Recusal process raised by Jorge Yunda does not advance; The judges in the case have gone 57 days without notifying their ruling in writing

In a few days it will be two months since the criminal judges of Pichincha Wilson Lema and Patlova Guerra orally announced that they accepted the challenge proposed by the dismissed Mayor of Quito Jorge Yunda against Judge Fabián Fabara, part of the Trial Court that analyzes the crime of embezzlement in which Yunda is one of the fourteen defendants, but so far that written sentence has not been notified to the parties.

Not having the written justification for the decision made by Lema and Guerra, on December 22, has made it impossible to move forward with the appeal of that ruling that was announced oral in the hearing itself Xavier Flores, defense of the challenged judge Fabara, nor can the trial hearing continue in the main case, that is, the trial of an embezzlement that occurred in the acquisition of 100,000 tests to detect Covid-19 by the Quito Municipal Health Secretariat.

Yunda’s challenge to Fabara became known on October 21, on the sixteenth day of the trial hearing for the embezzlement investigated by the Pichincha prosecutor Alberto Santillán. For the defense of the dismissed mayor Judge Fabara would have been biased in the case and under the power to ask clarifying questions, he introduced information that the witnesses did not give against Yunda.

Recusal presented by Jorge Yunda in a case of embezzlement causes the trial process to suffer delays

For the crime of embezzlement that occurred in the acquisition of 100,000 tests to detect Covid-19 by the Ministry of Health of the Municipality of Quito, the removed mayor Yunda is accused as an indirect perpetrator; while as direct authors of embezzlement, the former Secretary of Health is accused, Lenín Mantilla, and Juan Alejandro Vinelli, manager of Salumed SA

In addition, eleven more people were accused as co-authors, including Ximena Abarca, former Secretary of Health; Linda Guamán, former technical coordinator of the Ministry of Health.

Flores explains that he needs the resolution in writing, because in accordance with article 257 of the General Organic Code of Processes, the parties must receive the ruling in writing to support the appeal in writing in the same way. “Previously we have to receive the resolution in writing, enter a document justifying our appeal, the other party has the possibility of answering our appeal in writing and then a hearing is just called, that is, if we are enough late on the subject.

Despite the fact that it recognizes that there are cases that, depending on the extension, take time to issue the sentence in writing, Fabara’s lawyer continues to worry about the obvious delay that exists in this case, since almost two months have passed since the sentence was read with which Yunda’s challenge was accepted.

In addition, Flores indicates that he has submitted two insistences so far requesting Judges Lema and Guerra to notify them with the resolution in writing to substantiate the appeal. “We still don’t have any answer, they notify us, they don’t conclude the resolution for sure, I don’t know in itself because that is already a procedure of the judges over which I have no control.”

on the opposite side, Édgar Molina, part of Jorge Yunda’s defense, is not worried about the delay and he believes that this is already a matter strictly for the judges. The lawyer thinks that judges Wilson Lema and Patlova Guerra should not be separated from the case, but only Fabara, appoint another judge for the Court and continue from scratch with the trial hearing for embezzlement.

For Pablo Encalada, lawyer for the defendant for embezzlement Enrique Buchelli, whohen it would have generated the need to acquire the evidence, it would be “terrible” to return to zero in the main case in regard to the trial hearing. “If it goes back to zero we should do the test again, the loss of time, that is a problem, how are they going to solve it if it is a problem?”

According to Encalada, even before the challenge was given, they were doing well as a defense, to the point that his client expected to be released from this criminal process last December and no longer complying with any precautionary measure.

Molina hopes that the decision of judges Guerra and Lema will be ratified at the appeal hearing, not only, he says, because the arguments we presented were extremely strong, but becausehe maintains, it is the first time that “two judges of the Court itself realize that what a judge was doing is something anecdotal”.

Jorge Yunda challenges one of the judges of the Trial Court of the case for embezzlement and asks that he be separated from the case

Flores defends Fabara’s actions, pointing out that the only thing he did in the development of the case were clarifying questions, which the Comprehensive Criminal Organic Code empowers him.

“The defense and former mayor Jorge Yunda do not seem to like that. It must be considered that judges when they are immersed in a criminal process are not all experts, so when the experts or witnesses of the facts that are trying to be elucidated participate in the hearings, what is sought is that the judges clarify certain aspects that are said in the hearing, precisely to have more information at the time of solving”, he pointed out.

A Court of the Provincial Court of Pichincha, made up by lottery, must analyze on appeal the conclusions reached by Lema and Guerra that the power of clarification that Fabián F.abara at “a certain moment ended in an interrogation” in which several questions and that many of them “have inserted a criterion that the judge exposes and in which he introduces new information, both to the witnesses and to the experts.” (I)