Friday, March 29

Fernández Vara “accepts and respects” the decision of the Supreme Court not to admit the appeal on Valdecañas


The owners of Marina Isla de Valdecañas have already announced that they will file an appeal for protection before the Constitutional Court (TC) before the scheduled period of 30 days

The president of the Junta de Extremadura, Guillermo Fernández Vara, assures that he “accepts and respects, as always” the decision of the Supreme Court (TS) not to admit the appeal filed by the regional Executive and the owners of the Isla Valdecañas Complex to avoid the demolition of the tourist complex built next to this reservoir in the province of Cáceres.

Fernández Vara has thus responded to the question from the media on this matter after yesterday TODAY announced that the TS has refused to annul the demolition of Valdecañas due to incompatibility of two judges.

The owners of Marina Isla de Valdecañas have already announced that they will file an appeal for protection before the Constitutional Court (TC) before the scheduled period of 30 days to defend the survival of the complex until the end, and with the argument that they acted “in good faith”. faith from the beginning» and who believe in its future.

In this way, the owners point it out after the dismissal of the incident of nullity presented by them after the sentence of the III Chamber of the Supreme Court in which the total demolition of Isla Valdecañas was decreed.

For his part, the head of the regional Executive has not revealed whether the Junta de Extremadura will go to the TC, although TODAY has already published that the decision to do so is firm, The president has limited himself to responding that he “accepts and respects” the decision of the court.

As this newspaper reported yesterday, the Supreme Court has dismissed the appeals requesting the annulment of its sentence for the total demolition of the complex. That ruling from last February ordered the total demolition of the resort, instead of the partial demolition (what was left half-built, respecting what was built) that the Superior Court of Justice of Extremadura (TSJEx) had decreed two years earlier.

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Ecologists in Action, for its part, assured in a statement that “the Board adds one more judicial setback to the long list of sentences of all the legal instances (Superior Court of Justice of Extremadura, Supreme and Constitutional) that have ruled one and another time the illegality of urbanization and the negligent action of the Government of Extremadura”. The conservationist organization adds that “indeed, the order reiterates that ‘The Administration, when approving the PIR Marina Isla de Valdecañas, acted as if the protection of the land did not exist and decided to transform the land urbanistically as if it were land without any protection. tried, adopting a decision outside the order or common way of acting. The administrative action was not in accordance with the Law, as the Junta de Extremadura did not act as the first and effective guarantor of environmental and urban planning'”.

Ecologists stresses that the car insists that “supposed socioeconomic benefits cannot prevail against the guarantee of general interests such as compliance with the law in environmental and urban matters.”

Among the arguments that included those incidents of annulment presented by the Board was the alleged incompatibility of Extremadura magistrate Wenceslao Olea Godoy and his partner in that instance Inés Huerta Garicano. About them it was alleged that the two had intervened before at other times of the procedure. But the Supreme Court has rejected this approach, as, on the other hand, several legal sources related to the case had already anticipated that it would happen.

In the case of Olea, it was argued that he had been part of the Contentious-Administrative Chamber of the TSJEx that in 2011 declared the Project of Regional Interest (PIR) that allowed the resort to be built illegal. And of Inés Huerta, her partiality was explained, the nullity incidents argued, because she was part of the room that in May of last year studied and decided to admit the appeal filed by Ecologists in Action against the ruling of the TSJEx that two years before had ordered the partial demolition.

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The reasons of the Supreme

In his car, the Supreme rejects that Olea incurred in incompatibility. And he does it “for reasons of substance and form.” Among the latter, he recalls the legal requirement that “the challenge (of a judge or magistrate) must be proposed as soon as the cause on which it is based is known, otherwise it will not be admitted for processing.” In other words, the presumed incompatibility should have been alleged months ago, within the period established after the parties were informed of who made up the Chamber that would analyze the matter. Nobody challenged then, that it was the opportune procedural moment. Doing it later is illegal, says the Supreme Court.

The Chamber argues that the disqualification of the judge should have been raised before, and that, however, there are no substantive reasons to address it

And as for the substantive reasons, he explains that “the status of a member of the Court that issues a judgment does not prevent him from ruling on its execution, on the contrary (…), precisely the fact of having issued the ruling object of execution guarantees knowledge of the scope of the same and its proper execution. And the Contentious-Administrative Chamber (fifth section) adds that “what the right to an impartial judge protects is that whoever has participated or has already ruled on the matter, in this case of the execution of a sentence, can be part of the jurisdictional body that reviews in another instance that previous pronouncement. “But this -he continues- is not the case, since the magistrate to whom the interested parties refer (Wenceslao Olea) has not had any intervention in the execution that is the subject of this appeal.” And he repeats similar reasons for the case of Inés Huerta.

the other arguments

In addition to the partiality of the two magistrates, the regional government and the homeowners cited other reasons that, in their opinion, represented a violation of the right to effective judicial protection. Among them, the distortion of the cassation appeal – that is, that it is not resolved as such, but as if it were another type of appeal, in this specific case an appeal – arbitrariness and various types of procedural inconsistency. They are complex legal concepts that address both formal and substantive issues, and which, according to those who used them, should lead to the annulment of the ruling ordering the demolition of the entire complex.

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After the decision of the Supreme Court to reject the nullity incidents, both the regional government and the owners of real estate in the complex open the way to appeal to the Constitutional Court. The two parties explained at the time that if the Supreme Court did not heed their proposals, as has happened, they would continue to appeal. After the Constitutional, they would have to go to the Court of Justice of the European Union.

However, on the roof of the Supreme Court there is still a ball with the name of Marina Isla Valdecañas. It is the decision review appeal in which the developer requests that the ruling that in 2020 declared the El Gordo PGM (General Municipal Plan) illegal be annulled, understanding that it is based on the erroneous argument that the complex occupies protected land, because according to the company, Valdecañas was never declared a ZEPA. It was not, argues the promoter, because there is no resolution of the Governing Council or publication in the Official Gazette of Extremadura that so states. The Junta de Extremadura admits that in its files there is no express resolution declaring the ZEPA, although there are regulations from the years 2012, 2015 and 2016 that affect that natural space. For its part, Ecologistas en Acción maintains that “there is no doubt that Valdecañas is a ZEPA”, since it was declared in 2003, when it was enough for the autonomous community to fill out the Standard Data Form and send it to the European Commission , and that the Board did.


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