law does not refer to the change of use of the land from agricultural to mining, for example, as the defense pointed out, but to the change of use of the building, given that it refers in any case to the works. However, it is obvious that the works intended were neither provisional nor conservation works, since they included new restrooms and a kitchen, according to the project report itself, although this fact was later denied by the owner of the property and by the expert who made the project work at the oral trial. The works also intended to change the use of the property from residential to commercial, as it was intended for a Bar-Restaurant.
In conclusion, the works, due to their nature (neither provisional nor conservation), could not be carried out on this type of land.
With regard to the purpose of granting a license to a resident arbitrarily, it may be for various reasons, such as friendship, recognition of his position among the residents by favoring them in their private spheres, or any other, which, moreover, are irrelevant and do not have to be proven by the prosecution, due to the difficulty thereof, as they belong to the intimate sphere of the accused.
In another vein, in the present case we are dealing with a crime of commission by omission.
The current Penal Code 1995/16398 contains in its article 11 an express regulation of commission by omission through a general clause. The structure of the crime of commission by omission that the doctrine of the Second Chamber of the Supreme Court had been specifying before the Penal Code of 1995 EDL 1995/16398 (cf., among many others, judgment of January 19, 1994) is not overruled by article 11 of the Penal Code EDL 1995/16398.
The objective type is made up of the following notes:
a) That the non-avoidance of the result implied by the omission is equivalent to its causation.
b) That the result that has not been avoided is typical.
c) That a special legal duty that was required of him for the avoidance of the result due to his position as guarantor has been infringed. And the sources of this position of guarantee are specified in the aforementioned article 11, in a double alternative, in the following terms:
"a) When there is a specific legal or contractual obligation to act".
"b) When the omitter has created a risk situation for the legally protected asset through a preceding action or omission". The objective imputation of the result will be affirmed when the subject who was in a position of guarantor could have avoided it through the action that was required of him and has omitted it.
The structure of the crime of commission by omission is made up of the three elements that it shares with pure or proper omission, such as:
a) A typical situation.
b) Absence of the specific action that was required of him.
c) Capacity to perform it; as well as another three that are specific to it and necessary for objective imputation to be affirmed: the position of guarantor, the production of the result and the possibility of avoiding it.
In the non-jurisdictional Plenary of the Supreme Court, Second Chamber, held on June 30, 1997, the conduct of a Mayor who did not convene the plenary session that had been requested of him to decide on a motion of censure was examined. The Agreement was reached that such conduct is subsumable under the crime of malfeasance of article 404 of the Penal Code EDL 1995/16398, on the understanding that the malfeasance contained in that precept can be committed by omission.
This position has been adopted in numerous judgments of this Chamber, as exemplified by Judgments 784/1997, of July 2 EDJ 1997/4838 and 965/1999, of June 14 EDJ 1999/13514 (JUDGMENT OF THE SUPREME COURT 18-10-2006).
As stated above, all the elements that make up the structure of the crime of commission by omission are present, given that the accused, knowing that the territorial classification for these works had not been approved by the Island Council of Lanzarote, breaching his legal obligation to prohibit the works from starting or his legal obligation to order the suspension of the works already started, as Mayor of Yaiza, consented to the execution of the aforementioned works, and on January 10, 2005, with the execution of the works nearing completion and knowing that these works had not obtained territorial classification from the Island Council of Lanzarote, Mr. José Francisco Reyes signed a Mayoral Decree granting the municipal building permit to Mr. José Eugenio Camacho
This failure to do what he was legally obliged to do constituted a patent and open contradiction with the legal system and contempt for the general interests, which is what characterizes the crime of malfeasance that has been applied to him.
This being the case, it can be affirmed that all the objective and subjective elements that characterize the crime of malfeasance concur, whose omissive conduct, knowing its injustice, amounts to issuing an arbitrary resolution in an administrative matter, by not having prohibited the works or by not ordering their suspension once started, which was required of him and for whose compliance he was the guarantor.
In accordance with all the foregoing, it is considered that Mr. Reyes Rodríguez incurred with his conduct in the crime of urban planning malfeasance as all the elements concur, as we have analyzed, and this, based on all the extensive evidence presented by the Public Prosecutor's Office with all guarantees, which has led to the presumption of innocence that governs our Law being rebutted.
