Kast Considers Rafael Prohens, Controversial Former Senator, for Ambassadorship Amid Legal Scandals

Original article: Kast considera para una embajada a Rafael Prohens, exsenador cuestionado por caso en que habría robado y vendido agua en Atacama

Amid the shifting political landscape following José Antonio Kast ‘s rise to the presidency of Chile, potential candidates for the diplomatic corps are starting to emerge. One name making headlines for a possible ambassadorial role is that of former senator Rafael Prohens, a member of Renovación Nacional (RN), who is reportedly being considered by Kast to become Chile’s ambassador to Costa Rica.

Prohens’ potential appointment comes just after he concluded eight years in the Senate, having failed to secure reelection in last year’s elections. However, his candidacy is not without controversy, as the former senator carries a history of legal controversies that could hinder his diplomatic aspirations.

The name of the former RN president has been closely associated with a complex case involving allegations of illegal extraction and commercialization of water in the Atacama region, one of the areas most affected by drought and desertification in the country.

In September 2023, El Ciudadano published the first in a series of investigative reports on the severe drought situation of the Copiapó River, revealing through testimonies from various social and community actors how there had been extensive water diversion from the river over the last decades of the 20th century.

Simultaneously with the publication of this journalistic work, the court ordered the intervention of the Copiapó River and Its Tributaries Surveillance Board after it was confirmed that its members had installed water intake points in unauthorized locations for extracting significant volumes of water illegally, severely affecting the river’s flow and the rights of other users.

Rafael Prohens was among those identified as participants in this illegal water extraction system while serving as senator for the region.

Journalistic and legal investigations began to outline a network linking the parliamentarian to irregular practices in water management, a resource that is increasingly scarce and valuable in northern Chile.

In late 2019, the National Water Directorate conducted an inspection that identified an unauthorized intake in the Mal Paso Canal, which was diverting 35 liters of water per second to the facilities of the mining company Atacama Kozan. What might initially have been attributed to an administrative error or minor irregularity escalated when inspectors reviewed the documentation: the rights to that water were not in the name of the mining company but belonged to the agricultural enterprise Doña Berta Limitada, owned by senator Rafael Prohens.

Following this, El Ciudadano revealed that the diversion of water from the Copiapó River was part of a much larger scheme orchestrated by the then-legislator, involving significant political and business figures in the region.

The embezzlement mechanism, as investigations revealed, operated in a coordinated manner and appeared normal for years. The illegal water extracted by Rafael Prohens from the Copiapó River was sold to Atacama Kozan, which, in turn, was being defrauded by the same parliamentarian through a complex mechanism devised by former general manager of the mining company, Francisco Sánchez, who was also an RN member and a close collaborator of Prohens.

Utilizing his position in the company and acting behind the backs of the owners, Sánchez reported a higher volume of water entering the mining operation than was actually being used, thus justifying excessive payments that directly benefited himself and Rafael Prohens. A subsequent legal complaint indicates that the funds embezzled through this scheme may have even been used in the political campaign that led Rafael Prohens to the Senate in 2017, adding a more serious dimension to the allegations.

The Contract that Sealed the Agreement

The origins of this intricate web of corruption and illegal water extraction can be traced back to Copiapó, specifically on April 9, 2014, when the then-general manager of Atacama Kozan, Francisco Sánchez, visited a notary near the Plaza de Armas of the regional capital, where Rafael Prohens was present. The recent change in government and the arrival of Michelle Bachelet to La Moneda had forced Prohens to vacate his position as governor of Atacama, a role he had held during Sebastián Piñera’s first administration.

Sánchez and Prohens were not mere acquaintances; both were old friends sharing membership in Renovación Nacional and a history of business ventures in the region. However, the project that brought them together that day was unlike any they had previously embarked upon. The fraud scheme they were about to implement would ensure a steady flow of millions of pesos for years to come, cementing a partnership that would later become the subject of judicial scrutiny.

The contract signed that morning between Francisco Sánchez, on behalf of Atacama Kozan, and Rafael Prohens, as owner of his agricultural company Doña Berta Limitada, seemingly aimed to ensure the availability of water for the mining operations, a Japanese-owned company that produces approximately 150,000 tons of copper concentrate each month. To achieve this, Prohens’ company agreed to sell 735 shares in water rights and supply Atacama Kozan with a total of 30 liters per second continuously throughout the year.

