The Antofagasta Guarantee Court acquitted the Antofagasta lawyer Antonio Rojas Araya, who had been accused by the Public Ministry as the author of the consummated crime of fraud. The professional was sued by two people with whom he carried out a mining business in 2002, who claimed to be victims of million-dollar losses. The action was initiated in 2015 and although in June the same court declared criminal liability extinguished, the decision was revoked by the Court of Appeals, giving way to a simplified oral trial.
At the hearing, the accusation was supported by prosecutor Natalia Andrade and plaintiff attorney Héctor Álvarez. The case began on September 2, 2015, when Álvarez, representing Alfredo Jiménez Rivera and Carlos Yáñez Álvarez, filed the complaint against Rojas Araya and those who were responsible as authors, accomplices or accessories to the crime of fraud. Rojas Araya did not admit responsibility for the reported events and the simplified trial took place between the 11th and 15th of this month.
In summary, the case deals with a mining business carried out in 2002 between the defendant, the plaintiffs and other partners, which involved six Mining Requests before the Court of First Instance of Pozo Almonte registered in the Registry of Discoveries of the Conservator of Mines of Pozo To the mountain. Antonio Rojas, who was contacted because of his professional experience in the field, acted as the partners’ attorney and proposed an agreement in which he would receive a percentage of the business. Several transactions and sales of shares were then carried out, which, according to the complainants, led to an apparent “dilution” of the original holdings, causing serious economic damage. Rojas, representing the partnership, sold the mining concessions to a third company and the partners alleged deception regarding the value of the sale and the distribution of profits.
The complainants learned that the belongings had been sold for U$9,000,000 and Antonio Rojas explained that the company that had purchased the belongings had paid 30% for the land and 70% for the engineering developed by Shandor Franulic (his father-in-law). This explained that it was only appropriate to consider the percentages of the initial partners, not with respect to US$9,000,000, but with respect to US$2,700,000, which corresponded to 30%.
The defendant, representing his own company Antonio Fernando Rojas Abogado y Compañía Limitada, and the company Inmobiliaria Plaza del Sur SA, had established the Sociedad Contractual Minera La Fortaleza for the sale of the Property. For the complainants, with this maneuver, the company in which the victims, Yáñez and Jiménez, had participation, was no longer the owner of the mining belongings, but a third party in which they had no direct participation. In La Fortaleza, Shandor Franulic Branicic, father-in-law of Antonio Rojas Araya, Antonio Fernando Rojas Araya himself, and lawyer Pedro Antonio Fuentes Araya were appointed as directors.
“In such a way that our shares, which originally represented 20% and 60% of the Plaza del Sur company, owner of the belongings, and then 15.5% and 46.5%, ended up being diluted to become a percentage of said percentages, with the consequent economic damage,” the plaintiffs claimed.
In its ruling, the Guarantee Court held that in accordance with the proven facts and assuming that with the contribution in ownership of the belongings to the company La Fortaleza, as well as the sale of shares to Antofagasta Technology & Mininig Consultants Limited (ATEMCO), the shares of the victims, which originally represented respectively 20% and 60% of the Plaza del Sur Society, owner of the belongings, and then respectively 15.5% and 46.5%, thus becoming a percentage of said percentages very lower than what they initially had, resulting in damage. But in this sense, what remains to be determined is whether that was the product of a deceptive scheme that led them into error and caused financial detriment.
The Public Prosecutor’s Office stated that demonstration of the deceptive actions would be constructed with the maneuver called “dilution”, through which the profit from the sale was diluted between the different companies and their partners, in such a way that the victims’ shares became a percentage of said percentages, with the consequent economic damage. However, the court said that in this sense it should be noted that the operation through Rojas companies that remained motionless until the belongings were owned by a company, until the constitution of La Fortaleza, was known and accepted by Jiménez. and Yanez. And in this context, the ruling continued, dated December 9, 2002, it appears from the incorporated documents that Alfredo Jiménez Rivera sold each of the petitions for $500,000 to the Sociedad Inmobiliaria Plaza del Sur SA represented by Rojas, amounting to the sum of $3,000,000 and the accused, representing the company San Antonio Inmobiliaria eversión SA, sold to Mr. Alfredo Jiménez Rivera 200 shares that the latter company had in the Sociedad Inmobiliaria Plaza del Sur SA
All these contracts were signed by private instruments before a notary public and on June 30, 2004, the court brief stated, on behalf of the Society Antonio Fernando Rojas Abogado y Compañía Limitada and the Sociedad Inmobiliaria Plaza del Sur SA, the company was established. Sociedad Contractual Minera La Fortaleza, to which Inmobiliaria Plaza del Sur SA provided ownership of the aforementioned mining concessions. In this way, the proposal put forward by Rojas materialized, which was accepted by the plaintiffs, since his interest was precisely not to appear in businesses linked to mining as they both worked in that area, generating a conflict of interest.
“In summary of the facts described, proving that there was knowledge and acceptance by the victims of the formula proposed by the person required to operate through companies, the deception is not configured in the terms required by our doctrine and jurisprudence described above, since there is no evidence of an action by the agent tending to deceive the victims, quite adequate, serious and capable, that would have caused the assets to be disposed of by mistake of the victims, nor of the specific damage that such dispossession of assets would cause them. Rather, the requested party proposed a way of operating which was accepted by them because it complied with their interest in not appearing in mining businesses due to presenting conflicts of interest when developing their work in such area,” the ruling stated.
Furthermore, he highlighted the fact that the complainants are professionals with experience in the area of mining and that, although they do not have legal knowledge, due to their work experience and professional training, it is clear that they were able to perfectly understand the scope of what was proposed by Rojas, because it was functional to their claims, to remain invisible as natural persons in such a business. The document even stated that neither Jiménez nor Yáñez expressed in the hearing that they felt deceived by the proposals, but rather their disagreement was due to the amount received after the sale of the mining belongings.
Resolution
“That in the way that has been reasoned, the evidence provided being insufficient to consider the existence of the proper and essential element of the crime for which it has been requested, it is no longer possible to issue an acquittal sentence, taking into account the provisions of article 340 of the Code of Criminal Procedure, in that it states that ‘no one can be convicted of a crime except when the court that tries him acquires, beyond all reasonable doubt, the conviction that the punishable act object of the accusation has actually been committed and that in “he would have given the accused a guilty participation punishable by law’, which is why the request made in that sense by his defense will necessarily be granted,” the Guarantee Court determined.
In this way, the court absolved Antonio Fernando Rojas Araya of criminal responsibility for the crime of fraud and exempted the Public Prosecutor’s Office and the complaining party from paying costs for considering that they had plausible reasons to litigate.
2023-12-28 07:16:09
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