The judge currently investigating the "Unión" case, María Jesús Hernández Elvira, has decided on the provisional dismissal of the proceedings against the architect Carlos Morales, who was charged with an alleged crime against land management, for the construction of his house in Puerto Calero.
Thus, this separate piece of the "Unión" case will continue with only one defendant, the former mayor of Yaiza, José Francisco Reyes, who is accused of an alleged crime of urban planning prevarication in the granting of that license.
In her order, against which an appeal is possible, the judge orders that the proceedings continue through the abbreviated procedure. Thus, she gives the Prosecutor's Office ten days to request the opening of the oral trial, presenting the indictment against Reyes.
If the Prosecutor's Office does not appeal the judge's order, dated this Monday, March 4, Alexia of Greece's husband, Carlos Morales, will be out of this piece of the "Unión" case. However, the magistrate also orders that the proceedings be sent to the Agency for the Protection of the Urban and Natural Environment, so that it initiates a sanctioning procedure against Morales, considering that there have been "urban infractions", which could lead to the "demolition of what was illegally built".
Between crime and administrative infraction
In her order, the judge argues the dismissal of the criminal proceedings against Carlos Morales, detailing the limit that separates an administrative infraction from a crime. In this sense, she points out that "there is no doubt about the illegality of the construction" carried out by Morales, but adds that the works "do not meet the requirements of typicality required by the criminal type" for which he was charged.
"The Penal Code only punishes the execution of building works on non-developable land and the works executed, being clearly illegal, are carried out on land that has the classification of non-sectorized developable land," the judge points out.
The order refers to the statement made by the drafter of the new General Plan of Yaiza, Jorge Coderch, who was summoned as a witness in this case. In the Courts, Coderch argued that "the piece of land in question has no value to protect" and downplayed a report issued by the Government of the Canary Islands. It should be remembered that the new Yaiza Plan, pending approval, reclassifies the plot and authorizes construction.
For his part, another technician from the Government of the Canary Islands, Jesús Luna Ferrer, stated that "the legal situation of the land is complex". And it is that the old General Plan left that land as "urban reserve", although in the subsequent island planning it is contemplated as "rustic of territorial protection".
In any case, the judge insists that to be sanctioned criminally, it is not enough for the construction to be illegal, but that it must be "on land destined for roads, green areas, public domain assets or places that have, legally or administratively, recognized their landscape, ecological, artistic, historical or cultural value".
For this reason, she considers that it is in the administrative channel where the sanction should take place, and orders that the facts be transferred to the Apmun, so that it "proceeds to initiate a sanctioning procedure, aimed at restoring the infringed legal order".
Reyes acted "ignoring the most elementary rules"
Regarding José Francisco Reyes, the judge does consider that he incurred in an alleged crime of prevarication as mayor of Yaiza, by granting the licenses for that work knowing that he could not do so. In fact, in this case there were negative technical reports and, despite everything, Reyes granted the licenses on the basic project and on the execution project.
According to the order, "it is proven" that José Francisco Reyes acted "ignoring the most elementary administrative procedural rules", "violating the most basic rules of mandatory observance imposed by the applicable urban planning regulations" and "dispensing with the essential procedures in the granting of urban licenses", by "not having the prior legal reports required", "nor with the mandatory and binding report of compatibility with the PIOT to be issued by the Cabildo de Lanzarote".
Regarding the other charge that weighed on Carlos Morales, for alleged inducement to prevarication by the former mayor, the judge also considers that it has not been proven. In this sense, she points out that although Reyes "should not have issued the authorization decree", Morales complied with the "pertinent administrative procedures" to request the license.
