Spanish judge gives go-ahead to probe into Caruana's legal action

by JOE GARCIA
A Spanish judge investigating the accusations concerning the New Flame and the chief minister Peter Caruana has given the go-ahead for the preliminaries to the legal action to take its course.

This question also raises serious considerations about Gibraltar's territorial waters and sovereign jurisdiction.

The legal action against the Chief Minister was submitted to a La Linea judge on 14 February by the mayor of La Linea Juan Carlos Juarez.

The complaint - known in Spain as a 'denuncia' - was sent on to a judge in San Roque given that another complaint about the New Flame had already been submitted to it by an ecology group. The two accusations have ended up in court No.3 in Algeciras which already had received an accusation from the Algeciras municipality against the owner of the ship and the Captain of the Port of Gibraltar.

It is the Algeciras judge which has now decided that the accusations received be the subject of investigation, which is a preliminary procedure to determine whether or not there is a case to answer. EVIDENCE

If the case goes forward, the normal practice is for the judge to call those accused to give evidence. If this happens, and Peter Caruana is named, it would place the Chief Minister in a very difficult political position.

Spanish ecologists are already saying that the decision to investigate indicates the likelihood of an offence. When submitting their own complaint to the courts, they urged that the case be heard by justices in Spain, and not in Gibraltar, as they consider that the jurisdiction over the waters where the New Flame went aground is Spanish.

WATERS

It is the firm and long-held view of Gibraltar and Britain that those waters are British sovereign waters and hence subject to the courts of Gibraltar.

If Mr Caruana is called to give evidence, he could not possibly attend, as he would be accepting Spanish jurisdiction over what the Gibraltar and UK governments have always considered to be British and not Spanish waters.

If he is called to attend, and he does not, the usual procedure would be for the Spanish court to issue a warrant for his arrest. If subsequently he were to set foot on Spanish soil, he would be liable to arrest.

It is possible that a European warrant for arrest might be issued from which would flow other considerations.

In such circumstances, it is difficult to see how he could attend any future meetings of the trilateral forum, unless this matter is cleared up.

The notion that the Spanish Government should put pressure on Juarez to make changes to the complaint he has submitted has provoked Sr Juarez to say at the weekend that he has no intention of doing so. He says he has nothing personal against Mr Caruana, but reckons that the New Flame affair has been deterimental to public health and this is the way the issue has to be tackled judicially, as

Mr Caruana has made himself responsible for it. He denied having been contacted by the Madrid government over it.

Meanwhile, the newly elected member of Congress for the Campo PP, Jose Ignacio Landaluce, said that new developments from Gibraltar about the New Flame lack any credibility as, time and again, the "government of the colony" has spoken of tackling the issue, which has ended in nothing. He says that the New Flame is in Spanish waters in the Bay of Algeciras.

The question of territorial waters is a political hot potato that looms large.

The official Spanish line is that the only waters pertaining to Gibraltar are those within the port, and point to the Treaty of Utrecht. FIRM LINE

But the British government has always taken the firm line that British territorial waters extend for 3 miles, and where there is an overlap as in the Bay of Gibraltar, a median line is used to divide the waters. Further, it is normal practice that the cession of any territory adjacent to the sea automatically brings with it sea access.

The long-standing British view is this: "It has long been the position that a cession of territory automatically carries the cession of the appurtenant territorial waters unless he contrary is specifically stated."




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