As a mechanism for control and verification, the contract stipulated that Prohens’ company would install a meter at the water intake point to confirm that the volume of water entering the operation matched what was agreed upon, thereby ensuring transparency in the supply.

However, what appeared to be a standard commercial agreement soon began to show cracks. Doña Berta Limitada never installed the meter it had committed to in the contract, an omission that would turn out to be crucial for the execution of the fraud. The absence of this measuring instrument made it impossible to verify whether the agreed flow was actually being delivered, opening the door to all sorts of irregularities.

Years later, in 2019, lawyer Carlos Hidalgo would appear before the Copiapó Guarantee Court to file a criminal complaint on behalf of Atacama Kozan against Rafael Prohens and Francisco Sánchez. Both were accused of defrauding the mining company through excessive payments for volumes of water that were never effectively delivered.

The magnitude of the fraud was significant: during the nearly five years that the operation was active, Prohens and Sánchez managed to divert $2,729,027 from Atacama Kozan, equivalent to nearly two and a half billion Chilean pesos at the time, a figure that illustrates the scale of the scheme.

This modus operandi would later be revealed as part of a vast embezzlement network orchestrated by Francisco Sánchez himself, who had climbed the ranks within the company to become general manager. During his ascent, he carefully constructed a network of suppliers that, on paper, provided various services to the company, but in reality, operated as a front to divert money to friends, partners, or even to his own pocket. Prohens’ company was just one piece of this complex corporate corruption puzzle.

Former Atacama Kozan employees who wished to remain anonymous provided El Ciudadano with details on how Sánchez operated. «There were services provided without justification, without traceability, and without detailed accounts. Sánchez would ask company suppliers to pay his personal bills, even for groceries,» they reported to this media.

However, the most severe issue, according to these testimonies, was how Sánchez took advantage of the linguistic and cultural barrier of the Japanese controllers of the mining company, «since he knew they did not understand Spanish well. The language barrier was undoubtedly one of the elements that facilitated his fraud.»

Doña Berta Limitada, Rafael Prohens’ company, was one of the many suppliers involved in the mechanism orchestrated by Sánchez. By March 2019, Atacama Kozan had disbursed more than five million dollars to Doña Berta for a significantly lower amount of water than was agreed upon in the contract, highlighting the substantial economic damage suffered by the company.

Lawyer Carlos Hidalgo was unequivocal about the original intentions of those involved when presenting the complaint: «From the moment the contract was signed, I believe there was always an intention to extract money from the company. There was never a desire to measure,» he stated at the time.

The indictment presented by the mining company also revealed that the largest amounts embezzled by Doña Berta Limitada occurred during the election campaign period leading up to the 2017 elections, in which Rafael Prohens was elected senator for Atacama.

From one year to the next, fraudulent payments from Atacama Kozan increased by 53.7%, right when Prohens needed financial backing for his Senate campaign.

Prohens’ Illegal Water Intake

Meanwhile, investigations into the fraud against the mining company opened another front against the then-senator. On April 4, 2019, agricultural businessman Germán Palavicino Porcile went to the Directorate General of Water of Atacama to file a formal complaint: members of the Copiapó River and Its Tributaries Surveillance Board—the organization grouping owners of water rights and responsible for managing and distributing the river’s waters—had installed unauthorized intakes, altering the natural water flow and harming other users.

Those illegal intakes were benefiting 107 users, mostly large farmers with economic interests in the area, in a practice that had been happening for years without control or sanction.

During the inspection carried out by the Directorate General of Water following this complaint, the Surveillance Board acknowledged they had allowed the installation of the intakes despite lacking the necessary authorization from the competent authority. The defense presented by the board members was, in the opinion of inspectors, unbelievable: they argued that the decision was made by agreement among their members, without acknowledging the illegality of their actions or the exclusive authority of the Directorate General of Water in this matter.

The inspection report prepared by the Directorate General of Water revealed that an illegally installed intake existed in the Mal Paso main canal, which was channeling water to the Atacama Kozan facilities, the same mining company defrauded by Prohens and Sánchez.

When officials reviewed the ownership of these water rights, they determined that they belonged to Doña Berta Limitada, Rafael Prohens’ company. This finding established a direct link between the illegal extraction of water and the fraud against the mining company, closing the circle of irregularities surrounding the then-senator.

