The Provincial Court has rejected nine of the ten appeals filed against the order of March 2020 that agreed to continue the proceedings against 17 investigated and 8 companies for alleged irregularities in the Escombreras desalination project, known as the ‘La Sal case’ . Section 2 only upheld the appeal of the Community, which is left as injured in the process and loses its initial status as subsidiary civil liability. There is no ordinary appeal against these resolutions.
In addition, the Court has notified a last order that dismisses the appeal filed by Ramón Luis Valcárcel against which he turned into an abbreviated procedure of the preliminary proceedings 2313/2019 of the Investigating Court 1 of Murcia or ‘La Sal II case’. The former president of the Community faces 11 and a half years in prison in the trial for the desalination plant. The Public Ministry claims 20 years of absolute disqualification and the instructor demands a bail of more than 74 million.
As the records recall, the first investigation focused on the members of the board of directors of the Public Water Entity and the Escombreras Desalination Plant Public Company, among them the former Minister of Agriculture and Water and president of the Entity, Antonio Cerdá, in what that the resolution calls “public part”; and the administrators or representatives of the company Hydro Managemet and the company Técnicas de Desalinización de Aguas (Tedagua), or “private party”. In addition to the commercial companies Hydro Management SL, Tedagua, Cobra Instalaciones y Servicios SA, Moncobra SA, Cobra Gestión de Infraestructuras SLU, Hidronostrum SA and Desaladora de Escombreras.
The Chamber recalls that the decision to dismiss or continue the procedure consists of “the indicative assessment of objective and subjective elements that justify prosecuting the accused, and not the problem of the origin of his acquittal or conviction, the exclusive object of the oral trial and of the sentence”.
Thus, responding to the allegations of lack of due motivation in the disputed resolution “due to the lack of due specification and individualization of the conducts”, the magistrates underline that “the disputed resolution contains an extensive and sufficient factual description of the different punishable acts , divided into ten sections, indicating the different factual issues addressed (…) and which includes the express personal reference of those who are concerned in them”. Descending, in the different appeals raised and individually for each appellant, to the specific actions carried out.
Community Resource
On the contrary, the Court does accept the appeal filed by the lawyer of the Autonomous Community of the Region of Murcia, on behalf of the same and the Escombreras Desalination entity, on the condition of subsidiary civil liability through the public entities involved in the project.
The Court points out that a large number of those investigated in this case for their alleged participation in the facts described “held relevant public responsibilities, at different levels, for carrying out administration and management tasks, both in the Public Water Entity, and in the entities Hidronostrum SA and Desaladora de Escombreras SA” and the assumption by the Community, after the extinction of the EPA, of the legal position held by them is clear -the magistrates explain in the resolution-.
However, the court emphasizes that “no other natural or legal person is seen as harmed in this case” and, therefore, with the right to restitution, reparation or compensation. For this reason, “it is inappropriate to maintain the status of subsidiary civil liability of the entities Hidronostrum SA and Desaladora de Escombreras SA, the latter having absorbed the former, through the entity Esamur and CARM.”
‘La Sal II Case’
For its part, section 2 of the Provincial Court has dismissed the appeal against the order of the Court of Investigation number 1 of Murcia, in which the instructor based on the indications made by the Provincial Court of Murcia in March 2022 that revoked the previous order of dismissal, proceeds to examine the data and evidence against Ramón Luis Valcárcel, “emphasizing the guarantor role, as the head of the Autonomous Community of the Region of Murcia (CARM), attributed to the person investigated.”
The resolution that is now being appealed, explains the order, has also accommodated the interpretative parameter previously set by the Court in its resolution of March, in which certain indications emerged that determined the revocation of the dismissal, “referring to the fact that given the amount of irregularities, knowledge by the then president of the Community and participation in the facts investigated could not be ruled out.
Thus, after recalling the nature of the order that is appealed, as an act of formal imputation “which is in no way a statement of proven facts” and that “for its issuance only sufficient evidence is required that the facts under investigation and on which the investigative proceedings have been carried out, could constitute a crime”, rejects each of the reasons alleged by the defense.
The Court highlights, however, that a large part of the allegations in the appeal filed does not combat the appealed order -neither an appeal for reform nor an order for transformation into an abbreviated procedure- but rather that most of the allegations refer to the Public Prosecutor, “to the appeal of the Prosecutor’s Office, to the criteria of imputation of the Public Prosecutor’s Office, to the conclusions reached by the Prosecutor’s Ministry, among others”, explain the magistrates analyzing these in detail below.
In the first place, the Court does not consider that this new lawsuit from which the investigative proceedings referred to in this appeal have arisen “is an improper procedural maneuver.” They emphasize that this new open case allows a differentiated prosecution since what is attributed to the defendant is an omissive conduct in relation to the design and materialization of the construction of the desalination plant, which as a whole constituted conduct that was not in accordance with the law.
Thus, recalling the recent judgment of the Supreme Court (TS) 106/2023 of February 16, they conclude that: “There is no procedural irregularity in the presentation of a new complaint by the Public Prosecutor regarding a person who had not been denounced or formally accused in the procedure followed before the Investigating Court 5 of Murcia, and that could not be due to the closure of the investigation due to the course of the procedural terms by decision of the Provincial Court, but with respect to which the possible criminal conduct denounced had not prescribed.”
Argument that they reinforce with the order of the Supreme Court of February 27, 2023, issued in Appeal 20920/2021, referring to the calculation of the beginning of the investigation period when there is a taxpayer and the case has already been initiated in the ordinary court before in the one that must instruct by reason of the appraisal, in which it is indicated: «the day of the beginning of the computation of the period indicated in article 324 of the LECRIM is that of the beginning of the investigation of a procedural object delimited in the complaint against a person , concrete and determined,»
Subsequently, regarding the allegation referring to the water situation of the Region of Murcia, the magistrates reiterate that “from the content of the proceedings carried out, neither the need nor the urgency for the public interest of providing the Region of Murcia with the resources necessary to meet the existing water demand at a time of special economic development in the Region, and even in the case of existing such water needs, there is no justification that the procedure used for it and its cost will be adjusted to law, to the There are alternative formulas.
In relation to the alleged null intervention of the ex-president, the magistrates maintain “that a million-dollar project whose water supply agreements for 26 municipalities were approved by the Governing Council, the appellant cannot allege, due to his position as president of the Autonomous Community, and the legal powers attributed to it (which are highlighted in the previous order of the Provincial Court) mere ignorance»
It also rules out the order that the future of the project was determined by the national economic crisis by indicating that “there are indications that the preconceived plan existed, and this is deduced from the abundant documentation collected in the records referred to in the initial appealed order, And on the basis of this roadmap, the different actions were articulated, some of them formally carried out on the same date, although their creators and participants predated or postdated them, according to convenience»
Finally, the Chamber rejects the allegation of confusion around the so-called Comfort Letter, understanding that “the absence of authorization to assume said guarantee by the General Intervention as well as by the Ministry of Finance forced to assume exaggerated financial risks , not backed by any guarantee related to the future supply of water to the Town Halls, nor by a mortgage guarantee, nor by the 49% of the rest of the private partners, who were separated from it». Emphasizing that “such was the importance of this guarantee, that on March 28, 2014, in the last Governing Council chaired by the appellant, said Council approved a transfer by the Autonomous Community to DESA to meet the payments to HM for an amount of 22,230,435.07 euros”.
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