The Santiago Court of Appeals sentenced four retired Army members for their responsibility in the qualified homicide of Claudio Arturo Lavín Loyola, Miguel Enrique Muñoz Flores, Manuel Benito Plaza Arellano, and Pablo Renán Vera Torres. These crimes were perpetrated on October 4, 1973, during the passage of the so-called Caravan of Death through the city of Cauquenes.

In a unanimous ruling (case file 56-2017), the Third Chamber of the appellate court—composed of ministers Carlos Gajardo, Alejandro Madrid, and acting lawyer Paola Herrera—confirmed the contested resolution in the part that sentenced Pedro Antonio Espinoza Bravo as the perpetrator of the crimes, with the declaration that the single sentence imposed is reduced to 20 years and one day of major imprisonment in its maximum degree.

Meanwhile, Jorge Godofredo Acuña Hahn must serve 3 years and one day of imprisonment as an accomplice to the four qualified homicides.

Likewise, the ruling overturned the first-instance sentence that had acquitted Juan Viterbo Chiminelli Fullerton, declaring him sentenced to 10 years and one day of imprisonment as a co-perpetrator of the qualified homicides of Lavín Loyola, Muñoz Flores, Plaza Arellano, and Vera Torres.

Similarly, Emilio Robert de la Mahotiere González was sentenced to 5 years of imprisonment as an accessory to the crimes.

Finally, the court decreed the acquittal of Enrique Anaximen Rebolledo Jara from the charges filed ex officio as an accomplice to the four qualified homicides; and approved the definitive dismissals of Rubén Castillo Whyte, due to mental incapacity; and of Sergio Carlos Arredondo González, Carlos Leonardo López Tapia, and Antonio Palomo Contreras, due to their deaths.

The decision was agreed upon, in the part confirming the civil decision, with a dissenting vote from Minister Madrid, who was of the opinion to overturn the first-instance ruling in this aspect and grant the compensation for damages requested by the plaintiffs.

During the investigation stage of the case, led by extraordinary visiting minister Patricia González Quiroz, the following facts were established: That on October 4, 1973, "a 'Puma' helicopter landed in Cauquenes, at the Andalién Regiment, with a group of military personnel under the command of the then Army General, Sergio Víctor Arellano Stark, delegated by the then Commander-in-Chief of the Army, Augusto Pinochet Ugarte, for the purpose of coordinating institutional criteria for internal government and judicial procedures, or to review and accelerate ongoing proceedings."

"That same day, some members of the delegation removed—without authority or legal right to do so, as they lacked any order or document authorizing them—Miguel Enrique Muñoz Flores, Manuel Benito Plaza Arellano, Pablo Renán Vera Torres, and Claudio Arturo Lavín Loyola from the Investigations Barracks of that city, transporting them to the 'El Oriente' estate in that locality, where they killed them with firearms," it adds.

Source: cauquenesnet.cl, April 16, 2020

Caravan of Death: Supreme Court sentences retired military officers for qualified homicides in Cauquenes

In a unanimous ruling, the Second Chamber of the high court sentenced Pedro Espinoza Bravo and Juan Viterbo Chiminelli Fullerton to 20 years and 10 years and one day of effective imprisonment, respectively, as perpetrators of the crimes; meanwhile, Emilio Robert de la Mahotiere González must serve 5 years of incarceration as an accessory.

The Supreme Court sentenced four retired Army officers for their responsibility in the qualified homicide of Miguel Enrique Muñoz Flores, Manuel Benito Plaza Arellano, Pablo Renán Vera Torres, and Claudio Arturo Lavín Loyola. These crimes were perpetrated on October 4, 1973, in the commune of Cauquenes within the framework of the so-called "Caravan of Death."

In a unanimous ruling (case file 72.024-2020), the Second Chamber of the high court—composed of ministers Haroldo Brito, Manuel Antonio Valderrama, Jorge Dahm, Leopoldo Llanos, and acting lawyer Diego Munita—sentenced Pedro Octavio Espinoza Bravo and Juan Viterbo Chiminelli Fullerton to 20 years and 10 years and one day of effective imprisonment, respectively, as perpetrators of the crimes; meanwhile, Emilio Robert de la Mahotiere González must serve 5 years of incarceration as an accessory.

In the resolution, the Criminal Chamber, having accepted the lower court's application of the mitigating factor of "half-prescription" or gradual prescription of the sentence regarding the accused, committed an error of law, which "(...) has substantially influenced the operative part of the ruling, insofar as its application allowed them to reduce the sentence to be imposed, in a case not permitted by law."

