Updated as of December 28, 2020

How does a convicted felon go from 20 to eight years in prison? The answer was found by Jorge Luis Zambrano Gonzalez, alias Rasquiña and leader of Los Choneros, and Judge Jose Tamayo Arana. The magistrate, who worked in the Criminal Judicial Unit No. 2 of Guayaquil, is the author of a controversial sentence that benefited Rasquiña so that he could be released from prison early, last June.

Although this freedom only lasted six months: Rasquiña was murdered on December 28, 2020 by a hitman. The incident took place in a shopping mall in Manta, the city where he lived. Videos on social networks showed the moment when a man shot Rasquiña while he was in a cafeteria. He was taken to a health center. The Manta Police confirmed his death to local media. After the incident, the Minister of Government, Patricio Pazmiño, decided to send police anti-crime intelligence teams to Manabí, Guayas and Los Ríos to fight delinquency and organized crime. He announced that he is evaluating coordinated actions with the Ministry of Defense and the National Service of Attention to Persons Deprived of Liberty (SNAI).

In 2015, Zambrano was sentenced to 8 years in prison by the Criminal Guarantees Court of Manabí for being considered an accomplice to the crime of murder. Zambrano appealed that sentence and the Provincial Court of Manabí modified his sentence and increased it to 20 years. It pointed him out as a co-perpetrator of that crime. Finally, in September 2017, Zambrano reached the National Court of Justice, which ratified the 20-year sentence.

But in 2019, the court judge Tamayo Arana lowered the sentence from 20 to 8 years. How did he do it? Through an appeal of penitentiary guarantees called 'reduction of sentence by more lenient law'. His sentence, dated February 7 of that year, ends as follows: "With these antecedents, I resolve to accept the request for the application of the principle of favorability, and it is ordered that he complies with the sentence that as an accomplice would correspond to him 8 years of imprisonment, as ordered by the Court of Criminal Guarantees of Manabí, for which he (sic. ) is being held in the Detention Center for Adults in Conflict with the Law Zone 8 of Guayaquil, male section, he must continue serving the remainder of the sentence in that prison".

To reach this conclusion, Tamayo cited resolutions of the IACHR, the Constitutional Court, the National Court and international legislation. With these he argued that the principle of favorability should be applied to Zambrano, that is to say, he should be sentenced by the less harsh law. According to Tamayo, the decision of the Provincial Court of Manabí to reform the sentence from 8 to 20 years was "a misapplication of the current law".

Tamayo said that Zambrano "should have been sentenced with the legal norm in force (the previous Penal Code), but not the current penal norm (COIP) with which he aggravated his legal situation and therefore the sentence was imposed".

With this criterion, Judge Tamayo left the way open for Zambrano to begin his pre-release proceedings during 2019.  But upon reviewing the court documents, that decision was not appealed or questioned by anyone. Although experts and jurists consulted argue that the only resource to which Zambrano could have resorted, after the CNJ, is an extraordinary action of protection in the Constitutional Court. If the defendant insists on appealing the decision of the Ecuadorian justice system, he can go to international courts.

But Zambrano took a shortcut with Tamayo's sentence, which apparently no one noticed. Plan V analyzed the different processes of the case. They show that reactions were late or non-existent. For example, the first notice of Tamayo's resolution arrived at the Prosecutor's Office, after a month, on March 20, 2019. The Prosecutor's Office is the sole owner of the public action, but reacted seven months later when on September 27 it requested a copy of the process and the audio of Tamayo's hearing.

In that same month, September 2019, Tamayo was dismissed by the Judiciary Council and began to practice as a private attorney. Since November last year, he has been the defender of his relative Xavier Alexander N.A., who faces a process of illicit association involving a judge and a prosecutor. Both officials were accused of helping an organization related to the Sinaloa cartel. Their trial is still pending.

However, Judge Tamayo's decision remained firm. This was recorded on November 19, 2019. On that day, the Criminal Judicial Unit 2 of Guayaquil confirmed that the judge's resolution had been "executed". This aspect was also noted by Judge Alzira Beatriz Benítez Telles, of the Criminal Judicial Unit of Latacunga. Last June 6, Benítez said that the resolution of Judge Tamayo, to lower the sentence from 20 to 8 years, had been executed and that there had been no challenge by the Prosecutor's Office as was recorded in a previous article in Plan V. That day Zambrano was released from prison and Benítez was opened an investigation into Zambrano's pre-release.

The only action recorded by the Prosecutor's Office is from last May 28th, when it opened proceedings against Tamayo for prevarication. That is, eight months after Tamayo's sentence, the Prosecutor's Office acted in this case. The hearing for the formulation of charges against Tamayo will take place this June 18.

But so far it has not been clear how a sentence of a dismissed judge could become final. Plan V requested an interview with María del Carmen Maldonado, president of the Judiciary, to clarify this issue. But her communications department stated that her schedule was busy.

Plan V also requested an interview with the Attorney General, Diana Salazar, about the actions of the Prosecutor General's Office in the Rasquiña case. But the answer was the same: "the media agenda of the Attorney General is closed".

