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RUC 1100440193-1 RIT199-2012

UNODC No.:
CHL004
Sentence Date:
2012-09-07
Author:
UNODC Regional Office for Brazil and the Southern Cone
Court:
Oral Criminal Court (4º Tribunal de Juicio Oral en lo Penal de Santiago)

Keywords

Sector in which exploitation takes place:
Commercial sexual exploitation
Means:
Threat or use of force or other forms of coercion
Deception
Abuse of power or a position of vulnerability
Acts:
Recruitment
Transportation
Transfer
Harbouring
Receipt
Form of Trafficking:
Transnational
Organized Criminal Group
Purpose of Exploitation:
Exploitation of the prostitution of others or other forms of sexual exploitation

Procedural Information

Legal System:
Civil Law
Latest Court Ruling:
Court of 1st Instance
Type of Proceeding:
Criminal
 

1st Instance:

4º Tribunal de Juicio Oral en lo Penal de Santiago

Santiago, Chile

2012-09-07

Reference: RRUC 1100440193, RIT 199-2012

 
 

Victims / Plaintiffs in the first instance

Victim:
Y.E.O.
Gender:
Female
Nationality:
Dominican
Age:
27
Victim:
M.C.U.
Gender:
Female
Nationality:
Dominican
Victim:
M.P.F.
Gender:
Female
Nationality:
Dominican

Defendants / Respondents in the first instance

Defendant:
Gregoria Manzueta
Gender:
Female
Nationality:
Dominican
Age:
49
Defendant:
Orquidea Ubiera Mercedes
Gender:
Female
Nationality:
Dominican
Age:
39
Defendant:
Alba de las Mercedes Arancibia Rojas
Gender:
Female
Nationality:
Chilean
Age:
58
Defendant:
O.G.C.
Gender:
Male
Nationality:
Chilean
Age:
58
Defendant:
Mariana del Pilar Fuenzalida Sánchez
Gender:
Female
Age:
33

Fact Summary

The facts that formed the basis of the indictment in this case occurred primarily between April 2010 and May 2011.

First Fact

The defendants were part of an organized criminal group with a hierarchical structure, wherein each one had specific functions, for the purpose of trafficking in person, facilitating the entry in the Chilean territory of several Dominican women, recruited to exercise prostitution. The defendants used deception and abuse of the vulnerability of the victims.

The group was organized in the following way:

(a) The defendant Gregoria Manzueta was the leader of the organization. She was responsible for the recruitment of the victims. She coordinated their transportation from Dominican Republic to Chile and inside the country. She also coordinated the arrival of the victims, transfer and their stay until she distributed them to different Chilean cities, for the purpose of sexual exploitation.

(b) The defendant Orquídea Ubiera Mercedes was responsible for the reception of the victims at the Airport Arturo Merino Benítez  and to take them to Gregoria Manzueta´s apartment in Santiago, Chile. She also was responsible for the stay, feeding and later transfer of the victims to the cities of Concepción and San Antonio.

(c) The defendant O.G. was responsible for the stay of the victims in the city of Concepción, Chile.

(d) The defendant Alba de las Mercedes Arancibia Rojas was responsible for the reception and distribution of the victims in the city of San Antonio, Chile. She was the manager of the night club “El Sol”, in San Antonio.

(e) The defendant Mariana Del Pilar Fuenzalida Sánchez was the one who received the victims in the city of San Antonio, Chile and undertook the responsibility to make sure the victims exercise prostitution.

It has been detected that since the beginning of the organized criminal group they sent more then twenty million pesos to the Dominican Republic.

Second Fact

On March 16, 2011, the defendants facilitated the entry in Chile of the victim Y.E.O., a Dominican woman of 27 years, who had been contacted by the defendant OrquídeaUbiera. The defendant deceived the victim saying she would work in the tourism field, and took advantage of her position of vulnerability.

Once in Chile, the victim Y.E.O. was transferred to Gregoria Manzueta´s apartment in Santiago for the purpose of sexual exploitation in the downtown of Santiago. Some days later she was taken to the city of Concepción, Chile, to exercise prostitution at the night club “Olga”, which was coordinated by the defendants Orquídea Ubiera and O.G.

