Court recognizes San Martín Obispo Parish’s ownership of Cross of Callosa de Segura

The head of the court recalls in the sentence that the limitations or conditions of the applicable legislation in administrative proceedings and the judicial decisions handed down in its day in the contentious-administrative jurisdiction must be taken into account, applied and respected.

The San Martín Obispo Parish claimed in its lawsuit that its property right over the Cross be recognized, as well as over the 29-square-meter plot of urban land to which it was attached. Likewise, the plaintiffs requested that the City Council refrain “from any act that disturbs the peaceful possession of the property” and its “location.”

The Church maintained that it has been “peacefully and uninterruptedly possessing, guarding and conserving this property as owner for more than 74 years”, for which reason at the time it warned the City Council that it could not act on the monument. In fact, he argued that he was the “only holder of the access key to the enclosure”, a small garden around the cross that was delimited by five gates and the main façade of the parish.

The magistrate considers it accredited that the plaintiff has owned the Cross, built in 1942, as personal property, since at least 1978 and until its withdrawal in 2018, “in a peaceful, public and uninterrupted manner.” In addition, she specifies that “said possession has been carried out as the owner, so the action must prosper in that sense.”

On the other hand, it has determined that said property is not accredited with respect to the 29-square-meter space of the Plaza de España where the sculpture was located, given that the whole of that square is for public use by the residents and that the portion of the The same claimed does not conform an immovable property with the Cross.

Likewise, the magistrate ruled out ruling on a possible return of the Cross to its place of origin, since this request is alien to the purpose of the procedure and is substantiated in the jurisdictional order of administrative litigation within the scope of the Law of Historical Memory. At the same time that she insists that said judicial resolutions “must be applied and respected,” she warns.

For this reason, it recognizes the right to ownership of the Cross of the parish, “without prejudice in this case to the limitations or conditions that the applicable legislation in administrative proceedings and in the contentious-administrative jurisdictional order establish in this regard.”

However, the sentence handed down by the Court of First Instance number 5 of Orihuela is not final and can be appealed before the Provincial Court of Alicante.

The Callosa de Segura City Council and the San Martín Obispo Parish met in May of last year, after several postponements, in the Orihuela courts in a hearing with both parties on account of a lawsuit that the Church filed in 2017 against the local administration to claim ownership of the Cross of the Fallen, as well as the plot of urban land to which it was attached, after the plenary agreed to suppress the commemorative plaques as it was an object of collective exaltation of the civil war prohibited by the Historical Memory Law. Although the Church then requested the precautionary stoppage, after several months of controversy, the City Council, governed by PSOE, EU and Somos Callosa, removed the monolith from Plaza de España in January 2018.

The mayor of the municipality, Manuel Martínez, already appreciated that the trial was held, since once it is determined who owns the square it will be easier “to implement the appropriate measures to restore the Cross,” he said then.

In the first place, he explained, if it is determined that it is the City Council, as has finally happened, it maintains that the authorization by the Consell to remove the monolith, a mandatory permit since it is an Asset of Cultural Interest, did not comply with the legality, so “it would be null and void”. Secondly, because if it were ruled in favor of the Church, “we will make ourselves available to the Bishopric, if they consider it so, so that the monument returns to its original state.”