The Provincial Court of Cádiz has ordered to open an investigation to a notary from Cádiz as a possible perpetrator of a crime of documentary falsity after the Court of Instruction number 4 of Cádiz decreed the provisional file of the case with respect to him by not finding evidence of a crime, a criterion that is not shared by the court of the Fourth Section of Cádiz, which does appreciate “negligent conduct “in the performance of the notary and, therefore, deems appropriate its imputation in the cause to” purge responsibilities. “
This case arises from the complaint filed by the now ex-wife of an employee of the notary’s office, also investigated in the proceeding. In the complaint, she stated that her then husband, “as an officer of the notary’s office and alone or in collusion with the notary,” would have forged a general power of attorney for which her husband obtained extensive powers from her. It would be what in judicial slang is known as’power of ruin ‘, because with its signature broad powers are granted to a person to decide and act on behalf of another.
In addition to stating that she did not intervene in the granting of said power of attorney, which was signed on Friday, September 29, 2017, the woman denounced that three days later, on Monday, October 2, 2017, her husband used the deed to sign in the same notary a mortgage loan that encumbered as collateral a private property (non-community) of it in his absence, which harmed his patrimony.
The provisional dismissal order issued by the Court of Instruction 4 of Cádiz, now revoked, is based on the fact that the complainant did not appear at the notary’s office to sign the power of attorney “due to an indisposition due to illness that prevented her from attending.” The same car says that the notary spoke by phone with the woman and they agreed that she would sign it later. However, it was her husband who wrote her signature, at the judge’s discretion, “with your consent“This coupled with the fact that the complainant did not revoke the power of attorney,” as would have been the logical thing if she was not satisfied “, led the magistrate to conclude that there was no” intention to falsify “, at least on the part of the notary.
However, for the Hearing of Cádiz the notary “may be material author O necessary cooperator of the crime of falsity, or at least having incurred civil and / or disciplinary responsibilities, if the facts that are the object of the complaint are true. “For this reason, he considers that he must testify” as a defendant and not as a witness “to have”evidence of criminality“in their conduct.
“The recognized performance of the notary is, at least, negligentWell, it seems entirely irregular the type of practice that assumes empower by phone and to record the presence of a person who does not appear “, argues the Fourth Section, which adds that the notary is not present at the supposed subsequent signing of the document, so he does not know, in effect, who actually signs it. In fact, “as in the case, the signed signature is not from the principal “, but from the attorney-in-fact.
Likewise, for the court “it remains unexplained whether, at the time of the second notarial deed, in which again without the presence of the complainant a private asset is encumbered with a mortgage, the notary thought that the power of attorney had already been signed by the woman or if it was still pending signature “.
The order that gives continuity to the instruction of the case warns that the day the power of attorney is granted is Friday while the mortgage loan is deed the following Monday: “It is more than doubtful that the notary could come to think that the woman went to the notary’s office on the weekend to sign the power of attorney, “reasons the Court, which underlines that” in any case, it would be irregular that collection of signature without notarial presence “.
In conclusion, the Provincial Court of Cádiz sees evidence of crime inasmuch as “it is recognized that when preparing the notarial act of power the complainant does not appear despite being stated that she does” and because the investigated – the accused husband – admits that the signature that appears in the power of attorney as his wife’s he. In addition, the Fourth Section emphasizes that three days after the seizure, a loan is signed with that power of attorney that encumbers the woman’s home “without her appearance or her signature.”
For this reason, the court has sent the case back to the Examining Court number 4 of Cádiz so that a statement is taken from the notary as investigated as a possible author of a crime of document falsification in order to “debug possible responsibilities” before an action, at least, “negligent“.
The crime of falsifying a public document, recalls the court, “damages the trust that society it has deposited in the value of the documents as a true reflection of what they contain, express or prove “.
Article 391 of the Penal Code establishes that “the authority or public official who, due to gross negligence, incurs in any of the falsehoods provided for in the previous article or causes another to commit them, will be punished with the penalty of fine of six to twelve months Y suspension of employment or public office by time of six months to a year“.
The notary and the ‘house of horrors’ of Chiclana
The notary now under investigation is the same one who participated in the signing of the will of María Babes, a 101-year-old German woman swindled by her caretakers in what is known as the ‘house of horrors’ in Chiclana. The notary registered a caregiver as heir to Babes. The signing of the power of attorney took place in a car park. The notary thought that the person present was Maria Babes, when in fact it was Elisabeth, another German resident of the ‘house of horrors’. The Civil Guard later showed the notary a video in which the real María Babes appeared. Until then, he said, he was not aware of the identity theft that occurred that day in the parking lot.