Greta Fuchslocher appeals against the Valparaíso court over her exclusion from the competition for the Valparaíso Regional Prosecutor's Office

The exclusion of five candidates carried out by the Court of Appeals of the Fifth Region in the competition for the coveted position of regional prosecutor of Valparaíso did not leave prosecutor Greta Fuchslocher satisfied. Last week the prosecutor was left out of the competition after the full court deemed that she did not meet the legal requirements to compete. Her case was not the only one, as the same happened with prosecutors Mario Carrera, Pablo Bravo, Fred Silva, and Samuel Núñez. The problem became especially complicated for Fuchslocher. All the other prosecutors filed a motion for reconsideration, which was accepted by the full court this Wednesday, so they returned to the race. However, Fuchslocher's case, an assistant prosecutor at the Local Prosecutor's Office of Valparaíso, is different. The prosecutor did not file a reconsideration and was removed from the competition for being married to the head prosecutor of Limache, Guillermo Sánchez, which in the opinion of the majority of the court would contravene the Organic Constitutional Law of the Public Prosecutor's Office and the principle of probity protected by the Constitution. But for the prosecutor, that argument does not apply at this stage, since that requirement should be considered at a later phase, that is, at the moment of taking office. This is because in the event that Fuchslocher made it to the shortlist of three candidates, where it is up to the national prosecutor to choose the regional prosecutor, her spouse could request a transfer to another region. In fact, according to those close to her, her husband had already requested the transfer at the time of his wife's application. With that argument in view, the prosecutor, through her lawyers Gonzalo Yussef and Sebastián Gómez, took a different path from the other prosecutors and filed a protection action before the Court of Appeals of La Serena. The actionIn the protection action, a stay of proceedings is requested. That is, that the competition be suspended until the constitutional action is resolved. This implies freezing the hearing scheduled for next Monday before the full court of Valparaíso. The article used to exclude Fuchslocher is Article 61 of Law 19,640. The second paragraph of that provision states that "spouses or civil partners may likewise not serve as prosecutors in the National Prosecutor's Office, or within the same Regional Prosecutor's Office or in the Supraterritorial Prosecutor's Office, or in any position within the same Prosecutor's Office." "The controversy requires distinguishing between applying to the competition, being included in the shortlist, the appointment by the competent authority, and the effective performance of the position. These stages are not equivalent, and their differentiation is indispensable to determine the scope of the incompatibility invoked," the action reads. Citing Article 31 of that law, the brief makes the clarification that the rule requires that, in order to be appointed regional prosecutor, the applicant not be subject to the incapacities established by law: "The aforementioned provision, Article 31 of Law 19,640, expressly states that said requirements are or must exist in order to be appointed prosecutor, and obviously not in order to be an applicant for said position." In that sense, the action argues that the criterion of the Valparaíso Court had never been used before: "The full court has considered that the disqualification exists, using this criterion for the first time in its history, and in direct contradiction with its own conduct on previous occasions, and certainly being the only Court of Appeals in Chile to apply the rule in the manner indicated." To support this argument, the prosecutor's lawyers cite several previous cases: the 2008 appointment of Solange Huerta, who at the time of applying as regional prosecutor of Occidente was married to prosecutor Álvaro Pérez-Verderamo of the same Prosecutor's Office; the 2021 appointment of Lorena Parra, who at the time of applying as regional prosecutor of Oriente was married to a prosecutor from the area; and the applications of Claudia Turra and Pablo Fritz, who applied without problem for the positions of regional prosecutors of La Araucanía and Ñuble, despite being married to prosecutors from those jurisdictions. "Case law also contributes to understanding the illegality and/or arbitrariness committed by the full court being challenged," the action adds. "The exclusion can be described as arbitrary because it treats as certain and present a consequence that depends on a sequence of future decisions," it adds. According to the action, the decision of the Valparaíso court violates the right to equality before the law protected by Article 19, number 2, of the Constitution. In view of a hearing scheduled for November 16, where the applicants' oral presentations before the full court are expected, the lawyers of the excluded prosecutor request that this hearing be suspended until this action is resolved. "We understand that the court is ruling in a non-judicial situation; there is no jurisdictional action on which it is ruling, but rather it is more of an administrative procedure, so the protection action is one of the ways to restore legality when an infraction of this kind is committed," Yussef tells La Tercera.