After almost two decades and fifty judicial rulings, the skeleton of the Algarrobico hotel remains intact on the beach of Carboneras (Almería), in the Cabo de Gata Natural Park. The reason is the refusal of the City Council of this Almería municipality, which granted the license to build the complex in 2003, to comply with all the sentences that have confirmed its illegality (20, in total). Faced with this constant obstruction, the Superior Court of Justice of Andalusia (TSJA) this week gave the council a 10-day ultimatum to provide documentation proving that its General Urban Planning Plan includes the classification of “non-developable land with special protection.” ” of the area where the building stands, an obligation imposed in 2016 by the TSJA and ratified by the Supreme Court in 2018, which has not been executed in all this time. In parallel, this Friday the 28 Greenpeace activists who 10 years ago marked the building with a black dot in protest that it was still standing sat on the bench. The accusation, brought by the promoter Azata del Sur, asks each of them for a year in prison for the crime of disobedience.
In the 2018 ruling whose compliance the TSJA now demands, the Supreme Court confirmed another from the Andalusian high court in 2016 and forced the Carboneras City Council to classify the El Algarrobico area as non-developable land in its PGOU. A year earlier, the TS, also ratifying another TSJA ruling from 2016, established that the enclave is a protected, non-developable space, something that it had already declared in 2016. “But the thing is that in 2012 it was published in the Official Gazette of the Board a ruling from the TSJA that declared El Algarrobico as a protected space and that Carboneras did not appeal,” warns José Ignacio Domínguez, the lawyer for the environmental groups that have been fighting against this mass for two decades. In 2021, the TSJA gave one piece of advice: it forced Carboneras to initiate the ex officio review file of the license, but denied the possibility of demolishing the building as long as that title was not annulled.
“The City Council has a firm commitment to abide by the sentences,” said the mayor of Carboneras, Salvador Hernández, in a telephone conversation. The Ciudadanos councilor explains that his intention is that “in the plenary session in which the municipal Budgets are approved, the procedures for the ex officio review of the license will begin and a declaration will be made in which it is recognized that the lands are not developable. ”. That plenary session, according to Hernández, will have to wait for the lack of a general secretary in the consistory to be corrected, a procedure that, if the deadlines are met, would delay compliance with the pending sentences until June.
Until now, the Carboneras City Council – where socialists, independents and the PP have governed at this time, until a few weeks ago it was removed by a motion of censure presented by PSOE and Ciudadanos – has not complied with any of these judicial mandates. “It is an intolerable joke,” says Domínguez. It is the validity of the license that prevents the machines from entering to demolish this 21-story, 411-room mammoth, which is an icon of wild and speculative urbanism, despite the fact that these and many other rulings have confirmed that the mass is illegal for having been built within the Cabo de Gata Natural Park, on undeveloped land, and for being built 14 meters from the sea, violating the Coastal Law.
The last relevant ruling issued by the TS in 2022 establishes that, as long as the Carboneras City Council does not comply with the 2018 ruling that required it to modify its urban planning regulations, the land continues to be developable. “The City Council has two options: annul the license directly, as the 2021 ruling requires, or first modify the PGOU and then annul the license, as the TSJA has demanded this week, but it does nothing,” explains the lawyer. To circumvent this reluctance to review its PGOU ex officio – with the PP it was carried out in full, but the PSOE opposed it -, Greenpeace has decided to take this endless judicial tangle to the European Court of Human Rights. Last February, he presented an appeal against the Supreme Court ruling of 2022, alleging that a final ruling cannot be made subject to the will of a city council to comply with it and warning that, de facto, the PGOU could be considered annulled since 2012, when the ruling of the TSJA declared Algarrobico a protected space. “When a ruling modifies a general rule, such as the PGOU, and it is publicized, it is considered that it has already been modified,” maintains Greenpeaca’s lawyer.
