The moral left by the judgment of the Supreme Court of December 29, 2022 that annulled the sentence of August 26, 2022 of the Oral Criminal Court of Temuco, which sentenced Martin Pradenas Durr to 20 years of rigorous imprisonment in its maximum degree as the author of sexual abuse and rape based on the fact that it was issued with the concurrence of an impartial judge, For comments on the case in his social networks, and ordered to enhance a new oral trial, revives and values the saying that “You can’t be in the procession and ring at the same time.”. So we emphasize with regard to this dramatic case, that the judge can not be issuing personal opinions through social media about the case that must rule and at the same time return to the stand to issue the sentence, in such a way that it is not innocuous what he has publicized or said about the case during the process and prior to issuing the sentence. The personal reflections and intellectual or affective musings that the case raises to the judge and the ethical or moral debates that the case imposes on him, can not be developed, but in a rational and legal way in the sentence. What is expected is that the judge objectively applies the right to the facts that make up the case and that he is in an impartial position in relation to the people and facts that he must judge, not being compatible with his function to transform himself into an opinologist or commentator of the case in his social networks.
The case of the nullity of the sentence in question, again relieves in our society the value that judges speak only through their sentences and that in particular, it can become and is extremely delicate and serious that a judge who knows and must resolve a case, in parallel expresses opinions, preferences or animosities and praises the emotional disposition that the case arouses and provokes through social media, in such a way that it can become, as happened in the case in the aforementioned case, to violate the due process to which every citizen who is in the position of being judged is entitled and in which the State assures him as a fundamental guarantee an impartial and independent judge, contaminating the judgment thus issued with nullity.
This dichotomy and essential incompatibility of functions, between a publicist judge of the case that must resolve in the social media and the sentencer, places the case radically in the scenario that a judge cannot exercise his delicate and transcendent function of judging in one way or another, and at the same time assumes the role of expressing all kinds of opinions about the case that must be resolved in networks or social media, as this severely affects their impartiality and independence, which are essential prerequisites for adjudicating a case in a State governed by the rule of law.
Fortunately, the case of the judge of the Oral Criminal Court of Temuco is not the general rule in our legal and judicial culture. Indeed, the general rule is precisely the opposite, which is that judges do not advance their judgment, nor do they pronounce it during and before issuing the judgment. Specifically, a new oral trial must now be held and a valid sentence issued, repeating the procedural acts that correspond to and before non-disqualified judges, who must not incur in this social behavior of disseminating their opinions on the case through social media.
Reflect on this case as the French philosopher Blaise Pascal argues that “The heart has reasons that reason ignores“, then the judges in exercising their functions must marginalize the reasons of the heart or what their intimate affections and feelings suggest to them in the cases to be sentenced, and since we know that they have feelings and beliefs, they must silently prosecute them in the reasons and legal motives of their sentences in a rational way and in simple and clear language, without expressing opinions prior to the judgment or of a personal nature. Unfortunately, this new trial will once again expose the victims, their relatives and witnesses to the pain of having to relive dramatic events in a new trial. The classic aphorism that judges speak through sentences and are not commentators or opinologists of the reality they must judge takes force.
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The content expressed in this opinion column is the sole responsibility of its author, and does not necessarily reflect the editorial line or position of El Mostrador.