Third Fact

On March 17, 2011, the defendants facilitated the entry in Chile of the victim M.C.U., a Dominican woman previously contacted by the defendant Orquídea Ubiera. The defendant deceived the victim and abused of her position of vulnerability, saying that the victim could receive a good remuneration if she worked in Chile.

Once in Chile, the defendant Orquídea transferred the victim M.C.U. to Gregoria Manzueta´s apartment for the purpose of sexual exploitation in the downtown of Santiago. Few days later she was transferred to the city of Concepción, Chile, to exercise prostitution at the night club “Olga”, which was coordinated by the defendants Orquídea Ubiera and O.G.

Fourth Fact

On April 14, 2011, the defendants facilitated and promoted the transfer of the victim M.P.F., a Dominican woman who had entered recently in Chile, from Santiago to the city of San Antonio, Chile.

The defendant Gregoria Manzueta recruited the victim M.P.F. when she was on the waiting line at the Department of Immigration and Migration in Santiago, Chile. The defendant deceived the victim M.P.F. by saying that she would work at a coffee shop.

Once the victim was in San Antonio, she was received by the defendant Alba Arancibia, who was the manager of the night club “El Sol”, place where the victim had to work as prostitute, being permanently controlled by the members of the organized criminal group.

On May 25, 2011, the police officers, pursuant an order of entry, search and seizure, entered at the night club “El Sol” and surprised the defendant Mariana Sánchez, who kept locked the victim M.P.F. in a room.


Charges / Claims / Decisions

Defendant:
Gregoria Manzueta
Verdict:
Guilty
Charge / Claim:
Organized Criminal Group for the purpose of Trafficking in Person
Legislation / Statute / Code:

Penal Code, article 292 combined with the articles 367 bis, 411 nº 4 and nº 5, and article 293

 
5 (five) years and 1 (one) day of imprisonment for the criminal offense of organized criminal group and 10 (ten) years and 1 (one) day of imprisonment and a fine of 10 (ten) monthly tax units for the criminal offense of trafficking in person
Legal Reasoning:

The Court considered that the testimonies of the victims Y.E.O. and M.P.F. and the affidavits of González, Cárdenas, Berna, Baeza, Escobar, Carrasco, Villalobos, Orellana y Arias, as well as the reports from the telephonic interceptions, were enough to prove that the defendants were organized for the purpose of trafficking in person for sexual exploitation and that the defendant Gregoria Manzueta was the leader of the group. The victims were all foreigners, usually from the Dominican Republic, all of them in a vulnerable situation.

The Court deliberated that all the evidence gathered were enough to prove the authorship and materiality of the criminal offenses of the first (organized criminal group), second (trafficking the victim Y.E.O. for the purpose of sexual exploitation) and fourth fact (trafficking the victim M.P.F. for the purpose of sexual exploitation).

The Court considered, in relation to the criminal offense regarding the victim M.C.U. (third fact), that once the evidence gathered was not substantial enough and in the absence of the testimony of the victim M.C.U., the defendants could not be sentenced for the supposed crime.

The Court pointed out that in the present case the defendant could not be charged for continuous crime, as the defence asked, because, among others rights, the sexual idoneity of the victims has been violated, a personal right that requires the maximum legal and juridical protection. The Court also noted that the crime of trafficking in person is a pluri offensive delict which disrespects several personal rights, such as liberty, sexual idoneity and personal security.

The Court also took into consideration that the defendant Gregoria Manzueta had no criminal records, therefore was applied the mitigating circumstance in the terms of the article 11, nº6 of the Penal Code.

The defendant Gregoria Manzueta was sentenced to a term of 5 (five) years and 1 (one) day of imprisonment for the criminal offense of organized criminal group and 10 (ten) years and 1 (one) day of imprisonment and fined with 10 (ten) monthly tax units for the criminal offense of trafficking in person.


