The Investigating Court Number 3 of Granadilla de Abona, through a car to which Mírame Televisión has had access, has agreed to the free dismissal and the file of the criminal case opened against the two activists who in June 2020 climbed two cranes to protest the construction of a hotel in the vicinity of La Tejita beach, in the south of Tenerife.
The judicial resolution, issued this Wednesday by Judge Arabia Díaz Carreiras, considers that there are no elements to continue the criminal investigation against the two activists for alleged crimes of coercion, usurpation and serious disobedience to authority, as requested by the promoter company, J. Viqueira Lago Construcciones SA.
The order, in addition to analyzing the criminal requirements of each of the crimes, weighs up the fundamental rights that protect the protest actions of the two denounced activists, Isora González and César Mesa, who remained for eleven days on the cranes who carried out work on the plot, between June 16 and 27, 2020.
In the midst of the protest, which acquired national repercussions, the Provincial Coastal Service of Tenerife agreed to the precautionary measure of paralyzing the works of the hotel, but the two activists continued perched on the cranes until on June 27, by means of a judicial order, their eviction was agreed to take their statement. Three days later, provisional release without bail was ordered for both.
The instruction continued pushed by the promoter, who at no time reversed its intention to criminalize the protest of the activists. Quite the contrary. The construction company requested several precautionary measures from the judge, which were not admitted. She first requested the provisional prison of those investigated or, in a subsidiary way, the prohibition that they could approach La Tejita. None prospered. Later, the company came to request access and dump the contents of one of the mobile phones that one of the two accused dropped while she was on the crane. She also poked at bone.
With the file of the case, although there is an appeal against the order, the criminal procedure for the company J. Viqueira Lago Construcciones SA is closed, but the judge recalls that “a different thing is the economic damage that could have been caused to the complainant”, whose claim “must be made by exercising the corresponding civil actions.” During the investigation, the promoter presented a budget that estimated the costs derived from blocking the cranes at 18,402 euros.
Legal foundations
The judge breaks down one by one the three crimes for which the two activists were being investigated to motivate the non-existence of criminal responsibility and the filing of the case. The first is the presumed coercion, a criminal type that requires a fundamental element: violence.
The judge acknowledges that “the term violence has been the subject of extensive interpretations” that have caused the “volatilization of its scope of application.” Discussed criteria that, for the magistrate, “not even applying them” could sanction the conduct of the activists within the article that the Penal Code dedicates to coercion.
The order concludes that “the reported facts do not reveal any type of action on things that alters their nature or form; no act of physical force is applied to any property, nor is any property damaged.” In the case of coercion, since the main element of the crime does not exist, the magistrate explains that “it is no longer necessary to weigh the exercise of the right to demonstrate and protest deployed by the persons investigated” in the criminal case.
The second of the crimes that is analyzed in the car is the possible serious disobedience to the authorities. A position that the promoter maintains given that there were agents of the Security Forces and Corps who tried to convince the activists, first through a loudspeaker and then after one of them climbed one of the cranes, to desist from their protest.
The magistrate considers that the words of the agents about the possible criminal consequences of the vindictive action, as required by the objective type of disobedience, were insufficient. But the judge clarifies that, “even if it were understood that this warning does constitute an express mandate, the element of gravity would be missing for it to be a crime.”
And this is how he explains it in the order: “The refusal of the activists to get off the crane cannot be classified as serious disobedience, since the fact of not attending to the police request would be, precisely, what would define the act of peaceful protest and liability carried out by the persons investigated”.
The judge brings to the car the protection granted by the right of assembly, which refers to the meeting of more than 20 people even though only two activists carried out the action, “which does not prevent the concurrent circumstances from being analyzed,” according to the resolution. The magistrate recalls the interpretation that the European Court of Human Rights has made in this regard, which considers that “the mere fact that there may be an illicit intention or conduct among the protesters, as long as it is not violent, is not enough to exclude the application of this fundamental right.
In the opinion of the person in charge of the Court of Instruction Number 3 of Granadilla de Abona, “the refusal of the activists to get off the crane constitutes the materialization of their peaceful protest.” An argument that is linked to another: “Pretending that said refusal constitutes a crime of serious disobedience would not only imply an affectation of the fundamental right, but also a limitation of its exercise.”
But the magistrate goes further and recalls that criminalizing the protest would have a “devastating discouragement and disincentive effect that it has both on the sanctioned people and on the community in the exercise of public freedom without which the very concept of constitutional democracy cannot be understood. ”.
Neither coercion, nor disobedience nor usurpation, the crime that punishes “the occupation, without violence or intimidation, of a property, dwelling or building of others that does not constitute a dwelling, or remains in them against the will of its owner”, according to the article 245.2 of the Penal Code.
The order clarifies that the protest action did not lead to the occupation of the entire property owned by the construction company, but “only one mobile element of it”, the cranes. A requirement that does not exist in the case analyzed and to which is added the lack of a vocation for permanence. The magistrate insists that these are structures “lacking any coverage or shelter, with risk to her own life and physical integrity, and with an absence of food or other elements necessary for the development of her life. All these elements show the temporary nature of the action”.