The accused deny having done the graffiti
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Until now, as Domínguez acknowledges, the only judicial decision that has had real effect was the precautionary stoppage decreed by a first instance court in Almería in 2006. On February 23 of that year, any physical activity on the premises was paralyzed, and to move the judicial machinery. But the courts have not been the only front of the environmentalists – although in the end everything converges in them. Greenpeace has led dozens of actions to draw attention to the illegality of the hotel and the apathy of the administrations to erase it from the natural enclave.
One of them took place on May 11, 2014, when 28 activists pointed a black dot at the building that read “Ilegal Hotel.” This Friday, 10 years later, the trial began against all of them for crimes of damage and disobedience, at the request of the promoter, Azata del Sol. Although the Prosecutor’s Office requested the dismissal and filing of the case, the prosecution demands a prison sentence one year for each of them and a 24-month fine. During the first session, the defendants acknowledged that they participated in the protest, but that they were not part of the group of people who painted the graffiti and entered the building. Another line of defense has been to claim that what is in ruins cannot be damaged, Luis Berraquero, head of Greenpeace in Andalusia, explained to this newspaper.
Other options that the Board does not explore
As long as the City Council does not move, in theory neither can the central government nor the Andalusian Government, which in 2011 signed an agreement by which the former assumed the costs of the demolition and the latter the cost of restoring the area. . The Andalusian president, the popular Juan Manuel Moreno, has made the demolition of Algarrobico a priority to cement his profile as a defender of the environment, but this was evident with his support for the law to expand irrigation in Doñana. For this purpose he has reserved an item of just over one million euros in the budgets. “That is pure demagoguery, because the Board, if it wanted, could also promote its disappearance,” Domínguez points out.
This is what Berraquero conveyed this Thursday to the Minister of the Environment, Ramón Fernández-Pacheco, during a meeting in which they discussed the Algarrobico hotel. “This is a situation similar to that of Doñana, so many lost years are entailing a tremendous cost and proactive things must be done, good words or gestures are not enough to reserve a million euros,” Berraquero explains to this newspaper. The Andalusian Government has, according to what the activist told the counselor, two ways to do this.
On the one hand, execute the right of withdrawal over the Algarrobico lands that the Supreme Court recognized in 2016, again confirming another TSJA ruling from 2013. “This allows the Board to pay the amount that the buyer paid for the purchase of a land in the natural park,” explains Domínguez. The problem is that with this maneuver the administration acquires the property, but not the possession, which remains in the hands of Azata del Sol. “To do so, they would have to start a civil lawsuit, but the Board, despite having deposited the money The purchase, which is about 2.3 million euros, has done nothing,” he continues. The other way is to make use of expropriation that includes one of the star laws of the Moreno Executive, the Law to Promote the Sustainability of the Territory. “There is an article designed for moles like the Algarrobico built in a manifestly illegal manner, but it has not been implemented either,” explains Domínguez.
One of the reasons that the lawyer believes can justify all the City Council’s non-compliance is the fear of compensation, despite the fact that the National Court has reiterated on two occasions that Azata del Sur does not have the right to financial compensation because it knew of the illegality of the license. These rulings have been appealed to the Supreme Court – the appeals of both the City Council and the developer also explain so much time lost. These procedures are the ones that are still open, along with the execution of the 2018 ruling to modify the PGOU, which the TSJA now demands, the cancellation of the license, imposed by the TSJA in 2021 and an annulment of a threat to modify the PGOU, which was carried out by the previous municipal government of the PSOE in a plenary session convened in April 2023, just 48 hours after the Andalusian high court threatened the mayor with fines of 700 euros every 20 days if he did not comply with the sentences on Algarrobico . “It was annulled because it was stipulated that the lands were classified as protected by supervening effects, when a 2012 ruling had already declared that they had been protected since 1994. The TSJA annulled it and returned us to the starting box, but the Board now has once again requested that what has already been declared annulled be annulled,” says Domínguez.
It is the penultimate example of the bizarre judicial turns to try to demolish this environmental absurdity whose construction the promoters have not renounced. “The three cranes that are still standing are the symbol that they want to continue with the work,” warns Domínguez.
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