Defendant:
Orquidea Ubiera Mercedes
Verdict:
Guilty
Charge / Claim:
Organized Criminal Group for the purpose of Trafficking in Person
Legislation / Statute / Code:

Penal Code, article 292 combined with the articles 367 bis, 411 nº 4 and nº 5, and article 294

 
541 (five hundred and forty-one) days of imprisonment for the criminal offense of organized criminal group and 5 (five) years and 1 (one) day of imprisonment and a fine of 10 (ten) monthly tax units for the criminal offense of trafficking in person
Legal Reasoning:

The Court considered that the testimonies of the victims Y.E.O. and M.P.F. and the affidavits of González, Cárdenas, Berna, Baeza, Escobar, Carrasco, Villalobos, Orellana y Arias, as well as the reports from the telephonic interceptions, were enough to prove that the defendants were organized for the purpose of trafficking in person for sexual exploitation and that the defendant Orquidea Ubiera took part in several offenses committed by the criminal group. The victims were all foreigners, usually from the Dominican Republic, all of them in a vulnerable situation.

The Court deliberated that all the evidence gathered were enough to prove the authorship and materiality of the criminal offenses of the first (organized criminal group) and second fact (trafficking the victim Y.E.O. for the purpose of sexual exploitation).

The Court considered, in relation to the criminal offense regarding the victim M.C.U. (third fact), that once the evidence gathered was not substantial enough and in the absence of the testimony of the victim M.C.U., the defendants could not be sentenced for the supposed crime.

The Court also acquitted the defendant Orquidea Ubiera for the criminal offense regarding the victim M.P.F. (fourth fact)since there were no elements linking the defendant to that crime.

The Court took into consideration that the defendant Orquidea Ubiera had no criminal records, therefore was applied the mitigating circumstance in the terms of the article 11, nº6 of the Penal Code.

The defendant Orquidea Ubiera was sentenced to a term of 541 (five hundred and forty-one) days of imprisonment for the criminal offense of organized criminal group and 5 (five) years and 1 (one) day of imprisonment and fined with 10 (ten) monthly tax units for the criminal offense of trafficking in person.

Defendant:
Alba de las Mercedes Arancibia Rojas
Verdict:
Guilty
Charge / Claim:
Organized Criminal Group for the purpose of Trafficking in Person
Legislation / Statute / Code:

Penal Code, article 292 combined with the articles 367 bis, 411 nº 4 and nº 5, and article 294

 
541 (five hundred and forty-one) days of imprisonment for the criminal offense of organized criminal group and 5 (five) years and 1 (one) day of imprisonment and a fine of 10 (ten) monthly tax units for the criminal offense of trafficking in person
Legal Reasoning:

The Court considered that the testimonies of the victims Y.E.O. and M.P.F. and the affidavits of González, Cárdenas, Berna, Baeza, Escobar, Carrasco, Villalobos, Orellana y Arias, as well as the reports from the telephonic interceptions, were enough to prove that the defendants were organized for the purpose of trafficking in person for sexual exploitation and that the defendant Alba Arancibia took part in several offenses committed by the criminal group. The victims were all foreigners, usually from the Dominican Republic, all of them in a vulnerable situation.

The Court deliberated that all the evidence gathered were enough to prove the authorship and materiality of the criminal offenses of the first (organized criminal group), fourth fact (trafficking the victim M.P.F. for the purpose of sexual exploitation).

The Court considered, in relation to the criminal offense regarding the victim M.C.U. (third fact), that once the evidence gathered was not substantial enough and in the absence of the testimony of the victim M.C.U., the defendants could not be sentenced for the supposed crime.

The Court also acquitted the defendant Alba Arancibia for the criminal offense regarding the victim Y.E.O. (second fact) because there were no elements linking the defendant to that crime.

The Court took into consideration that the defendant Alba Arancibia had a previous condemnation for drug trafficking.

The Court recognized the mitigating circumstance, in the terms of the article 11, nº 9, of the Penal Code, once the defendant contributed substantially to the understanding of the facts.

The defendant Alba Arancibia was sentenced to a term of 541 (five hundred and forty-one) days of imprisonment for the criminal offense of organized criminal group and 5 (five) years and 1 (one) day of imprisonment and fined with 10 (ten) monthly tax units for the criminal offense of trafficking in person.


