Almost two weeks after the judicial case against the criminal organization Clan de Los Gallegos – armed arm of the Aragua Train in Chile – will enter the Oral Criminal Court of Arica, to carry out the oral trial next April 22of There are three judges who, on their own initiative or through the action of one of the parties involved in this judicial processhave declared their inability to excuse themselves from participating in this.
The complexity in this case has been so great that even the Supreme Court decided that, on a “temporary and “exceptional” basis, the personal records of the judges of the Criminal Oral Trial Court (TOP) and the Court of Justice will be erased. Arica appeals from the institution’s web portal, while the trial against the criminal organization takes place.
The discomfort for the magistrates began the same February 22, date on which the file was received from the Guarantee Court certified with RIT 41-2024 and that it is kept under reserve, and subsequently the drawing of the judges of the Oral Court was carried out, to form the Chamber that will be in charge of this trial with 38 accused of crimes related to organized crime.
The triad was made up of the presiding and titular judge, Sara Pizarro Grandón; Eduardo Rodríguez Muñoz as editor; Sergio Álvarez Cáceres as member judge; and Caroline Guzmán Muñoz as alternate judge.
And although the dynamics of integration of the chambers is a routine procedure in the courts, this one, in particular, has presented certain peculiarities that have suggested that the case is not comfortable for the judges. Probably, the reason lies in the risk of applying justice to a gang that acts as a franchise of the Venezuelan parent organization Tren de Aragua, through which kidnappings, contract killings and techniques of extreme cruelty, use of weapons were perpetrated. of high firepower and extortion, something never seen in the region and in the country.
Thus, resorting to various reasons stipulated in the Organic Code of Courts, judges Eduardo Rodríguez Muñoz and Sergio Álvarez Cáceres, in a first round, and then Oscar Huenchual Pizarro –who was incorporated due to one of the declared disabilities–, have tried to escape the integration of the Chamber that corresponded to them by lot.
Without a doubt, the process in which they will have to deliver justice is complex and atypical, since for a period of time – at least 6 months, which the trial is expected to last – they will have to, under strict security measures, weigh the Public Ministry’s accusation that involves the request for 11 life imprisonment sentences and crimes related to organized crime, such as seven aggravated homicides; trafficking of migrants, weapons and drugs; in addition to sexual exploitation of migrant women and extortion.
Of the ten titular judges of the Oral Criminal Court of Aricatoday incredibly the cause of the Clan de Los Gallegos is in the hands of a Chamber composed only of women: the titular judge Sara Pizarro Grandón –who has been there since the first draw and who decided not to disqualify herself– and two magistrates who operate telematically from Villarrica and Pitrufquén, María Zapata Pavez and Caroline Guzmán Muñozthrough a case regularization plan promoted by the Supreme Court since 2022, to update those cases lagged since the COVID-19 pandemic.
The decision of the three judges to avoid the integration of the court, without a doubt, challenges the principle of inexcusability that they must comply with and that is established in the State’s own Political Constitution. Regarding this duty, article 76, paragraph 2, of the Magna Carta, clearly establishes that “if their intervention is requested in a legal manner and in businesses within their jurisdiction, they cannot excuse themselves from exercising their authority, not even due to the lack of law that resolves the dispute or matter submitted to its decision.”
The judge “friend” of a convicted person
As if the case of the Los Gallegos Clan was burning hands, on the same day that the Oral Court decided the formation of the Chamber that would take over the trial on April 22, judges Sergio Álvarez Cáceres and Eduardo Rodríguez Muñoz formally presented, through of certificates before the court, the reasons why they were challenged by the parties and thus prevent their participation in the trial.
Quite diligently and to “affirm” both disqualifications, the Public Criminal Defender’s Office, through the lawyer Rodrigo Torres Díaz, validated the causes expressed by judges Álvarez and Rodríguez and presented a request to the Oral Court, indicating that “their disqualification be declared in the cause, challenging them directly for the reasons indicated respectively by both magistrates. Therefore, I ask SS to agree to the request, proceeding to appoint 2 new judges to make up the court.”
In eThe case of Judge Álvarezthe certificate that certified his inability indicates that he was affected by “the grounds for recusal of article 196, paragraph fifteen of the Organic Code of Courts, with respect to an accused for whom a sentence was handed down in the Guarantee Court of this city.”
