The Public Prosecutor's Office considers "incongruent", "contradictory" and "erroneous" the indictment of the treasurer of the Arrecife City Council, Antonio Cabrera, and warns that this measure has "transcendental procedural consequences". These are some of the considerations that the Prosecutor's Office has expressed in the appeal against the latest order of the judge investigating the Montecarlo case, who decided to suspend the summons of the treasurer as a witness and call him as an accused.
According to the prosecutor in charge of the case, Ignacio Stampa, who initiated the investigation, Antonio Cabrera's indictment is based solely on an expert report prepared by a state auditor-intervener within this case, which has been "taken out of context" and "misinterpreted". In fact, the Prosecutor's Office explains that it requested the appearance of the expert "to explain the content and conclusions of his report", but has not "received a response to date" from the judge.
In addition, he states that this indictment "is totally incongruent with the actions of the investigating (judge) herself until the request of the accused José Montenlongo occurs". Specifically, he refers to a letter in which Montelongo's defense requested that the treasurer's statement as a witness be suspended, based on that expert report, and alleging that it attributes to him "the commission of several criminal conducts". "The accused should not be asked for a simple testimonial statement when it can be easily inferred from the proceedings that there is already suspicion against him of having participated in the commission of a punishable act," the letter stated, appealing to the "constitutional right to defense".
However, the prosecutor responds to this argument forcefully: "In that report, no action of the Treasury Department is mentioned even once, much less any treasurer, and therefore no criminal action," the Prosecutor's Office's appeal states, which considers that they have attributed to this report "a deliberately equivocal meaning" and taken it "completely out of context".
"Unjustified" Affirmation and Possible "Error"
In that expert report, which was requested by the Prosecutor's Office itself, the role played by each of the politicians and technicians who intervened in the payments and files under suspicion is analyzed. And in the case of the Arrecife treasurer, his name only appears in the last paragraph, with the partial conclusions of the report, placing him alongside the intervener as responsible for ordering the payments, and therefore as a possible responsible for crimes of prevarication and embezzlement.
However, throughout the development of the report, no detail is given of what the alleged participation of the treasurer consisted of, unlike what it does with the rest of the accused. Therefore, the prosecutor understands that this phrase is not "justified" and considers that it could be due to an "error of the expert". And that, among other things, he intended the expert to clarify with his appearance, which has not been agreed upon so far.
Antonio Cabrera was not the only treasurer
In addition, the prosecutor also questions the judge's change of criteria after receiving Montelongo's letter, and recalls that the expert report "was in the records since November 6, without the investigating judge having thought that what the party requested could be deduced from it".
In any case, and although he considers that the report is "taken out of context", the Prosecutor's Office also warns that not even in the conclusions of that opinion Antonio Cabrera is personally named, but "the treasurer". And as accredited by a report from the City Council secretary requested within the framework of the investigation, Cabrera was not the only treasurer of Arrecife during the period under investigation. Therefore, the prosecutor also questions that "no minor verification has been made, before indicting one of them", to accredit if "he would have had any punishable participation in relation to the facts investigated in this case".
"Erroneous Confusion" when comparing Arrecife and San Bartolomé
In addition to referring to the expert report, the judge also maintains in the order that during the investigation of the case, "it is becoming clear that for the commission of these crimes there is a connection between the Department of Finance, Intervention and Treasury, and that the criminal acts committed involve a certain implication of each of them; it is enough to remember that in the DP 2142/12 (that is, the separate piece of San Bartolomé), the Public Prosecutor's Office has proceeded to request the indictment of the treasurer of the San Bartolomé City Council", Luis Manuel Rodríguez Pérez.
Faced with this, the prosecutor responds that "it is procedurally inadmissible to mix facts under investigation in different proceedings" and dedicates several pages to explaining the differences between both procedures, and in the role played by both interveners. "We must understand that it supposes an erroneous confusion of the content of the actions", argues the Prosecutor's Office, which adds that it is forced to "explain the difference" in this letter.
Thus, the prosecutor recalls that the role of a treasurer consists of executing "the payment orders of the respective councilors, constituting said payment order a due act". However, in the case of San Bartolomé, the payments that are being investigated depend directly on the treasurer, and not on another councilorship or technician, since they are related to the collection of taxes.
400,000 euros under suspicion in San Bartolomé for tax collection
"In the case of San Bartolomé, unlike Arrecife, payments are made for five years, between 2002 and 2007, for an amount of approximately 400,000 euros under the two contracts illegally awarded to Progestril and from which a fictitious invoicing and the consequent collection of invoices derived, for a service that depended directly and exclusively on the municipal treasurer, consisting of the inspection and collaboration with the collection in matters of the Tax on Economic Activities and municipal fees", underlines the prosecutor, who adds that "said service was not fulfilled".
Therefore, he points out that in this case it was the treasurer "the competent technician to control that said service was provided, in addition to being the person who executed the illegal payment orders sponsored by him, and to control what Progestril discovered and collected for the City Council".
In addition, he highlights that in the report of the same expert on this separate piece of the case the illegalities allegedly committed by this treasurer are "detailed, described and analyzed incessantly", who in this case is also "the only one who held said position during all these years". And to continue providing the arguments that in the piece of San Bartolomé did lead him to request the indictment of the treasurer, the Prosecutor's Office explains that "there are indications that" the treasurer of San Bartolomé "traveled at the expense of the accused José Montesinos", that "the relationship with him was daily, constant and permanent, as the work of one depended on the work of the other", and that "the treasurer himself issued a report in 2009 contradicting himself with what he had protected until 2007, stating that there was no justification for the services paid to Protesgril".
The competences of a treasurer
In his appeal, to respond to another of the judge's arguments, the prosecutor also reproduces an article from the Legal Regime of Officials of the Local Administration with national qualification, in which it is explained exactly what the competences of a treasurer are.
"None of the functions of a municipal treasurer is related to contracts, presentation of invoices, verification of the reality of what has been provided, failure to comply with the rules of the procedure", "unless they are effectively directly involved with said Department", the prosecutor points out. That is, unless they are related to the "head of the collection services", which is precisely what is being investigated in San Bartolomé, and which are expressly included in the competences of a treasurer.
Summons of accused that have not been processed in months
Finally, the prosecutor concludes by recalling that "the few proceedings that have been agreed to date have all been requested by the Prosecutor's Office, except for the one that is now being appealed". In addition, he points out that "since March 29, many more have been requested, to which no response has been given, with the Public Prosecutor's Office having urged that the procedure be promoted and that the proceedings requested since March be carried out on different occasions". And among these proceedings is the summons of new people that the prosecutor asked to indict in the case, but who have not yet been called.
In response, the Public Prosecutor's Office adds that it has only had from the judge "a provision of December 14, justifying the lack of personal means that the writings are not provided, without explaining why the proceedings are not agreed upon". However, this order has been issued agreeing to an indictment that the Prosecutor's Office, "guarantor of legality and the rights of citizens, and governed in its action by the principle of impartiality", had already "rejected in a motivated, written, express and blunt manner said indictment".
