The European Court of Human Rights (ECHR) will examine the tumultuous judicial and administrative tangle surrounding the El Algarrobico hotel, the only reason why this mass has remained standing since it was erected in 2003 on a beach in Carboneras (Almería) and in the heart of the Cabo de Gata natural park. In a resolution of June 25, made public by Greenpeace this Tuesday, the ECHR indicates that it will examine the matter “as soon as possible”.
The judicial body of the Council of Europe, the highest interpreter of the European Convention on Human Rights, thus joins all the Spanish bodies (from the contentious courts to the Supreme Court) that have been examining the legality of the hotel since a judge paralyzed its construction in February 2006. The hotel has not been demolished despite the fact that it has accumulated more than fifty judicial resolutions, including several final decisions and several from the Supreme Court ordering it.
The contested intervention of Carboneras town hall
The environmental entity has addressed the ECHR with two complaints. On the one hand, the environmentalists consider that the courts unjustifiably delegate the effective application of judicial resolutions to the Carboneras City Council, which has the effect of emptying them of their content or delaying them. sine die in the face of the inability or resistance of the consistory to carry them out.
In 2016, the High Court of Andalusia (TSJA) declared that the land in El Algarrobico was not suitable for development. The Supreme Court confirmed this in April 2018. However, nothing concrete has been done to implement these rulings. The reason is that another Supreme Court ruling, this one from December 2022, warned that before demolition, the PGOU had to be amended (to classify the land as undevelopable) and that the building permit granted at the time had to be reviewed ex officio. And this process, which only the council can follow, remains unfinished.
“This resolution [de diciembre de 2022] “He says that for the decision that requires the modification of the PGOU to come into force, the city council must do so, and that as long as it does not comply, the decision has no effect,” Greenpeace lawyer José Ignacio Domínguez tells elDiario.es. “It is inconceivable: when a Supreme Court ruling modifies a decree, it remains modified, there is nothing to expect. But that’s it.
“The European Court of Human Rights has concluded that the legality of this decision must be investigated,” the environmental association said in a statement, explaining that it is “a fundamental principle of any state governed by the rule of law that final sentences that annul a general provision” of nature, such as the General Urban Plan (PGOU) of Carboneras, come into force from the day the decree is published. The alteration of this principle is “a very serious and unprecedented fact,” according to the environmentalists, who believe that Article 6.1 of the Convention on Human Rights could have been violated, which enshrines the right to an independent judge and effective judicial protection. Before appealing to the ECHR, the environmentalists requested clarification and appealed to the Constitutional Court for protection, to no avail.
“The fact that the Carboneras City Council has not complied with the aforementioned ruling of the Supreme Court of 2018 is not a reason to continue considering the land as developable,” reads the statement of facts of the trial, consulted through this channel. Today, with the interpretation of the Spanish courts and after the latest twists and turns of the plenary session of the Carboneras City Council, the land of El Algarrobico is once again developable.
Meanwhile, there have been legal doubts, rectifications, barely concealed delays and threats of a judicial fine against the former mayor for his resistance to complying with the court order, while the municipality fears that the demolition of the hotel will end up leading to a takeover of the developer, Azata del Sol, which continues to brandish the license granted in 1999 by the municipality of Cristóbal Fernández (PSOE) with the agreement, therefore, of the Junta de Andalucía.
Revocation of the reporting magistrate
In their letter to the ECHR, the environmentalists file another complaint tinged with suspicion, exposing the professional and personal ties of a judge of the TSJA and a judge on leave from the same court. After leaving the TSJA, the latter, Jorge Muñoz, returned to the El Algarrobico case, working as a lawyer at the Carboneras City Hall through the Martínez-Echevarría law firm.
Muñoz, who as a magistrate was the rapporteur of the ruling (from 2014) that upset the case by agreeing with the developer (later annulled by the Supreme Court), was hired in a discretionary manner in 2021 by former councilor José Luis Amérigo (PSOE). , nephew of former mayor Cristóbal Fernández). His intervention as the municipality’s lawyer did not allow the execution of the sentences declaring the hotel illegal. On the contrary, it made things muddier.
The claim of the environmentalists in Strasbourg recalls the passage of Muñoz from the TSJA to the defense of the party, and underlines that the judge María del Mar Jiménez Morera is the current rapporteur of the Chamber of the TSJA in charge of the case. Jiménez Morera also participated in the 2014 judgment that declared the land of El Algarrobico developable, the only one to have reached such a conclusion. “Jorge Muñoz defends the interests of the City Council of Carboneras before the same Chamber and Section of which he was a member and in addition the judge who resolves his writings is his former colleague of Chamber”, protest the environmentalists before the ECHR, to which they ask to “revoke the appointment” as rapporteur of the judge.
Nearly two decades in limbo
The hotel began construction in 2003 after obtaining a building permit, despite being located in an area protected by both the regulations of the Natural Park and the Coastal Law. The first legal proceedings against the building, which has 411 rooms, began in 2005, when Greenpeace, Ecologistas en Acción and Save Mojácar denounced these irregularities. In early 2006, a preventive stoppage of the works was obtained and, since then, the hotel has followed a legal course that reads like an administrative law manual, without a single brick having been moved.
“The admission of Greenpeace’s complaint before the ECHR marks the end of the journey through all possible judicial instances,” acknowledges the entity, which is satisfied with this step for the moment. “For the first time in the history of Greenpeace Spain, and after almost 20 years of fighting against the symbol of the mistreatment inflicted on the Spanish coast, the Strasbourg Court will investigate our complaint. They have been fighting from court to court for almost two decades and this decision sends a clear and strong message to those who continue to commit illegal acts, so that the ruin of Algarrobico does not disappear,” said María José Caballero, spokesperson for Greenpeace.
