The events surrounding the seizure of the Montaña Roja desalination plant "reveal clear indications of injustice and the spurious use of a precautionary measure", as well as "alleged crimes". This is what the Sixth Section of the Provincial Court of Las Palmas maintains in an order dated June 23, in which it agrees with Club Lanzarote and orders the criminal complaint filed by the company for alleged crimes of malfeasance and coercion to be processed.
The complaint was filed against the president of the Cabildo and the Island Water Council, Pedro San Ginés, against the manager of that Council, José Juan Hernández Duchemín, and against the manager of the Water Consortium, Domingo Pérez Callero. And although it was dismissed on October 20 by the Court of Instruction Number 2 of Arrecife, now the Court has upheld an appeal by Club Lanzarote and has annulled that order of the Court, ordering that the facts be investigated.
In its resolution, the Provincial Court defines up to two "presumably criminal" acts by the people who authorized (San Ginés and Duchemín) and executed (Pérez Callero) that seizure last September. These acts are the same ones that have led the Superior Court of Justice of the Canary Islands, in this case in administrative litigation, to adopt precautionary measures in a judgment issued on June 17 in which it annuls that seizure, as La Voz de Lanzarote already revealed this Thursday. Now, apart from that contentious procedure, the criminal investigation will also continue its course.
"They forced the entrance and forced locks"
Among other things, the Court sees a "presumably criminal" act in the way that seizure was executed, entering the plant without a court order. In this regard, it recalls that up to two different laws establish that a court order is necessary to authorize "entry into homes, as well as into other buildings or places whose access requires the consent of its owner, when appropriate for the forced execution of acts of the administration".
However, in the seizure of the Montaña Roja desalination plant, the Island Water Council accessed the facilities without that court order and without authorization from the company. In its complaint, Club Lanzarote maintains that the manager of the Consortium, Domingo Pérez Callero, the lawyer of the Island Water Council and "unidentified agents" of the Local Police of Yaiza "appeared at the facilities" of the desalination plant and "despite being warned of the illegality of their action, lacking judicial authorization, they entered the facilities forcing their entrance, forcing their locks, subsequently changing the cylinders of the entrance doors to the facilities, which were taken over by the entity Canal Gestión Lanzarote, using the de facto route violently on things".
Precautionary seizure for three minor offenses and one less serious
The decision to seize the desalination plant was adopted by the president, Pedro San Ginés, in a resolution signed on September 17. In that resolution, he agreed to initiate a sanctioning procedure against Club Lanzarote for three minor offenses and one less serious and proposed the imposition of sanctions, with respective fines of 7,800 euros in total. "You cannot deprive an owner of the possession and exploitation of facilities of very high value for the commission of (alleged) minor offenses and one less serious," the company argued in its complaint, in which it pointed out that, in any case, what could have been agreed is a precautionary seizure for the amount to which "in the worst case" the fine would amount.
Therefore, he concluded that San Ginés issued "an arbitrary resolution knowing its injustice, whose purpose "was none other than to appropriate the private facilities" of Club Lanzarote, with a "disguised expropriation", to deliver them to Canal Gestión. "The seizure does not have a minimally acceptable explanation in law and is based on facts whose falsehood was known by the author himself. Its legal explanation does not exist, it is the product of the will of the one who issues it," the company insisted in its complaint.
On this point, the Provincial Court recalls that the law contemplates the application of precautionary measures "only for the purpose of guaranteeing the effectiveness of the resolution that concludes the file", so it considers that "in attention to the administrative infractions charged, the payment of 7,600 euros", supposes an "apparent deviation from the purpose of the precautionary measure".
The Court considers San Ginés' motivation "surprising"
On the other hand, the Court considers it "surprising" that "among the antecedents of the sanction, and therefore of the measure" agreed by San Ginés, reference is made to the fact that the extension for the use of these plants had not been authorized, when in that same resolution "it is pointed out that the authorization has been denied by administrative silence". That is, that Club Lanzarote requested an extension of the authorization in 2012 when the eight years of validity of the permit were completed, and the administration did not respond.
"However much the meaning of silence is negative, it is no less true that the Administration is obliged to resolve", the Court argues in this regard, which again refers to the laws that oblige it to do so. Therefore, it considers that "hiding the absence of authorization in a prior breach does not seem acceptable". In addition, it adds that the Island Water Council cannot argue that this denial by silence was firm when the plant was seized, since "in the absence of an express act, the six-month period to appeal in contentious proceedings has not expired. Moreover, it has not even started," he adds.
On this point, Club Lanzarote also argues in its complaint that although the authorization it had was for eight years, the permit also established that it would be valid for that period "or until the supply network of the Consortium or Inalsa in that area came into service". In any case, he affirms that "acting diligently" he also requested that extension, but "has not had a response to date". And in his opinion, this "is only explained by the interested attitude of the Island Water Council that, knowing that it has to grant the authorization because there is no public supply network to the Montaña Roja urbanization, remains silent with the intention that the Council itself, through the concessionaire company Canal Gestión Lanzarote, takes care of exploiting the desalination and purification plant and the private supply network of Club Lanzarote".
The excuse of the alleged shortage
To all this, the Provincial Court adds that the decree signed by San Ginés also "does not indicate to what extent the seizure can alleviate the possible shortage" with which he justifies this decision. In fact, that is one of the points that Club Lanzarote insists on in its complaint, since it maintains that at no time were there problems to supply water to the residents of Montaña Roja. In addition, it affirms that the circumstances when the seizure occurred "were the same as those that have been occurring since 1988", when as promoter of this urbanization it began to take charge of the production of water to supply the area, until the Partial Plan was received by the City Council of Yaiza (something that to this day has not yet happened).
Therefore, he considers that if what the Water Council intended was "to end the private distribution of water and serve the urbanization itself", what it should have done is "undertake the necessary investment in treatment plants and its own distribution network to serve the area", or initiate an expropriation procedure, "after a legal declaration of the public utility of its measure, with the appropriate procedures, including a hearing with the interested party and, of course, with payment of a fair price".
However, not only was this procedure not initiated, but, as the Provincial Court underlines in its order, not even the due requirements had been made to the company to justify this decision. "Only one is recorded in 2013, in the same way that only one complaint is recorded that accounts for a possible shortage (actually of higher prices)," the order specifies.
These and other elements, including the speed with which this measure was adopted and executed, "considered in isolation do not determine the existence of a possible arbitrary resolution", the Court maintains. However, it adds that "considered together they do reveal clear indications of this injustice and the spurious use of a precautionary measure". In addition, it adds to this the "other presumably criminal act", that is, the occupation of the plant without a court order. Therefore, it considers the inadmissibility of the complaint "hasty" and orders that it be admitted for processing and duly investigated.
