The Court of First Instance and instruction number 5 of Leganés has filed two complaints from relatives of the deceased in residences in Leganés in the first wave of the pandemic. The order argues that it is the pandemic that made the 29 people whose family members took legal action and “not the actions of the directors of the residences or the accused counselors.”
The complaint was directed against the management teams of several residences – DomusVi, Vitalia or Aralia – for the crimes of reckless homicide, reckless injuries, omission of the duty to help, degrading treatment and prevarication. The three political positions that the criminal action also involved in the beginning were excluded from this procedure by the Provincial Court of Madrid, legal sources have indicated.
The Madrid Court, in November 2020, in the order that confirmed the inadmissibility of the complaint by the Leganés court, recalled that the Supreme Court and the Civil and Criminal Chamber of the Madrid TSJ are competent for its investigation and prosecution, and not the investigating court.
Now, the judge dismisses in a car, to which Europa Press had access, the commission of the crimes of reckless homicide and reckless injuries “in each and every one of the cases, since it is said disease that produced the drastic, harmful result when it ended in death, and less painful when it came to people who managed to recover. ”
“It is the pandemic that haunts us, the one that made these people sick, and not the actions of the directors of the residences or the defendant counselors of the Community of Madrid, in terms of the action that they could have carried out from a administrative and / or governmental point of view to try to control it and minimize its impact, “says the judge.
The order mentions 22 resolutions that the magistrate has analyzed, but omits from the list the modification of the protocol that limited referring patients to hospitals if they were highly dependent or had cognitive impairment, as published by InfoLibre. The judge points out in the order that whether the protocols of the Community of Madrid were adequate or not is a “foreign matter” to the staff of the residences.
Regarding the omission of the duty to help, the magistrate recalls that at the time of the facts included in the complaint “the situation was one of absolute collapse of the health system, treatment of a new and unknown disease, with tools not yet tested and of those whose efficacy and massive contagion from nursing home health and care personnel were unknown, who put their own lives at risk to try to save as many people as possible “.
He insists, despite the fact that there were protocols to prevent the transfer of elderly people from residences to hospitals, that this situation cannot be ignored when analyzing this type of crime, since what is not required of a person is to provide assistance that does not it is in their hands and it far exceeds what is reasonable and morally required. ”
With regard to the defendants of a political nature, the resolution abounds in the same idea by clarifying that “no matter how much the complaint is insisted on that they did not act effectively or on time, we cannot forget that the lack of Protection was a lack at the state level, that it had to be bought urgently from other countries, that the market was collapsed and that the Spanish State did not guarantee the endowment “of epis either.
Regarding the crime of degrading treatment, “there is no indication of the fraud required by the Penal Code, when we speak of physical damage or death of persons” in the present case. Neither does the magistrate find in the complaint indications that point to the crime of prevarication as the case remains open at this time only with respect to those responsible for the nursing homes, who are neither authority nor public officials.