The prevarication process against Tamayo coincided with the journalistic reports of those days of Zambrano's early release. The leader of Los Choneros, between January and May, presented habeas corpus petitions and requests for pre-release before judges in Latacunga, where the prison where he was held is located. His lawyer Harrison Salcedo, defender of Jorge Glas, was his lawyer in these processes that were detailed in the article "During the quarantine, the leader of Los Choneros wanted to speed up his pre-release" of Plan V.

So far no authority has explained how a character, the feared leader of the Los Choneros gang, could be released from prison with a questioned resolution. If the 20-year sentence had been maintained, Zambrano would have been released from prison on June 18, 2032, considering that he escaped from La Roca for nine months and eleven days in 2013. But with Judge Tamayo's reduction, the calculations were made based on the 8 years and that is why he obtained the pre-release for which no one is responsible.

Tamayo to trial

On June 18, the justice system issued a preventive detention order against Judge Tamayo, 16 months after his controversial sentence. The prosecutor's office accused him of prevarication by modifying the conviction of alias Rasquiña. This crime is punishable with imprisonment of three to five years. The prosecutor of Guayas, Yanina Villagómez, presented twelve elements of conviction that would determine the direct participation of the defendant, as direct perpetrator, among these: The complaint filed by the National Director of Legal Counsel, Andres Peñaherrera, delegate of the General Directorate of the Judiciary Council; the certified copies of the criminal trial of alias Rasquiña, in which all the stages of the process are recorded; the certification of the personnel action of the investigated ex-magistrate, as well as his version rendered in the Prosecutor's Office; and, the certified copies of the disciplinary file followed against him.

The president of the Provincial Court of Justice of Guayas, Alfonso Ordeñana, accepted the request of the Prosecutor's Office which was made 16 months after the controversial resolution of Tamayo Arana. He also requested the Judicial Police to proceed to locate, trace and capture Tamayo Arana. On October 28, the President of the Provincial Court of Justice of Guayas, Alfonso Ordeñana, called him to trial.

Zambrano was arrested in September 2011. File/ El Telegrafo

Who are Los Choneros and alias Rasquiña?

Jorge Luis Zambrano, alias Rasquiña or JL, was released last June 6 amid a street of honor and applause from his followers in the Latacunga prison. He wore an orange T-shirt, which is part of the prisoners' uniform, and a black mask. That same day a hip hop song was broadcast on social networks welcoming him to Manta, where he had to reside until he served his full sentence. Its singers showed guns and dollars. "Ladies and gentlemen and everyone this is addressed to the head of Los Choneros", is one of its phrases.

Video of Jorge Luis Zambrano, #Rasquiña when he was released from prison, today he is free, paid only 6 of 20 years. pic.twitter.com/MPO438mlf3

— La Voz de Manabí (@LaVozdeManabiEc) June 7, 2020

The Choneros are a narco criminal organization that was born in the late 1990s in Puerto Arturo, in Chone (Manabí), hence its name. They started out as common criminals and then moved into the drug trade. The group is linked to various crimes, such as extortion of small businesses, car theft, bank robbery, armored car and commercial premises robbery, as well as contract killings and drug trafficking.

The precursor of the gang is Jorge Véliz España, alias Lieutenant España. He is a native of Puerto Arturo, in Chone. The beginnings of his criminal life were in robbery and drug micro-trafficking, he also has charges for illegal possession of weapons, attempt against life, and homicide. Véliz died on January 31, 2007, riddled with bullets in Santo Domingo.

Alias Rasquiña was the one who assumed leadership of the group. But Zambrano was arrested on September 7, 2011 for the crime of murder. However, he escaped from La Roca on February 11, 2013, along with 17 other inmates. They escaped after leaving security guards handcuffed and fleeing by sea transport across the Daule River. Nine members of The Choneros were on the list of fugitives. But alias Rasquiña was recaptured on November 22, 2013.

In the Saturday 241 link on October 8, 2011, former President Rafael Correa mentioned the possibility of granting amnesty to the gang members if they surrendered to the authorities or provided any information about the group.

However, the following Saturday, during the link, he changed his mind and said that the sentence reduction would be for minor collaborators, but not for members of The Choneros who committed crimes such as murder.

In 2013, in an interview on Gamavisión, then Minister of the Interior, José Serrano, mentioned that at the level of leaders, the criminal group would be completely dismantled. But in 2015, in the Operation Eslabón 34, 12 people were captured for the crimes of kidnapping and extortion in Ibarra, Santo Domingo, Manta and Esmeraldas. The detainees were identified as members of the FARC and the Los Choneros gang.

The gang has continued to operate from prisons. Another member of The Choneros, alias Fito, has been linked to and investigated for being the "armed wing" of Washington Prada, alias Gerald, known as the Ecuadorian Pablo Escobar. Alias Gerald was arrested in Colombia and extradited to the United States in 2017. Plan V did an extensive report on this character and his allies in Ecuador as The Choneros.

Translated by Manuel Novik