The National Court confirms the acquittal of the leadership of Caixanova for the operations with the promoter Promalar

Understands that the crime of unfair administration is prescribed and that misappropriation cannot be proven

MADRID, 22 Dic. (EUROPA PRESS) -

The National Court has confirmed the acquittal of the ex-capula of the now extinct Caixanova, including its president Julio Fernández Gayoso, for a series of credit operations with the promoter Promalar between 2005 and 2010.

The Appeals Chamber of the National Court, in a ruling collected by Europa Press, thus dismisses the appeal filed by the State Attorney on behalf of the Bank Restructuring Fund (FROB), to which the Prosecutor's Office and ABANCA joined, against the acquittal issued on July 13 by the First Section of the Hearing.

The case studied, among others, a mortgage loan of 60 million and a credit policy of another 60 million for the promoter in 2005, another mortgage loan of 9.7 million in 2007 and a credit policy of 5 million in 2009 .

That first resolution, which is now ratified, agreed to acquit the ten defendants of the crimes of unfair administration and misappropriation, including Gayoso, the former CEOs of Caixanova Gregorio Gorriarán and José Luis Pego, as well as the administrator of Promalar SL Juan Lago Pérez.

Regarding the first of the crimes, that of unfair administration, the court maintains that it is prescribed because, despite the fact that there were up to five banking operations between 2005 and 2010, there is a "criminal unit" and, therefore, the possible prescription must be analyzed "in a joint".

In addition, it focuses on the fact that during the trial a conviction was requested for a continued crime of unfair administration and not a crime aggravated by the double concurrence of notorious seriousness and damage to a generality of people, "as is now claimed in the appeal for the first time time".

For the court, this is a "prohibited issue" because it prevents judicial protection in the first instance, since pronouncements on issues not raised in the trial of instance cannot be appealed.

"It is not possible to interpret, except for the first time in the process of appeal in the appeal phase, and against the defendant, the sentence, in the abstract, with all the punitive increases that have not been specifically requested, such as, for example, in the case of death, it is not possible to calculate the term of its prescription resorting to the murder when it has been accused solely and definitively for homicide", exposes the Chamber.

In short, the Chamber says that the facts are prescribed because between the date of the fact that marks the beginning of its computation, June 30, 2010, and that of the initiation of this criminal proceeding, November 16, 2017, "passed more than the indicated 5 years".

Regarding the crime of misappropriation, the Chamber confirms what was already included in the sentence, that "there is no externalized proof of the existence of a preconceived plan hatched between the accused of the senior management of Caixanova and that of the construction company Promalar SL to distract money for your benefit.

Likewise, they consider that "the Promoter was not financed, positioning it in the requalification of land -because it was within the corporate purpose of Caixanova-, nor were the operations carried out knowing that the General Urban Planning Plan of Cangas was not going to thrive".

"Not even old friends of Julio Gayoso in Caixanova (Messrs. Alonso and García del Valle, through Mr. Lago and Promalar SL) were helped to refloat and acquire the cannery Bernardo Alfageme SA, since there is no evidence that allows affirm that Caixanova's decision-making bodies -Delegate Committee and Board of Directors- were concealed relevant data that concealed the real situation", they add.

Thus, he understands that "there is no proof that the defendants knew and wanted not to return what was lent to them" because initially it was not impossible to return it, and that there was no will to "evade the expectations" of returning the money lent.

In addition, he insists that, due to the testimony of witnesses who were middle managers of the box, "they did not undergo the order to make up" the evaluations or to pass off the required guarantees as sufficient.