More than two years of investigation, more than a thousand false documents accumulated in 80 volumes, confessions of the accused about their own and other people’s crimes, say the prosecutors of the Penta case, Carlos Gajardo (C.G.) and Pablo Norambuena (P.N.), who also assure that a serious work was done and that none of the penalties is disproportionate.
“It is not possible to expect a sentence of three years for the serious attacks of Penta’s controllers to the fiscal patrimony”, they warn.
This, after the criticisms made by the defense attorneys to the accusation presented by the investigators last Tuesday against their clients. For Carlos Délano and Carlos Lavín, as well as the former Undersecretary of Mining, Pablo Wagner, they asked for 10 years in prison.
-The defense of the owners of Penta described the requested sentences as disproportionate. He recalled that in a hearing there was talk of 15 years, now 10, but in his opinion it cannot be more than 3 or 4 years.
P.N.: “The Criminal Procedural Code, in these cases, contemplates the possibility of increasing the penalty by one or two degrees. The penalty prognosis made by the prosecution is adjusted to the game of mitigating factors, aggravating factors and tax reiteration. It is not possible to expect a sentence of three years for repeated tax crimes, with the amount of false documentation, with the attacks to the tax patrimony that have been carried out and with the millionaire tax fraud that has been executed for years by the accused persons”.
C.G.: “The issue of magnitude is important. In addition, the penalties are related to the tax fraud that has been caused in this case. Along with the bills and invoices for political financing, there is another series of false documents to pay bonuses or make withdrawals by the controllers (of Penta), such as the bills of the spouses. But there are also the forward contracts, which is something that until now has not been discovered in any other company, which makes it an extremely sophisticated fraud”.
-How much does this fraud amount to?
C.G.: “There are different items in the fraud. In the forwards issue, the complete fraud amounts to $2,400 million; in the case of bonuses for executives, it is $1,000 million; the spouses’ invoices, another $340 million. Together, it is a fraud of close to $4,000 million. The different defenses have made rectifications and tax payments, with interest and readjustments, which exceed $8,000 million. If one wants to make comparisons, the “Robbery of the Century” is $6,000 million; in this case, the State has recovered $8,000 million”.
-Regarding the imputed bribery, the defense affirms that the crime is not configured and that Penta’s payments to the former Undersecretary of Mining were a mistake…
C.G.: “The accusation, what it does is to charge that a public official, Mr. (Pablo) Wagner, requested money from private individuals, and there were 14 payments for $3 million each. The defense from the beginning tried to justify the payments as the product of a settlement; however, the prosecution requested the corresponding settlement from Banmédica, dated March 10, 2010, and this shows that nothing is owed by the parties. The argument that there is a pending settlement is not true.
“What existed was a bimonthly payment from Penta while Mr. Wagner was Undersecretary, and that ceases when he leaves office, and -together with those payments- there was a series of conducts that Mr. Wagner deployed in favor of the controllers of the Penta Group. All of them inadmissible for a public official who receives money from a private individual”.
-Among the defenses, there was also talk of a weak accusation, in which the accused in the case are offered as witnesses.
P.N.: “There are more than two years of investigation, a multiplicity of witnesses and statements, 80 volumes of indictment, an indictment that exceeds 700 pages with enough evidence to prove the crimes. The defenses defend a certain interest, which are their clients, but every time they made their arguments on the non-existence of crimes before the courts, through requests for dismissal, the courts rejected them. I give three examples: Mr. (Santiago) Valdés, the two spouses of the controllers, and also Mr. (Carlos) Bombal. And indeed, within the list of witnesses there are defendants, because during this investigation many defendants confessed the commission of certain crimes, the participation of other people in them, and they did it in the presence of police officers. So, police officers can testify, but also those people who finally do not end up in the oral trial”.
-Why was the deceased Hugo Bravo’s statement not taken before a court of law?
C.G.: “The prosecution took the precaution of having police officers participate in each of his statements, who have now been accompanied as witnesses in the indictment. The defense, mistakenly and ignoring express norms of the Code of Criminal Procedure, has insinuated that an anticipated evidence could have been requested, which in fact is not possible, since it is an option that the code only establishes for witnesses, not for the accused”.
-Why was it decided to go with such a high number of defendants to oral trial? Did it have to do with their professional or political condition, so as not to offer other ways out?
P.N.: “Case by case we will be able to see, in its procedural moment, which is the hearing for the preparation of the oral trial, if it is possible or not an alternative way out. Besides, there are pending requests for reopening of the investigation from different defenses”.
-In the case of the owners of Penta, there was talk of an agreement. Why did it not prosper?
C.G.: “Regarding what are conversations between lawyers, it seems to us that it is not correct to refer to it”.
-What is the status of the investigation of the other companies that emerged in this case? Like Ripley, among others.
C.G.: “The prosecutor’s office separated the investigation, and it is still open; but in order to carry out an investigation for tax offenses, it is necessary that the Internal Revenue Service (SII) files a complaint or a lawsuit. It seems to us that when it is an investigation of such a serious crime, such as tax fraud, the rules should be of public criminal action. But what exists today is that in order to initiate a tax investigation it is a requirement that there are complaints or complaints from the SII. And with respect to the other cases that are grouped to this investigation, up to now they have not existed”.
-The criticism, then, is for the SII?
C.G.: It is not a criticism, it is a statement. The criticism we do make is to the legislation, because it does not seem sensible that the criminal prosecution is subordinated to the decision of an administrative body. And this situation is repeated in tax crimes, electoral crimes and collusion crimes. In all of them it is required that there is a prior complaint from an administrative authority, which, in our opinion, is a bad prosecution policy”.
-Chile Vamos has accused that the prosecutor’s office does not investigate with the same force cases involving the New Majority. How do you respond to that?
C.G.: “We are in charge of the investigation of the Penta case, and in that investigation, what the prosecutor’s office has done is to pursue all the people involved in these facts, without making distinctions. About other inquiries we cannot refer, because we are not the prosecutors in charge”.
El Mercurio, 18 March 2017.