"That, in the same sense, it must be kept in mind that by Decree Law No. 3, of September 11, 1973, a state of siege was established due to 'internal commotion,' a concept that was subsequently fixed by Decree Law No. 5, of September 12, 1973, which states that the state of siege due to internal commotion must be understood as a 'State or Time of War' for the application of penalties and all other effects; that these broad effects also encompass circumstances of exemption, mitigation, aggravation, and the extinction of responsibility; that this state was maintained until September 11, 1974, when Decree Law No. 641 was issued, which deemed it unnecessary to maintain the declaration of internal war, noting that the entire territory of the Republic was in a State of Siege, in a degree of internal defense, for a period of six months, a period that was renewed for another six months by Decree Law No. 1.181, of September 10, 1975, which declared that the country was in a 'state of siege, in a degree of internal security'; that, consequently, the State or Time of War was in effect at least until September 10, 1975, a date that makes the 1949 Geneva Conventions applicable, ratified by Chile and published in the Official Gazette on April 17, 1951; that, thus, with the 1949 Geneva Conventions being in force and fully valid, their Article 3 becomes applicable, regarding the protection of civilians in time of war, which obliges the contracting States, in the event of an armed conflict not of an international character occurring in their territory (which is precisely the situation of Chile during the period between September 12, 1973, and March 11, 1975), to provide humanitarian treatment, even to combatants who have laid down their arms, without any unfavorable distinction, prohibiting, at any time and in any place, among others: a) violence to life and person, and b) outrages upon personal dignity," the ruling states.

The resolution adds: "Likewise, that international instrument records, in its Article 146, the commitment of its signatories to take all necessary legislative measures to set appropriate penal sanctions to be applied to persons who commit, or order to be committed, any of the grave breaches defined in the Convention, as well as to search for such persons, having to bring them before their own courts and take the necessary measures to cease acts contrary to the provisions of the Agreement, which in its Article 147 describes what is understood by grave breaches, namely, among them, willful killing, torture or inhuman treatment, willfully causing great suffering or serious injury to body or health, unlawful deportation or transfer, and unlawful confinement."

For the Criminal Chamber: "Consequently, the State of Chile imposed upon itself, by signing and ratifying the aforementioned Conventions, the obligation to guarantee the safety of persons who might have participation in armed conflicts within its territory, especially if they are detained, with measures tending to protect the grievances committed against specific persons or to achieve impunity for their perpetrators being forbidden, keeping especially in mind that international agreements must be fulfilled in good faith and, insofar as the Pact seeks to guarantee the essential rights that arise from human nature, it has preeminent application, since this Court, in repeated sentences, has recognized that the internal sovereignty of the State of Chile recognizes its limit in the rights that emanate from human nature, values that are superior to any norm that the authorities of the State may provide, including the Constituent Power itself, which prevents them from being ignored and, even less, violated."

"That, consequently, the application of the figure of 'half-prescription' or gradual prescription of the sentence, contemplated by Article 103 of the Penal Code, is not admissible in the case of crimes against humanity, since the aforementioned classification obliges the consideration of International Human Rights Law regulations, which exclude the use of both total prescription and so-called half-prescription, understanding such institutes as closely linked in their foundations and, consequently, contrary to the regulations of jus cogens originating from that sphere of International Criminal Law, which reject impunity and the imposition of sentences not proportional to the intrinsic gravity of the crimes, based on the passage of time," it affirms.

"That, such being the case, by having accepted the mitigating factor of 'half-prescription' or gradual prescription of the sentence regarding the accused, the lower court judges incurred an error of law that has substantially influenced the operative part of the ruling, insofar as its application allowed them to make a reduction of the sentence to be imposed, in a case not permitted by law, which is why the appeals for cassation on the merits under study will be accepted regarding the present cause," it concludes.

In the case, Jorge Godofredo Acuña Hahn was also sentenced to 3 years and one day of imprisonment, with the benefit of supervised release, as an accomplice to the crimes, and his defense did not file an appeal for cassation before the Supreme Court.

In the civil aspect, the Second Chamber overturned the contested sentence, which had accepted the exception of res judicata filed by the defense, and instead ordered the State to pay compensation of $60,000,000 (sixty million pesos) for moral damages to José Manuel Lavín Benavente, son of the victim Lavín Loyola.

Puma Helicopter

In the first-instance ruling, extraordinary visiting minister Patricia González Quiroz established the following facts: "That on October 4, 1973, a Puma helicopter landed in Cauquenes, at the Andalién Regiment of said city, with a group of military personnel, under the command of the then Army General, Sergio Víctor Arellano Stark, delegated by the person who was at the date the Commander-in-Chief of the Army, Augusto Pinochet Ugarte, for the purpose of fulfilling tasks of coordinating institutional criteria for internal government and judicial procedures, and of reviewing or accelerating ongoing processes. That same day, some of the members of the delegation removed—without authority or legal right to do so, as they lacked any order or document authorizing them—Miguel Enrique Muñoz Flores, Manuel Benito Plaza Arellano, Pablo Renán Vera Torres, and Claudio Arturo Lavín Loyola from the Investigations barracks of the city, whom they transported to the 'El Oriente' estate of said locality, where they killed them with firearms."

Source: Judiciary, March 30, 2023