Defendant:
O.G.C.
Verdict:
Not Guilty
Charge / Claim:
Organized Criminal Group for the purpose of Trafficking in Person
Legislation / Statute / Code:

Penal Code, article 292 combined with the articles 367 bis, 411 nº 4 and nº 5, and article 294

Legal Reasoning:
The Court considered that the evidence gathered was not strong enough to destroy the presumption of the innocence of the defendant O.G. There was no proof linking him to the criminal offenses.
The Court understood that the actions of the defendant O.G. were only the ones in the context of his relationship with the defendant Orquídea Ubiera, his girlfriend, without knowing of any illegal acts of Orquídea Ubiera and Gregoria Manzueta.
The Court noted that, as had been proven by documental and testimonial proof, the defendant has always had legal activities.
The Court considered that his actions of receiving in his home the victims Y.E.O. and M.C.U. as well as sending forty thousand pesos to Gregoria Manzueta were atypical conduct, once there was no animus of practicing the sexual exploitation.
For all these reasons, the Court acquitted the defendant O.G.

Defendant:
Mariana del Pilar Fuenzalida Sánchez
Verdict:
Guilty
Charge / Claim:
Organized Criminal Group for the purpose of Trafficking in Person
Legislation / Statute / Code:

Penal Code, article 292 combined with the articles 367 bis, 411 nº 4 and nº 5, and article 294

 
300 (three hundred) days of imprisonment for the criminal offense of organized criminal group and 3 (three) years and 1 (one) day of imprisonment and a fine of 10 (ten) monthly tax units for the criminal offense of trafficking in person
Legal Reasoning:

The Court considered that the testimonies of the victims Y.E.O. and M.P.F. and the affidavits of González, Cárdenas, Berna, Baeza, Escobar, Carrasco, Villalobos, Orellana y Arias, as well as the reports from the telephonic interceptions, were enough to prove that the defendants were organized for the purpose of trafficking in person for sexual exploitation and that the defendant Mariana Fuenzalida took part in several offenses committed by the criminal group. The victims were all foreigners, usually from the Dominican Republic, all of them in a vulnerable situation.

The Court deliberated that all the evidence gathered were enough to prove the authorship and materiality of the criminal offenses of the first (organized criminal group), fourth fact (trafficking the victim M.P.F. for the purpose of sexual exploitation).

The Court considered, in relation to the criminal offense regarding the victim M.C.U. (third fact), that once the evidence gathered was not substantial enough and in the absence of the testimony of the victim M.C.U., the defendants could not be sentenced for the supposed crime.

The Court also acquitted the defendant Mariana Fuenzalida for the criminal offense regarding the victim Y.E.O. (second fact) because there were no elements linking the defendant to that crime.

The Court took into consideration that the defendant Mariana Fuenzalida had no criminal records, therefore was applied the mitigating circumstance in the terms of the article 11, nº6 of the Penal Code.

The Court recognized the mitigating circumstance, in the terms of the article 11, nº 9, of the Penal Code, once the defendant contributed substantially to the clarification of the facts.

The defendant Mariana Fuenzalida was sentenced to a term of 300 (three hundred) days of imprisonment for the criminal offense of organized criminal group and 3 (three) years and 1 (one) day of imprisonment and fined with 10 (ten) monthly tax units for the criminal offense of trafficking in person.

The Court granted to the defendant Mariana Fuenzalida the benefit of the probation, in accordance to the Law 18.216. For the concession of the benefit, the Court considered the following circumstances: the age of the defendant, the fact that it was the first time that the defendant faced the criminal system and the fact that is probable the social reinsertion through the alternative measure, as well as the defendant´s desire to reform her behaviour.


Sources / Citations

RUC 1100440193-1 RIT199-2012

Commentary and Significant Features

The Court pointed out that the penal disposition related to the criminal offense of trafficking in person (Penal Code, article 411 nº 4) was a legislative modification for the harmonization of the Chilean Law with the international norms concerning the Human Trafficking, signed by Chile, which seeks to protect the human dignity, the liberty, the integrity as well as the personal security, sexual liberty and the working liberty.