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The City Council argues that the calculation of the fine is not motivated, that no municipal representative was summoned and that a contradictory analysis was not made either

Benidorm accuses the CHJ of "deficiencies" in the taking of samples and the sanction for an unauthorized discharge to Amadorio and alleges "helplessness" in the file

21 January 2022
Benidorm acusa a la CHJ de “deficiencias” en la toma de muestras y la sanción por un vertido no autorizado al Amadorio y alega “indefensión” en el expediente

The Confederation opened the file as the consistory owns part of the discharge, not for authorizing it

Benidorm City Council has filed with the Júcar Hydrographic Confederation an appeal for reinstatement against the sanction of 6,639.70 euros imposed on December 13 by this body as a result of a punctual discharge without authorization that took place on August 27, 2020 to Amadorio River from the WWTP of La Vila Joiosa from the sanitation of several towns.

In the appeal presented, the City Council alleges, first of all, an "insufficient motivation" in the quantification of the damage caused since for the calculation of the amount of the sanction "the concepts and parameters used are not reported".

Thus, according to the Councilor for the Water Cycle, José Ramón González de Zárate, "neither the note regarding the proposal to open the sanctioning file nor the agreement to initiate the file nor the resolution provide a detailed reasoning for the calculation made, some whose concepts can be the object of contrast and contradiction”.

The councilor considers that this is a "generic and clearly insufficient justification to be able to exercise the right to defense and contradiction" and that "the duty to specify the quantification of the damage caused is not fulfilled" for which "an evident defenselessness is generated to this City Council by making the opportune contrast impossible”.

Based on the existing jurisprudence, the municipal resource understands that "the lack or defect of the motivation of the administrative act will constitute a formal requirement that invalidates the act". González de Zárate affirms in this sense that the appealed resolution "is contrary to law because neither the damages are motivated nor, consequently, neither is the sanction whose amount derives from the damages caused."

On the other hand, the appeal of the City Council also alludes to the deficiencies in the taking of samples by not having summoned a municipal representative or having made a sample available to the corporation to carry out a contradictory analysis.

The appeal states that a copy of the minutes should have been delivered to a representative of the Benidorm City Council, something that "does not appear" and that therefore "constitutes a formal vice of the procedure", according to the councilor for the Water Cycle.

In addition, the sampling must be carried out in the presence of a representative of the owner of the discharge and if this is not the case "it should be recorded in the minutes". González de Zárate has also specified that "the day, time and place of the sampling should have been notified to the City Council as soon as it is the owner of a part of the discharge, which was not done", for which "there is a clear infringement of what was established, since no representative of this City Council was given the opportunity to be present at the action”.

The municipal appeal concludes by noting that "it is clearly proven that no representative of the City Council was summoned and that, therefore, he could not attend the act of taking samples or express in said act what was convenient for him." As if that were not enough, he continues, “this City Council was also unable to obtain a sample to carry out contradictory analysis”, which “clearly affects the right of defense and contradiction” and causes “a situation of material defenselessness”.

Therefore, according to González de Zárate, the taking of samples carried out "cannot serve as proof against the City Council's presumption of innocence and constitutes an invalidating formal vice and determines the annulment of the eventual act."

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Corte voz 1 - González de Zárate
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