SECOND- The facts declared proven constitute a crime of URBAN PLANNING MALFEASANCE by commission by omission typified and punished in articles 320.2 and 11 a) of the Penal Code, in relation to articles 27, 44.4 54, 55 a). 170. 1ºand 4º, 176.1º and concordant of the Consolidated Text of the Legislative Decree 1/2000, of May 8, which approved the Consolidated Text of the Law of Land Planning and Natural Spaces of the Canary Islands, and with the provisions of the 6th Transitory Provision, letter B, of said Consolidated Text, article 5.6.3.2. of the Island Plan of Land Planning of Lanzarote approved by Decree 63/1991, of April 9, and the General Plan of Land Planning of Yaiza of 1973.
THIRD- The accused, Mr. JOSE FRANCISCO REYES RODRIGUEZ, is responsible as the perpetrator of the crime of URBAN PLANNING MALFEASANCE by commission by omission, having directly executed the facts (Art. 28 of the Penal Code).
FOURTH- There are no mitigating circumstances of criminal liability.
The crime of URBAN PLANNING MALFEASANCE is punishable under art. 320.2º of the Penal Code with a sentence of special disqualification for employment or public office for 7 to 10 years (art. 404 of the Penal Code), imprisonment for 6 months to 2 years or a fine of 12 to 24 months, and taking into account the circumstances of the act and the perpetrator, it is appropriate to impose on him the sentence of 24 MONTHS FINE at a daily rate of 36 euros with subsidiary personal liability in the event of non-payment, which would be equivalent to one day of deprivation of liberty for every two installments not paid, and the sentence of 10 YEARS of SPECIAL DISQUALIFICATION FOR EMPLOYMENT OR PUBLIC OFFICE. This sentence is imposed because it is less rigorous than imprisonment, and it is considered appropriate, given that the accused has no criminal record, considering that the accused can afford to pay a daily installment of 36 euros, given that his economic capacity after so many years exercising the mayoralty is presumably sufficient in accordance with art. 50.5 of the Penal Code. In the present case, although the Public Prosecutor's Office requested an increase in the sentence from a fine to imprisonment, the truth is that it did not justify this drastic increase in sentence, it not being sufficient to allege that the facts are serious. The facts are indeed serious because it is a crime that affects the general interests, and because it is a crime committed by an authority who takes advantage of the exercise of his functions, but in the present case, the former mayor's action is not understood to have caused serious damage of any kind (economic, environmental?) as usually happens in similar cases of urban planning malfeasance, so this Judge understands that imprisonment should be reserved for the most serious cases, which there are, and as mentioned, it is valued that the accused has no criminal record when choosing the sentence of a fine.
On the other hand, he is sentenced to 10 years of special disqualification for employment or public office, because it is the highest, as the accused has shown little diligence in exercising his position, alleging that he did not read anything he signed and issuing an arbitrary resolution with knowledge thereof, despite his years of experience, so due to his conduct he does not deserve a lighter sentence.
FIFTH- Articles 109 and 116 of the Penal Code determine that "every person criminally liable for a crime or misdemeanor is also civilly liable if damages arise from the act".
In the present case, no damages have been caused, so there is nothing to resolve on this matter.
SIXTH- The procedural costs are understood to be imposed by law on those criminally liable for any crime or misdemeanor, in accordance with the provisions of article 123 of the Penal Code and 239 et seq. of the Criminal Procedure Act.
In view of the aforementioned legal provisions, concordant and other provisions of general and pertinent application,
RULING
That I must convict and I convict Mr. JOSE FRANCISCO REYES RODRIGUEZ as the perpetrator criminally liable for a crime of URBAN PLANNING MALFEASANCE by commission by omission, without any mitigating circumstances of criminal liability, to the sentence of 24 MONTHS FINE at a daily rate of 36 euros with subsidiary personal liability in the event of non-payment, which would be equivalent to one day of deprivation of liberty for every two installments not paid, and the sentence of 10 YEARS of SPECIAL DISQUALIFICATION FOR EMPLOYMENT OR PUBLIC OFFICE, and to the payment of the costs incurred.
This Sentence is pronounced in Public Hearing and notified to the parties with the warning that an appeal may be lodged against it before the Provincial Court, by means of a writ authorized with the signature of a Lawyer and a Procurator, within ten days following its notification.
Thus, by this my Sentence, definitively judging in the first instance, I pronounce, order and sign it.
PUBLICATION.- The foregoing Sentence has been given, read and published by the Honorable Magistrate-Judge who issues it on the day of the date, being constituted in public hearing, of all of which, I, the Secretary, attest.
