The Provincial Court's order that maintains the precautionary closure of Stratvs and condemns it to pay the costs of the appeal not only speaks harshly of this facility, but also of the defense raised by the property's lawyer, Felipe Fernández Camero.
The Sixth Section of the Court shows on several occasions its "surprise" at the defense's allegations, stressing that the lawyer raised issues that had nothing to do with the appeal, but said nothing to refute the alleged illegalities of the winery and dedicated only "half a page" to discussing the substantive issue that was raised.
In its order, the Court questions that the defense used "procedural and constitutional arguments" that have nothing to do with the resolution it was challenging, that is, the order that in December ordered the precautionary closure of the winery. A precautionary measure "whose substantive reasoning is not even discussed with more extension than half a page, which surprises this Court."
The defense "does not even discuss" the "urban irregularities"
The Provincial Court does address the substance of the matter in its order, in which it highlights the "amount of rational indications of criminality" that exist in this case, and that justify the precautionary closure of the winery. Thus, although the main reason for the closure is the environmental risk, which is one of the crimes being investigated, it also highlights that several "urban irregularities" have been verified.
Drawing on some of the reports in the case file, the Court recalls that in 2005 it was already warned "by the Cabildo of Lanzarote that the use of the winery on that land is not permitted." In addition, it refers to several reports from Apmun and in particular to one of them, "where multiple urban irregularities are verified to which the appellant gives no explanation in his appeal. What's more, they are not even discussed."
Regarding the possible polluting discharges, which were detected in 2008 by the Cabildo and despite this the winery was given a provisional authorization to continue operating and was never supervised again, the Court stresses that since that date Juan Francisco Rosa "has not complied with the legal requirements in this matter, and even less with the commitment" he assumed "before the provisional authorization."
"What surprises this Court is the scarcity of allegations on the merits made by the appellant, because if it meets the legal, administrative requirements for the exercise of such activity, and has complied with what it was obliged to do since 2008, that is, to carry out a hydrogeological study and install a treatment plant, it would be enough to fix it and accredit it to achieve the end of the precautionary measure," he says.
And it insists that what is being discussed in this case and in this appeal is whether or not this facility complies with the law and whether it poses a risk to the environment, and not the possible economic damage that this closure may cause to the owner of the winery. "This economic damage is not caused by the precautionary measure, but by the irregularities that have been verified and are being the subject of a criminal process," he affirms in response to the defense's allegations.
"Starts from an erroneous assumption from a legal point of view"
Regarding the content of the appeal filed by Juan Francisco Rosa's lawyer, the Court points out that "it is limited to attacking a resolution that is not the resolution that agrees to the precautionary measure that is being challenged, but rather it is about arguments against a previous order, of December 4, 2013, where the appellant BTL Lanzarote itself is charged."
It should be recalled that a few weeks before the precautionary closure of the winery was agreed, the judge investigating the case decided to also charge the company that owns Stratvs, BTL Lanzarote. And Felipe Fernández Camero tried to link the precautionary closure with the charging of the company, dedicating himself to questioning the latter.
"The appellant starts from an erroneous assumption from a legal point of view, since he insists in his appeal as if it were the Gordian knot of the matter, that the charging of BTL is a prior requirement for the adoption of the precautionary measure. And it is not so," the Court argues in this regard.
In addition, he reminds him that it would not even be necessary for there to be a charging to adopt a precautionary measure. "From the first moment of the birth of a criminal process, precautionary measures can be adopted. But in this case, to make matters worse, the judge ad quo adopts the precautionary measure when she has already gathered a large amount of circumstantial and/or evidentiary material on the existence of several crimes that can be charged to BTL Lanzarote or Juan Francisco Rosa Marrero," the order stresses.
The precautionary closure that has now been supported by the Provincial Court was agreed in December 2013 by the judge of the Court of Instruction Number 5, Silvia Muñoz, in response to the request made by a member of the Negrín family, who has appeared as a victim in the case, since he maintains that the winery was built on land owned by him. The private prosecution of Urban Transparency and the Public Prosecutor's Office also supported that request for closure, as well as the lawyer of one of the defendants, who is a technician of the Cabildo and is represented by the lawyer of the Corporation.
During that hearing held last December in Arrecife, the prosecutor Ignacio Stampa stated that in the case of Stratvs "reality surpasses fiction, in the sense that it is an authentic and permanent deception during the last 15 years," in light of all the reports and documents that have been known during the investigation. And among other things, he stated that the fact that it remained open was "a challenge to the Administration of Justice."
