The Court number 41 of Madrid has given the reason, in first instance, to the heirs of the dictator Francisco Franco on the property of the statues of Mestre Mateo, Isaac and Abraham, which was claimed by the City Council of Santiago de Compostela.
Thus, in the judicial ruling, dated this Friday 8 and to which Europa Press has had access, Judge Adelaida Medrano Aranguren has rejected "in its entirety" the lawsuit filed by the City of Santiago against the heirs of the Franco – Maria del Carmen, Jaime Felipe, María Aránzazu, José Cristóbal, María del Mar and María de la O Martínez-Bordiu Franco – and against the company Pristina SL.
In the ruling, the judge considers that the lawsuit filed "does not fully identify" the statues and does not "prove if possession has existed after the signature of the deed", which, in his opinion, is necessary to prove his public use.
In this sense, the ruling recalls that the fact that the statues were ascribed after their acquisition for public use it is "determinant", since it would make the claim "imprescriptible". However, the judge considers, "this extreme has not been proven even in a circumstantial manner".
"It is understandable that, after 63 years of passivity of the City Council When it comes to claiming what it considers to be its own, the argument of its nature as imprescriptible public domain assets is the only one of those that can legally sustain this claim action, as a way to avoid the consequences that the passage of time causes in the acquisition of rights, "the ruling indicates.
Physical possession of the statues
In her argument, the judge refers to the documentation provided by the City of Santiago to ask why there is no reference to the pieces beyond the public deed of acquisition of June 4, 1948. "There is no documentary evidence of the reception of the statues after the writing, let alone the location that the cited ones were given if they had been received, "he says.
Thus, it refers to the existence of Subsequent municipal agreements on the use and location of other statues acquired at the same time, but not of these, and questions the arguments of the experts provided by the City Council on the location of the sculptures in the Pazo de Raxoi based on "alleged manifestations of elderly people."
"It is strange that both scholars have been able to reach their knowledge about the location of the statues by the same means, that is, through verbal manifestations of people who do not identify ", criticizes.
These issues, as well as the fact that the "municipal inventory" where these pieces should appear, is not provided, "prevents this body from having proven that the statues were actually received by the City Council and that they were a public property for being attached to a public service. "
It calls into question the identification
However, the judge goes further in her ruling and puts in doubt the own identification of the pieces, that is, that those in the possession of the Franco family are those to which the reports of the acquisition deed refer.
Among other issues, he mentions that there is "a marked confusion regarding the identification" of the pieces, as well as the number and characteristics of the sculptures that were removed from the façade of the Portico de la Gloria.
The judge indicates that in the Expert reports prior to the acquisition, both "disagree" on the description of the pieces and that make reference to that one of the pieces is "fragmented". "At all times, the two statues claimed by the city council are described as statues not fragmented, if not complete, with the natural deterioration of their age," which "increases the confusion" for the judge. The claim to identify these statues as those in the possession of the Franco is "a manifest temerity", highlights the ruling.
Taking into account these circumstances, the judge considers that this case can not be considered imprescriptible. When older, consider that the circumstances of "possession and time" have occurred for the "usucapión" of the pieces by the Franco, that is, its possession through the passage of time.
The Franco family, collects, was required and gave the pieces at times to make exhibitions "as holders of property rights", a possession that "has been public, peaceful and not interrupted", compared to "42 years of evident passivity by part of the City Council ".
For this system of appropriation, recalls the court, "only six years of possession are needed" in the determined conditions. "In our case, at least 42 years would have passed, if we look at the political circumstances that the plaintiff cites, and 63 years in another case, with what the acquisition by usucapion would have been consummated and the vindicating action it would have been prescribed, "he concludes.
The City Council of Santiago will appeal
The City Council of Compostela, which in this demand, promoted by the Compostela regidor, has the unanimous support of political organizations, already anticipated that the judicial journey would last until the end, but hoped that the first step would be positive. Now he will appeal to the Provincial Court of Madrid, although it is foreseeable that finally the possession of the statues will end up by ruling in the Supreme Court.
In a first reading, municipal sources confess to Europa Press that it has caught their attention In just one week a judicial decision has been issued on a question that they consider "complex" and of "draft" and have advanced, in any case, that appeal to all aspects that the judge has dismissed.
One of the lines that will defend the City Council will be the accreditation, with the documents of Count Ximonde, that the statues belonged to the Consistory of Compostela when the Franco family took them. In addition, they will emphasize that in their own Declaration of Cultural Interest (BIC) made by the Xunta, "Maximum authority" of Historical Heritage, both figures of Mestre Mateo are "perfectly identified". In addition, the Consistory of Compostela defended, and will do so again, that the possession of the public patrimony is "imprescriptible".
"We lost the first battle, but we do not give up the war to recover their heritage for the public, "the Mayor of Compostela, Martiño Noriega, told Europa Press.
The demand of the City of Santiago was supported, in its day, with the location in the file of the University of Santiago of the file of acquisition of the pieces, as well as of the own notarial deed, stating all the characteristics of the statues, of municipal ownership.
According to these documents, after withdrawal from the Cathedral, the sculptures went to the Count of Ximonde in the eighteenth century, a nobleman who sold them to the City of Santiago for 60,000 pesetas in 1948. In the sales document there is a reservation "to prevent them from disappearing from the town hall" – with a fine in case this is the case – and its "public property, owned by the residents of Santiago" is preserved, without the possibility of sale or assignment.