What is striking about the reason given is that, before the court, Álvarez recognized what the regulations literally say: “The judge has a friendship with one of the parties that is manifested by acts of close familiarity”.
Strictly speaking, the judge admitted to his peers that he had a link of intimate friendship with one of the convicts from the same Clan de Los Gallegos and that he would have accepted an abbreviated trial to avoid an excessive sentence.
In his presentation he did not specify who it was.. Nor was the matter addressed in two successive hearings of the Oral Court held on February 28 and 29, where his disqualification was announced. In that opportunity, None of those involved in the process asked to explain the link and the identity of the convict about whom the close link was declared.
Although the judge did not clarify this relationship, sources close to the investigation They confirm that the judge’s friendship is with Álvaro Muñoz Sotomayor, a Chilean night businessman who owned two nightclubs in which young Venezuelan and Colombian women were prostituted by Los Gallegos. When the PDI arrested Muñoz, they found in his possession 20 thousand dollars in cash, the product of trafficking in women for sexual exploitation. Today, Muñoz is serving his sentence.
The challenge was resolved internally and accepted by magistrates of the same court, ignoring the procedure provided for in the Organic Code of Courts, which in its articleo 204 states that “the Court of Appeals will hear the recusal of a legal judge.”
The judge who is the spouse of a prosecutor
The second disqualification presented on February 22 came from the judge and former criminal defender Eduardo Rodríguez Muñoz. The magistrate also, through a certificate before the court, declared his impediment to joining the Chamber for a reason of implication, by expressing “the existence of the marital bond with an assistant prosecutor of the Public Ministry”.
Indeed, he is the husband of the former criminal defender and now deputy prosecutor Érika Romero Velásquez, which is why paragraph 2 of article 195 of the Organic Code of Courts was applicable to him. This rule states that a magistrate cannot intervene in a case, as “the judge is a spouse, civil partner or blood relative in any of the degrees of the straight line and in the collateral line up to the second degree, or is a father or son.” “adoptive of any of the parties or their legal representatives.”
Although the reason has a legal basis, the strange thing about this situation is the representation that the magistrate makes only for this case and it turns out that – strictly speaking – this cause could permanently affect him throughout his tenure, considering that the deputy prosecutor regularly works in the Public Ministry and one of its functions is to litigate in that court.
To date, no higher body at the judicial level has observed this situation and suggested that the magistrate be transferred to non-criminal courts, to avoid that an oral judge must disqualify himself every time his wife intervenes in a process that falls under his jurisdiction.
Even less has there been a review of the inability that would affect the deputy prosecutor and that is provided for in article 55 of the Constitutional Organic Law of the Public Ministry, due to having a marital relationship with a criminal judge.
In section 3 of this regulation, it is declared as an impediment to its exercise “that the prosecutor is a spouse, civil partner, or relative by consanguinity or affinity in any of the degrees of the straight line and in the collateral by consanguinity or affinity up to the second degree inclusive, of the guarantee judge or of any of the members of the oral trial court before whom he must perform his duties.
The omnipresent judge in the case
After returning from his vacation in the last week of February, a third oral judge also decided to excuse himself from joining the Chamber that will hear the trial against the Clan de Los Gallegos. This is Judge Óscar Huenchual Pizarro,spouse of the lawyer member of the Court of Appeals of Arica, dean of the Faculty of Law of the University of Tarapacá and vice president of the Arica Port Company (EPA), Claudia Moraga Contreras.
In a procedure recorded in two hearings held by the Oral Court on February 28 and 29, the Public Criminal Defender’s Office represented his “involvement” in a process related to the main case of the Clan de Los Gallegos as the judge’s inability. The case was rejected by the court and, when that first attempt failed, it was the judge himself who “refreshed” his memory in that same act and declared a secondcontravening the usual procedure for these cases, where the magistrates present their grounds for implication or recusal before the debate on these matters begins.
The first cause presented by the Public Criminal Defender’s Office referred to the fact that the judge was affected by an implication provided for in article 195, paragraph 8 of the Organic Code of Courts, that is, “the judge having expressed his opinion on the pending issue, with knowledge of the background necessary to pronounce sentence.”
According to the Ombudsman’s Office, the judge would not enjoy the criterion of impartiality, for having joined, as a judicial prosecutor, the First Chamber of the Court of Appeals of Arica on December 23. On that occasion, an appeal filed against the Chilean Gendarmerie was reviewed, regarding the transfer of defendants from the Los Gallegos Clan case to other prisons in the country, for security reasons.
