The Criminal Court number 3 of Oviedo has sentenced the owner of an active tourism company to four years in prison and two monitors to two years for the death of a 14-year-old girl who was camping in Comillas during an excursion along the Cares River in the summer of 2020. In addition, they must pay compensation to the minor's family of more than 200,000 euros.
The judge considers that they are perpetrators of a crime of homicide due to serious negligence, and sentences the businessman to four years in prison and disqualification from practicing a profession in any activity related to active tourism for four years; and two years in prison and disqualification from practicing profession in any activity related to active tourism for two years for each of the two monitors.
The ruling highlights the omission by the businessman of the "most basic standards of care and attention in the development and planning of the descent activity" of the river indicated by the tests, whose direction he assumed "despite the risk and potential danger" that it entailed. , especially when the activity was aimed at inexperienced minors. And he understands that the "seriousness" of these events does not correspond to the imposition of the minimum sentence but to that requested by the Prosecutor's Office.
In the same sense, it is pronounced with respect to the monitors, although their responsibility is less since they were not the most responsible for the company or its managers, but "the severe imprudence committed in their conduct does not cover the imposition of a penalty in degree minimum," he considers.
As direct civil liability and jointly and severally with the insurer XL Insurance Company, who is sentenced in the same way, they must pay compensation for the death of the minor amounting to more than 200,000 euros.
On the contrary, the other insurer, Surne Mutua de Seguros and Generali España SA de Seguros y Reaseguros, was acquitted, against whom the accusation was initially made as direct civil liability, due to lack of accusatory principle.
The victim was spending the holidays at a summer camp in the town of Comillas. This company, through an intermediary, hired the active tourism entity owned by the first defendant to carry out activities.
On July 3, 2020, the descent of the Cares River had been scheduled in the form of rafting or canoe-raft, a modality - one or the other - whose practice depended on the level of the river. On the same day, with a water level in the Cares River oscillating between 1.04 and 1.03 meters, the first defendant opted for the second activity, descending the river by canoe-raft.
The first defendant knew that the other three defendants lacked "any type of specific qualification for any active tourism activity" and "training in first aid and safety," while he was aware that "they were unaware of the accident prevention protocols." accidents and their evacuation". Despite this, the first defendant commissioned them to act as monitors.
The first defendant had the title of guide or monitor for the exercise of canoeing and quad activities, "but exclusively for these activities and in no case for others, such as whitewater descents," the Prosecutor's Office states.
Furthermore, "it disregarded all standards of care, both by offering an activity that was not appropriate for minors and by leaving in the hands of the rest of the accused goods as essential and primordial as the safety and well-being of 21 users."
The accused never requested an extension of the canoeing and quad biking activities to include others, such as rafting, despite the fact that he did have authorization from the Ministry of Cantabria to carry out activities such as rafting, an activity for which he did not have authorization in Asturias.
The first defendant had presented and approved a protocol for action in the event of accidents since March 2007, although this did not cover the area where the accident occurred. His protocol only reflected the descent of canoes in various sections of the Cares and Deva river from the Niserias Dam to the mouth.
The descent group was made up, in addition to the three accused, of a total of 21 users: 18 children with a monitor from camp A, who was traveling as another user, and 2 people from outside the camp, a man and his 8-year-old daughter. years. All of this, despite the fact that canoe rafting in the upper area of the Cares River is not an activity suitable for minors belonging to camps, as it is a risky activity.
The Cares River is considered a whitewater river, as it has rapids that make navigability difficult. It has an area known as Pared del Agua, at kilometer point 38 of the AS-114 highway, where there is a rapid classified with a grade of III, on a scale from I to IV.
The descent began around 5 p.m. Previously, the third defendant verbally gave some small and brief instructions on what to do in the event of an overturn and this despite the fact that the applicable regulations, Decree 111/2004, of November 26, on Active Tourism, requires in its article 14 that the record in writing the information provided to users.
During the descent, the third accused was in first position, in the middle the second accused and, lastly, the fourth accused. Arriving at the aforementioned point, there is a rock in the center of the river and, to the right of it, a small pool where, following criteria of prudence and reason, a monitor had to remain to control the passage of the canoes and this while It is a dangerous area of the river that requires technique and is demanding; area that had to be passed on the right side of the rock, as the left side was more dangerous. However, not all users had this information.
Despite this, none of the accused settled in the rock area permanently. When the victim and another minor began the section called Pared del Agua, they lost control of the canoe, crashing into the rock placed in the middle and overturning. The other minor came to the surface, where she clung to the canoe and the current took her to a calmer area, where she was helped by another minor to get into the canoe. However, the victim was submerged and trapped in the rock crevice due to the collision of the head-on current. None of the accused was attentive or cautious when the minors passed through the aforementioned area and none of them realized that the victim had not emerged.
130 meters from the scene of the incident there is a pool where the count was carried out, and the accused then realized that the victim was missing, although between 10 and 30 minutes had already passed since the fatal outcome.
The accused were in the canoes with only a cell phone, although the area of the accident lacks telephone coverage. The defendants should have considered the use of other alternative means (such as the use of walkie-talkie and road support car) to guarantee emergency service but they did not do so. The 112 emergency service was not notified until at least an hour later.
The minor's body was submerged and only the left lower extremity was visible at intervals due to the current. She died due to cerebral anoxia caused by asphyxiation due to submersion (drowning) in fresh water.
