Fourth War Council: February 10, 1974.

In the War Council held on February 10, 1974, two militants of the Partido Comunista were sentenced to death:

Alberto YAÑEZ CARVAJAL, 31 years old, a prison official who, at the time of his arrest in the city of Iquique, had been dismissed from his position. Arrested on January 5, 1974, and taken to the Telecommunications Regiment, he was subsequently transferred to the Pisagua Prisoner Camp.

Luis TORO CASTILLO, 34 years old, a worker for the State Railway Company. Arrested on October 1, 1973, at his workplace.

Based on the general reasons already analyzed regarding the War Councils, and especially for the following reasons, it is possible to establish that various irregularities were committed in this proceeding, which involved disregarding the basic rights of Yáñez and Toro.

– The acts imputed to the defendants do not correspond to the crimes for which they were convicted. In effect, the defendants were convicted as authors of the crime provided for in No. 2 of Article 245, in relation to Article 246, of the Code of Military Justice, which stated: "shall be punished with the penalty of major military imprisonment in its maximum degree to death:… The military personnel who seduces Chilean troops or who is in the service of the Republic to defect to enemy ranks or deserts the flag in times of war"; Article 246 of the same Code stated that: "if a non-military Chilean or an individual of the rank and file incurs the crimes indicated in the previous article, the penalty may be reduced by one or two degrees depending on the circumstances, …"

– However, the sentence states regarding the acts imputed to the defendants: "…, the aforementioned individuals developed a plan that would have been carried out in the event of the outbreak of a civil war, a coup d'état, or another similar situation.

These maneuvers were named Plan 22, in the execution of which the seizure or occupation of 22 centers deemed vital in the city of Iquique would proceed, such as: churches, public buildings, industries, etc.

Furthermore, it contemplated the seizure of official vehicles and weaponry from the Prison Service, with the object of backing the execution of said plan with force. In order to provide themselves with more weaponry, the El Colorado Carabineros station and the No. 5 Carapangue Infantry Regiment would be assaulted; the indicated action also contemplated inciting the civilian population to offer resistance to the Armed Forces, with the consequent innocent victims that would have resulted from it." As can be seen, the acts attributed to them do not correspond to the crime for which they were convicted.

– As in the two previous Councils, the Tribunal rejected the allegations promoted by the defense attorneys, to the effect that the only means of evidence consisted of the confessions of the defendants.

In this regard, it is indicated: "The Council rejects said allegations because other evidence, in addition to the confession, emerges from the merits of the case file to prove the corpus delicti." The sentence does not even mention what that other evidence is.

In accordance with the aforementioned background information, this Commission has formed the conviction that Luis Toro and Alberto Yáñez were executed by State agents by virtue of a War Council that, having departed from the basic norms of due process, violated the human rights of the defendants.

The bodies of the executed were found in 1990 in the Pisagua mass grave.

The reading and analysis of the sentences of the Councils referred to above, as well as the statements of the lawyers who participated in them, have allowed this Commission to form the conviction of additional irregularities common to some of them, which are mentioned below:

– Regarding the defense, the regulations in force stipulated that the defense attorney had to present it in writing, indicating the means of evidence they intended to use and the list of witnesses and experts who were to testify.

Articles 183, 184, 189, 190, 191, and following of the Code of Military Justice, in force at the time, granted all necessary guarantees and deadlines to the defense, and even provided facilities to present evidence at the place where the Council functioned or outside of it, with one of its members having to be commissioned for that purpose.

– The defense attorneys state that, at least in the last three Councils, they had access to the case file and the accusation only a few hours before the holding of the respective Council. They were only able to speak with their clients for a few moments, and in many cases, it was not even possible to contact them, since some were assigned, ex officio, a high number of defendants to defend.

– Furthermore, they point out that, in fact, in the last three councils, the arguments could not be read or presented to the Tribunal through written documents, being permitted only to accompany a summary of the prepared argument.

– On the other hand, Pisagua was a Prisoner of War Camp, for which reason access to that facility was restricted to members of the Armed Forces and defense attorneys. Hence, it was impossible for witnesses to attend, which hindered the feasibility of proving the defendant's irreproachable prior conduct, a mitigating circumstance that should have influenced the penalty applied.

According to the lawyers' statements, at least in the second and third Council, a sworn statement before a notary was brought in which witnesses testified to the irreproachable prior conduct of the defendants, evidence that was rejected by the Council for not conforming to the law.

Having had the extracts of affiliation and records of those sentenced to death by the War Councils before it, this Commission can attest that, except for two of them, the other ten had no prior criminal record whatsoever.