By rejecting the implication, the Oral Court established that it was inadmissible to apply it, because Judge Huenchual did not rule on the merits of the case, but rather – as stated in the resolution of February 28 – “he only heard the defense’s request.” linked to the transfer of the accused to other jurisdictional territories, but not anymore, with regard to the evidence linked to the participation and the punishable act.”
When the hearing resumed and with Judge Huenchual joining the Chamber, he himself decided to represent a new disqualification. From the stand he made a long presentation, trying to convince the participants that he should be recused, given that he was affected by the cause of article 196, paragraph 10, of the Organic Code of Courts, that is, “the judge having expressed in any way his opinion on the pending issue, provided that it was done with knowledge of it.”
In his allegation, he stated that he would have become aware of the case when he was acting as a judicial prosecutor in the Court of Appeals, upon learning of antecedents related to the investigation ordered by the court of appeal, before the resolution of Guarantee Judge Héctor Barraza Aguilera in September last year, in which he made available to defense lawyers the list of 56 witnesses with confidential identity in the Clan de Los Gallegos case.
This time, the Oral Court decided – on February 29 – to send Huenchual’s challenge to the Court of Appeals, applying article 204 of the Organic Code of Courts, which establishes that it is the appeal court that must decide whether there is merit for apply it. The resolution of the Court of Appeals on this matter, an instance where the magistrate’s wife serves as a member lawyer and has close relations with the ministers, is still pending.
Court of Arica pronounces
In response to queries from The counter Due to the situation that affects the case, when three oral judges were declared disqualified or challenged, the president of the Court of Appeals of Arica, Juana Ríos Meza, issued a statement acknowledging the existence of these incidents.
In the case of Judge Huenchual, he specified that regarding the resolution of the Oral Court that did not accept the implication represented by the Ombudsman’s Office, “an appeal is pending in this Court of Appeals so that it is this court of appeal that determines whether the magistrate Huenchual is affected by a cause of inability or not.”
The version delivered by the president of the appeal court does not conform to the text of the minutes of the hearings of February 28 and 29 of the Oral Court, since, strictly speaking, The implication rejected and to which it refers, was never raised in an appeal, given that the Organic Code of Courts itself in its article 205 states that “the sentences handed down in incidents of implication or recusal will be unappealable.”.
It was, rather, the challenge presented by the magistrate himself, when the first attempt by the Ombudsman’s Office failed, which was referred to him for information, as recorded in the judicial record of February 29. The document specifies that “the cause for its knowledge and resolution went to the Iltma. Court of Appeals of Arica. This headquarters will have to resolve the relevance or impertinence of the grounds for recusal, based on the text.”
Likewise, he reported that the Public Criminal Defender’s Office also requested the disqualification of telematic judge María Zapata Pavez, for not being a tenured judge and not serving in person in court. This request was rejected by the Oral Court also on February 29, a criterion that is shared by the Court of Appeals, expressing in its statement that “said magistrate serves as a judge appointed for these purposes, according to a resolution of the Most Excellent Supreme Court, which It is a special program provided for by law and resolved by the highest court in the country, which is why it is authorized to join the Chamber virtually. Therefore, she is a judge who can intervene virtually from a court of the Republic, just as she has done since last year.”
However, the Regional Public Defender’s Office, in response to the situation that affects the case of the Clan de Los Gallegos, pointed out The counter that “it seems to us that the integration of the oral court, for the development of this trial, should be verified with all the judges in person in the court. Only in this way can unrestricted respect be given to the principles established by our legislator, principles related to orality, immediacy and bilaterality of the hearing, all of which govern the incorporation and evaluation of the evidence that is presented in the oral, public trial. and contradictory.”
Regarding a possible fear that would be motivating the oral judges to disengage from this judicial process, said body maintained that “we have no formal knowledge that any specific judge has expressed having that feeling. All the hearings held before the Guarantee Court, from June 2022, until the oral trial preparation hearing have been carried out in an absolutely normal manner, in accordance with previously established security canons, which is why we see no reason to understand that the oral trial is not developed in the same way, ensuring the due protection of all the participants who participate in it.”
For his part, Regional Prosecutor Mario Carrera, in a very brief statement, said that “the Public Ministry has not requested the disqualification of any judge.” When asked about the reasons that the judges have given for not joining the Chamber, he declined to refer to the issue.