To understand the seriousness of this situation, it is essential to grasp the legal framework governing water rights in Chile. As dictated by the Water Code, water rights, constituted in actions, can be traded in the market like any other private property, creating a highly speculative water market in the country. Once the Directorate General of Water grants a water right to a user, they may sell or transfer it to whomever they choose and at whatever price they like. However, the registration of such rights explicitly states which canal the water can be extracted from.

In the case of the shares held by Doña Berta Limitada, the situation was clear: these allowed its holder to extract water from the El Quemado and El Rodeo canals, located in areas near the Andes Mountains. However, the intake detected during the inspection in Mal Paso was extracting water from a location entirely different from the authorized canal, specifically in the Tierra Amarilla commune, 15 kilometers from Copiapó.

The report by the Directorate General of Water added a temporal detail that further aggravated the situation: the illegal intake at Atacama Kozan operated continuously for twelve months during 2016, 2017, and 2018, as well as the first five months of 2019. This means that throughout the period that Doña Berta Limitada supplied water to the mining company, the extraction was carried out from an unauthorized point. What the report indicated implies that the water Rafael Prohens had been supplying to Atacama Kozan through his company Doña Berta Limitada for the past five years, with which he was defrauding the mining company, was extracted illegally from the Copiapó River, constituting a double illegality: the fraud against the mining company and the unauthorized extraction of water.

Prohens’ Legal Contradictions

One of the most striking aspects of this case is the contradiction between the formal statements made by Rafael Prohens in the contract signed with Atacama Kozan and the reality of the facts that later emerged. In the text of the contract signed by Prohens on behalf of his company Doña Berta Limitada, and by Sánchez as general manager of Atacama Kozan, it expressly states that the then-senator «declares and guarantees» that the stipulations of the contract «do not infringe any law, regulation, ruling, order, or decree applicable to him, nor any judicial ruling, decree, or order from any Chilean court of justice or administrative authority applicable to him.» This sworn statement before a notary constituted a formal guarantee that the entire agreement was within the legal framework.

In the same vein, Prohens states in the deed that the water rights owned by his company are legal and that he «has all the necessary works to capture, conduct, deliver, and ultimately supply such water in an integral, complete, timely manner, and throughout the duration of the Contract.» Furthermore, the current senator expressly states in this public deed that «these works comply with all required permits and authorizations required by applicable legislation for that purpose,» reaffirming afterward that all information provided to Atacama Kozan about his Water Rights «is correct and true.»

Embargo of $314 Million

This judicial action facing Prohens is not his only brush with the law, which casts a further shadow on his potential diplomatic appointment.

In November 2024, the Santiago Court of Appeals ordered an embargo of more than 314 million pesos in a judicial case brought by Banco Itaú Chile S.A. against Agrícola Doña Berta Limitada, legally represented by Carolina Prohens García and Rafael Prohens Espinoza as joint debtors.

According to the judicial action, the bank requested the issuance of the execution order and embargo, including the indebted capital, adjustments, interest, and costs, as reported by El Zorro Nortino.

It is worth noting that the former senator is also under scrutiny for a judicial case against former Intendant Francisco Sánchez (RN), accused of alleged fraud against the mining company Atacama Kozan, in which both are implicated. Additionally, Prohens has been accused by Confinor S.A. for the alleged crime of aggravated bribery during Sebastián Piñera’s second government.

The former senator’s financial situation has also come under public scrutiny. Reports have suggested that the potential liquidity issues faced by the former RN president may also have affected his tax contribution payments.

A report by CHV Noticias published in April 2025 indicated that 22 deputies and 15 senators had overdue contributions for at least one of their properties; in Prohens’ specific case, the article noted that the parliamentarian owed 2 million pesos for three properties he owned.

In response to this situation, the businessman referred to this issue, justifying his inability to pay with a controversial statement: «I haven’t been able to pay it,» Prohens declared, thus explaining his delinquency in tax contributions.

Prohens currently finds himself in a particularly precarious legal situation. Having lost his bid for reelection as senator for Atacama, the parliamentarian no longer enjoys the senatorial immunity that previously protected him from potential legal actions against him, meaning he could face investigations and potential prosecutions resulting from these cases without any legal protection.

This comes at a time when his name appears on José Antonio Kast’s list for the position of ambassador to Costa Rica, raising questions about the criteria that the republican is employing to select his diplomatic representatives.