The lawyer of train driver Francisco Garzón, one of the two convicted for 79 reckless homicides in the Alvia train accident that occurred in Angrois (Santiago) in July 2013, has appealed the sentence and requests the free acquittal of his client.
Lawyer Manuel Prieto has already presented the appeal, to which Europa Press had access, on a day when the deadline set by the president of Criminal Court Number 2 of Santiago, Elena Fernández Currás, who handed down the judgment in July has passed last.
The other convicted is Andrés Cortabitarte, the former security director of Adif, the public company responsible for ensuring road safety. The Prosecutor’s Office withdrew its charge against him at the last moment and has now also filed an appeal, a decision which adds “even more pain and frustration” to the Victims’ Platform.
For its part, Renfe has also appealed the judgment relating to the train accident and is seeking mitigation of damages and reparations for the train driver.
In its appeal, Garzón’s defense demands free acquittal, “with all favorable declarations, or alternatively considers that in all cases the facts constitute misconduct.”
In addition, it also requests that, otherwise, “in the alternative, it be considered highly qualified the allegations made regarding the application of mitigating circumstances modifying criminal liability, reducing the penalty imposed by two degrees in all its aspects, with the estimate of the rest of the sentence. reasons. »
Crimes that would be misdemeanors
Among the reasons, firstly, the appeal points to an “error in the assessment of the evidence” and denounces a “violation” of an article of the Constitution “due to the violation and non-application of the right to presumption of innocence, and the principle of indubio pro reo.
Lawyer Manuel Prieto believes that what the sentence establishes with regard to Adif “should have led to the free acquittal of Mr. Garzón Amo of the crimes of homicide and reckless professional injury for which he was accused, or at least, in all cases, be classified as an offense, in accordance with the Penal Code in force at the time of the facts, and currently decriminalized.
And, according to him, “the question was not whether it could happen but when – the derailment – this is the same conclusion reached by the judge”.
He adds, in this sense, that, “in accordance with national regulations, both in terms of occupational and railway safety, Adif and Renfe were guarantors of the occupational safety of workers in the category of train drivers”.
They were thus “required to control the risks created by their activity and that of third parties”. And as indicated: “there is no trace of the application of labor safety rules by those responsible for Adif and Renfe Operadora”.
“Adif did not take into account the human, the driver who will follow in his footsteps, in fact it was recognized during the trial that he does not value the human factor of the driving position, which is negligent behavior and dangerous for railway safety, as was confirmed and included in the judgment,” he underlines.
He also emphasizes that “the table of maximum speeds (CVM) issued by Adif was erroneous, no analysis and assessment of risks had been carried out, it did not indicate the reality of the line, it was impossible to comply with it because he had been prepared, and this is what creates a risk of excessive speed on the A Grandeira turn which is neither controlled nor mitigated.
Secondly, the lawyer denounces a “misapplication” of several articles of the Penal Code and an “offense for poor application” of other articles on the prevention of professional risks and railway safety.
“Adif did not legally and normatively export the risk of derailment due to the excessive speed of LAV082 to Renfe Operadora, it therefore did not accept said risk; If the railway company has not accepted this risk, this unaccepted risk, which belongs to Adif, cannot be transferred to the front-line railway worker, to the train driver, to Mr. Garzón Amo, who does not nor accept this risk, among others. other questions because “he has neither the capacity nor the competence to do so,” he explains.
In a third point, the appeal, which includes up to eight reasons, indicates that, in the alternative, if we consider that Garzón Amo is responsible “for a certain type of criminal responsibility, the facts would constitute a minor offense” .
The appeal of the prosecution to exonerate Cortabitarte
For his part, the Prosecutor’s appeal concerns “the error in the assessment of the evidence, but above all and fundamentally the violation of the substantive criminal provisions”.
Thus, the prosecution considers that the person in charge of Adif “did not commit any crime through recklessness”. According to him, in the sentence there is an inappropriate application of articles 5 (there is no punishment without intention or recklessness) 142 and 152 of the Penal Code in relation to Cortabitarte, based on the facts and the basis of the sentence.
On the other hand, the prosecution affirms that the sentence did not take into account the fact that the person who died after the accident “died for causes derived from the accident itself”, which would be the 80th victim. He attributes this to non-enforcement. of the crime established in article 142.1 (punishes death by gross negligence) of the Penal Code for the death a few days after the accident of one of the victims. Likewise, it indicates that the driver is the author of an offense of damage due to serious imprudence in this case (due to the abusive non-application of article 267).
During the trial, Mario Piñeiro – then prosecutor in the case currently assigned to his colleague Antonio Roma – argued in his closing arguments for the withdrawal of the accusation against Adif’s security manager.
More precisely, Piñeiro considered at the end of the trial that, “in his capacity as director of security, he did not violate the duty incumbent on him” and acted “in accordance with the procedures included in the management system” of the Adif, approved by the national government. » and with a methodology “based on European regulations”.
Thus, according to the final report of the public prosecutor’s office, the Orense-Santiago high-speed line, on which an Alvia train derailed in a section without an ‘ERTMS’ safety system due to a change of project, “was designed in accordance with the “technical standards” and in accordance with the “practical codes” of Adif.
The prosecutor also estimated that “a risk analysis was carried out which requires a file analyzing the security” of the line and that “the risks were considered tolerable”.
He in fact took up the arguments of the prosecution by emphasizing that “on other lines, the ‘Asfa’ system circulates at 200 km/h (…) and that the source of the risk, the significant change in speed , was not identified as a risk factor before this accident, then 400 other points were identified along the entire line of the general network.
