The Provincial Court of Las Palmas has annulled one of the convictions against the former secretary of the Yaiza City Council, Vicente Bartolomé Fuentes, and against the former surveyor of the Technical Office Pablo Carrasco, considering that the Criminal Court Number 1 of Arrecife did not adequately justify the ruling.
Thus, although it accepts all the "proven facts" in that sentence and points out that both technicians issued reports against the law, the Court acquits Bartolomé Fuentes and Carrasco, who had been sentenced to four months in prison and two years and one month of disqualification for a continued crime of urban planning prevarication, for issuing favorable reports for the granting of licenses to build single-family homes on rustic land in Femés. In one of the cases, the beneficiary of the license was the brother of the then mayor, José Francisco Reyes.
In the new ruling, dated October 29, the First Section of the Provincial Court dedicates almost 60 pages to justify its resolution. And in most of the sentence, it focuses on dismantling the allegations of the accused, as well as questioning their attitude and their arguments. It even goes so far as to say that "actions such as those submitted to the consideration of this Chamber are those that have inflicted irreparable damage to the territory, protected by an arbitrary conception of the powers attributed to the Local Administration, which is ultimately the one that has decided, interpreting the current legality in a capricious way, the ordering of its own territory, acting in the end as if it were an independent State".
However, the Court has had to admit one of the reasons for the appeal, referring to the wording of the "legal grounds" section of the first instance judgment, issued in November 2011. The problem is based on the fact that for the crime of prevarication to exist, it is not enough to execute an illegal or unjust act, but it must also be done "knowingly". And although in the "proven facts", the judge did point out that there was that awareness on the part of the technicians, when justifying the ruling he did not express it with that forcefulness.
"Full knowledge" of a "possibility"
Specifically, the judge of first instance pointed out that the accused issued reports "with full knowledge of the possibility that their content could be in frontal opposition to the urban planning legislation applicable to the case", but the Court emphasizes that "full knowledge of a possibility is not equivalent to total knowledge of the flagrant contravention", which would be the necessary requirement for the conviction. In addition, it questions that the judge even "reproaches lack of prudence" in the issuance of those reports, when simple imprudence would not imply the commission of a crime of prevarication either.
In any case, the First Section of the Provincial Court makes its doubts clear. In fact, it points out that "it can be argued, as the Public Prosecutor legitimately does, that the accused committed the crime object of conviction in the instance", analyzing "the behavior of the accused, their technical-legal qualification, the experience in the position, the circumstances surrounding the issuance of the reports, and the content of these", but adds that "it is not up to this Chamber to make a probative assessment in the opposite direction to that reasoned by the Trial Judge, when this is to the detriment of the accused".
That is to say, although it emphasizes that with the same elements provided during the trial, it could have been concluded that both technicians issued reports "knowingly" of their illegality, since the judge did not point it out in the justification of his sentence, this has to be annulled, since in the face of an appeal it is not possible to make a new interpretation of the facts.
Another conviction by this same Section of the Court
In this last sentence, the First Section of the Provincial Court also recalls that, for very similar facts, it itself convicted these two technicians of urban planning prevarication, in this case for reporting favorably on the licenses to build nine chalets located on a plot on the outskirts of Las Breñas. In fact, that sentence has already been ratified by the Supreme Court and is already final, which forced Bartolomé Fuentes and Pablo Carrasco to be removed from their positions in the City Council.
The Court recalls that in that case, "it was concluded that effectively, both defendants were fully aware that the reports they issued were flagrantly contrary to urban planning regulations, acting with full knowledge of this and with the purpose precisely of promoting the alteration of the legal asset protected by the criminal law", and "this was literally stated" in the sentence. However, this was not the case in the case of this one issued by the Criminal Court Number 1 of Arrecife, which has now had to be annulled.
"Merely illustrative" reports
Throughout almost 60 pages, the Court also responds one by one to the grounds of appeal put forward by the defenses. Among them, that the reports issued by Vicente Bartolomé Fuentes were not legal but "merely illustrative". In this regard, the Court responds that "being Secretary of the City Council, he was perfectly aware that the viability of the license finally granted –and which he also signs- required, in addition to the technical report, the legal report, and if he voluntarily assumed the issuance of the latter, it is clear, evident and obvious that it does have legal relevance", "no matter how much the appellant wants to insist on his particular point of view".
In addition, it also reproaches that his defense cited "numerous judgments of the Contentious-Administrative Chamber that conclude in the little or no legal quality of the reports" issued by Bartolomé Fuentes. According to the Court, "this not only does not imply that the appellant has not done anything irregular, but quite the contrary".
In fact, it points out that "with his more than defective procedure, passing off –appearing in short- the issuance of legal reports that he knows are not going to be answered in the administrative field in which he acts, and much less by the Mayor", Vicente Bartolomé Fuentes "has promoted the granting of urban planning licenses in clear contravention of urban planning regulations, managing to consolidate legal situations created with an appearance of regularity, having the support exclusively of the Local Administration, behind the backs of the supramunicipal bodies legally contemplated to control urban development, in such a way that in the worst case, that there is a complaint by the APMUN of the Government of the Canary Islands, by the Cabildo or by the SEPRONA, it is necessary to go to the contentious jurisdiction, which when it resolves finds a consolidated situation that affects citizens who were building under the protection of the licenses granted, which has finally led to the adaptation of the General Plans to these consolidated situations breaking finally the interest that protects the criminal law, which is none other than the adequate ordering of the territory".