The head of the Court of First Instance and Instruction 3 of Moncada has decreed the provisional dismissal of the investigation opened into the fire that caused the death of nine elderly people in a nursing home in this town in January 2022, after ruling out the commission of crimes of reckless homicide by omission.
The magistrate concludes that the procedures carried out do not reveal “an objective violation of the duty of care with criminal relevance as an essential norm (serious or less serious recklessness) to guarantee the safety of the residents.”
The order, against which there is an appeal for reform and a subsidiary appeal, establishes that the company that manages the residence “complied with its maintenance obligations for the facilities” and carried out periodic reviews of the electrical and detection system through an external company. of fires.
From these analyzes quarterly reports were derived from which correct functioning was evident. Likewise, the center’s own staff carried out checks to carry out small repairs or replacements of existing elements in the rooms.
The fire started late on the night of January 18, 2022 in one of those rooms and caused the death, due to carbon monoxide poisoning resulting from the inhalation of smoke and gases, of nine residents, three men and six women. .
The flames, as the Civil Guard fire specialists confirmed in a technical report, originated from an electrical strip located behind the headboard of a bed and which was connected to the electrical panel located behind a nightstand.
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According to the researchers, this power strip registered a meltdown due to the deterioration in the insulation of a section of the cable, a deterioration that could come from a specific crushing by the nightstand or the bed itself, during cleaning or maintenance work at a time. indeterminate.
The judge maintains that the fire could not be foreseen because there is no indication that this state of deterioration of the cable “was visible” or that it was detectable “with the diligence required to be able to understand the omission as unjustifiable and attribute the harmful consequences.”
Along these lines – he argues, after citing the jurisprudence of the Supreme Court – “not every breach can be considered criminally sanctionable since behavior with absolute diligence that excludes all risks cannot be required, but rather it must be a breach that is unjustifiable and significant. , serious or less serious, so that the result was probable, and therefore, foreseeable.”
Furthermore, this crime must be attributed to a specific natural person and cannot be attributed to a legal entity, and during the investigation of the case “no indications of criminality against a specific person have been evidenced,” the head of the court specifies.
Regarding the evacuation of the inmates, it points out that the employees who were working that night – a nurse, two nursing assistants and a cleaner – cannot be attributed any contribution “to the increase in the sphere of danger”, since they adjusted to the planned self-protection plan.
The judge also recalls in her resolution that the provisional dismissal of the proceedings “does not leave defenseless the party that considers itself harmed in its rights and legitimate expectations”, since it can resort to civil proceedings, to whose actions the order expressly reserves the right.
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