The defense of the dismissed mayor Jorge Yunda challenged Judge Fabián Fabara, part of the Trial Court of the case for embezzlement, before an alleged partiality.
Regardless of what is decided this Wednesday, December 1, regarding the challenge raised by the dismissed mayor Jorge Yunda against judge Fabián Fabara, one of the members of the Trial Court of the embezzlement case occurred in the acquisition of 100,000 tests to detect COVID-19 by the Ministry of Health of the Municipality of Quito, the reinstatement of the trial hearing in this case could occur in 2022.
In room 6 of floor 3, in the Provincial Court of Justice of Pichincha, judges Wilson Lema and Patlova Guerra installed, at 10:30, a hearing to resolve whether Yunda’s lawsuit against Fabara it has a foundation or, on the contrary, it has to be discarded. Both provincial judges are part of the Trial Court in the embezzlement case and were not challenged.
It is up to two provincial judges to decide whether or not to accept the challenge raised by Jorge Yunda
The defense of Yunda, Édgar Molina; that of Judge Fabara, Xavier Flores; and that of the defendant Enrique Buchelli, Pablo Encalada, think that, regardless of what is decided on the challenge, the trial hearing in the criminal proceeding for embezzlement will not be installed immediately, but it will take time for the new call, which could be the first days of next year.
The legal avenues for a challenge are to accept or deny it. If the first case occurs, the judge challenged will be replaced by another within the Court; while, to give In the second case, the magistrate will continue to hear the case and the hearing will resume from the day it was suspended, that is, on the 16th.
Judge Fabara’s lawyer explains that, if the challenge is accepted, which he believes will not happen, because there is no factual or legal basis in the claim, another judge will have to be sorted out to replace it. in the cause, that will obligatorily return to day one. At the time it will take the draw, the lawyer adds the time it will take to coordinate the agendas of three judges who not only have other pre-established hearings, but also others that are entering.
In addition, Flores sees a paradox in this case, of accepting the challenge. For him, if Fabián Fabara is recused and the lawsuit is accepted, not only would he leave, but judges Guerra and Lema would also leave the case, because they can’t repeat the hearing, since they would be “contaminated”. Inescapably it starts from scratch and with a new court. “The effect is the loss of time, the wear and tear of the administration of justice.”
In the event that Yunda’s challenge is denied, Fabara would continue to compete in the trial process, but the problem with scheduling would arise again, since it already exists previously. an established schedule of agendas for justices Lema, Guerra and Fabara for the next few weeks. That would mean finding a time in those agendas to arrange for the trial hearing to be reinstated.
The issue of the judges’ agenda has even been seen in this challenge request. Judges Lema and Guerra scheduled the hearing for this Monday, December 1, to learn about Yunda’s approach, despite the fact that the former mayor’s lawyers filed a challenge against Fabara on the 21st last October, that is, almost a month and a half after the claim was filed.
The former mayor’s lawyers challenged Fabián Fabara arguing not only his partiality within the diligence, but also that what the judge was supposedly looking for was to sentence in the case for influence peddling instead of embezzlement, a crime for which an instruction was opened prosecutor in mid-February.
For Édgar Molina, part of Yunda’s defense, this is a challenge specifically against Fabara, because he was not only “anticipating criteria, questioning, cross-examining, leading the experts and witnesses ”to say what the judge wants to hear, but also for the intention that those accused of embezzlement be sentenced for the crime of influence peddling.
Molina assures that the only thing they are looking for is for an impartial judge to direct the hearing and sentence for the crime that it is, and not to invent crimes for their own convenience or interests.
Flores, for his part, defends the legal power that judges have to ask clarifying questions and denies that the Questions asked by your client are expression of opinion within of the cause, which would reflect a bias or that there is a kind of animosity against the former mayor.
For the lawyer, clarifying questions are the opportunity for the judge to nourish himself and fill himself with information about what a witness or expert is saying.
Challenge presented by Jorge Yunda in embezzlement case causes the trial process to suffer delays
Fabara’s defense does not understand how the plaintiff says that since last October 6, Fabián Fabara was a partial judge and they just presented a challenge on October 21.
“Why didn’t they file the lawsuit on October 7? Why did you wait for several days from an impartial judge to file the lawsuit? That is to say, they waited for three weeks of hearing development for them to consider that the judge was not being impartial, ”Flores asked. who affirms that, in his personal opinion, the request for disqualification is a delaying measure.
Marcelo Icaza, another of Yunda’s lawyers, says that the claim filed is not a delaying measure, it is a legal action. He clarifies that it has only been sued to one of the members of the Court and that, if the action is accepted, only Fabara should leave the case, whose trial hearing returns to zero.
The audience
The challenge hearing began with the initial intervention of Édgar Molina on behalf of the dismissed mayor of Quito, and lawyer Xavier Flores on behalf of Judge Fabara. The analysis focused on whether there should be a total reproduction of the audios that the plaintiff maintains as evidence, that is, the audios of the fifteen days of hearing in the embezzlement case, or if only the relevant part would be reproduced .
The judges suspended the diligence for about 40 minutes. The decision the judges made Motto and War was that only the pertinent part is reproduced. That fact generated opposition from Fabara’s defense, who said that the evidence had not been attached from the plaintiff and that they are leaving them defenseless, because they do not know what the facts are.
I weighed to the position of the defense of the provincial judge, the judges who analyze the challenge they gave way to the audios to be reproduced in the relevant part, as arranged.
Around 1:00 p.m. the hearing was suspended again and it was ordered that it be reinstated at 2:30 p.m. to listen to three missing audios that were authorized to be presented as part of the evidence for Jorge Yunda’s lawsuit.
During the reinstatement of the diligence, the remaining audios were listened to and both Yunda’s lawyers and Fabara’s defense presented the grounds to justify each of their positions. After more of two hours of exhibitions, around 5:00 p.m., the judges Lema and Guerra They again asked for a recess, but this time it was to enter to deliberate what was heard during the hearing.
The judges asked the procedural parties not to leave the room, because today the resolution on the petition for disqualification will be announced (I)
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