In a unanimous ruling, the Second Chamber of the high court confirmed the sentence that condemned Alberto Roque del Sagrado Corazón Badilla Grillo and Pedro Alcayaga Zúñiga to 12 years in prison as authors of qualified homicide, and to 541 days of incarceration as authors of the application of torture.

Meanwhile, Gastón Silva Cañas was sentenced to 5 years in prison, with the benefit of supervised release, as an accessory to the qualified homicide.

The Supreme Court rejected the appeals for cassation on the merits filed against the sentence that convicted three retired Navy personnel for their responsibility in the crimes of application of torture and qualified homicide of Spanish citizen Enrique López Olmedo. These illicit acts were perpetrated in November 1977 in the city of Valparaíso.

In a unanimous ruling (case file 43.575-2020), the Second Chamber of the high court—composed of justices Manuel Antonio Valderrama, Leopoldo Llanos, María Teresa Letelier, Jorge Zepeda, and Eliana Quezada—confirmed the sentence that condemned the appellants Alberto Roque del Sagrado Corazón Badilla Grillo and Pedro Alcayaga Zúñiga to 12 years in prison as authors of qualified homicide, and to 541 days of incarceration as authors of the application of torture.

Meanwhile, Gastón Silva Cañas was sentenced to 5 years in prison, with the benefit of supervised release, as an accessory to the qualified homicide.

In the resolution, the Supreme Court rejected both the exception of res judicata and the application of the 1978 Amnesty Decree Law and the statute of limitations on criminal action, as argued by the defense.

"That, in that line of reasoning, it should be noted that both national law and international law contemplate exceptions to the institution of res judicata that emanates from final judgments," the ruling states.

The resolution adds: "Indeed, in the former, final judgments that produce only formal res judicata, or those that produce so-called provisional substantial res judicata, are excepted from such effect; in the same way, it is provided that final judgments obtained fraudulently may be set aside through the action of review; and, finally, there is consensus regarding depriving of the effect of res judicata those final judgments that have been issued in a process in which there was no summons of the defendant and in which the defendant did not—for that reason—appear at the trial, preventing the formation of the legal-procedural relationship, producing what is called in doctrine 'apparent res judicata'."

"That, for its part," it continues, "in International Human Rights Law, the doctrine has been established—reflected in rulings of the Inter-American Court of Human Rights (hereinafter, Inter-American Court of HR)—that fraudulent res judicata does not produce the effect that is proper to the institution; and that character applies to those cases where, in the substantiation of the trial that culminated in the final definitive judgment, the requirements of due process were not met."

"In this regard, it has been said: 'In accordance with the Convention and with what the Inter-American Court has expressed on repeated occasions, the States parties are obligated to provide effective judicial remedies to victims of human rights violations (Article 25), remedies that must be substantiated in accordance with the rules of due legal process (Article 8.1), all within the general responsibility, incumbent upon the States themselves, to guarantee the free and full exercise of the rights recognized by the Convention to every person who is within their jurisdiction (Article 1.1) (Inter-American Court of HR, 1988, para. 91; 2008a, para. 77; 2008b, para. 34)'," it cites.

"Following the previous pronouncement, Inter-American jurisprudence since the year 2000 has determined, in a series of rulings, the scope regarding what must be understood as fraudulent res judicata. E.g., 'in the case of Carpio Nicolle et al. vs.

Guatemala, the Inter-American Court argued that international regulations examine what is known as this type of fraud—Article 20 of the Rome Statute of the International Criminal Court (1998); Article 20 of the Statute of the International Tribunal for Rwanda (1994) and Article 9 of the Statute of the International Tribunal for the former Yugoslavia (1993)—and expressed that this defective activity results from a trial in which the rules of due process have not been respected, or when the judges did not act with independence and impartiality (Inter-American Court of HR, 2004, para. 131)'," it notes.

For the high court: "(...) it follows from what has been stated above that even though it has been repeatedly said by the Inter-American Court of HR that in matters of violation of fundamental rights—as is the case in the present proceedings—victims must be repaired by the States in a comprehensive manner, for which actions tending to such reparation must be made available to them so that they may exercise them in a due process in which all procedural guarantees of a constitutional nature are respected, it is no less true that said parameters and requirements were not met in the first trial that has been invoked here as the basis for the exception of res judicata."

"Indeed," it delves further, "just as the eleventh ground of the first-instance ruling concluded, the investigation carried out in the case followed before the Naval Justice system in 1977 was poorly focused from the beginning and what was attempted was to give a veneer of legality to a situation that was totally irregular and constituted a serious crime.

For the dismissal issued to have legitimate effects, it must be supported by an institutional legal situation that makes it appropriate, both from an adjective and substantive point of view. In the case at hand, it was the apprehension of the victim for purely political reasons, since he was not charged with participation in any specific act, according to the legislation in force at that time, that would allow for his apprehension and subsequent murder.

On the other hand, the same bodies that were in charge of the investigation of those events that supposedly endangered the internal security of the country were in charge, in turn, through an improper and irregular splitting, of administering justice through bodies that belonged to the same armed institution."

"It was evident then, that the dismissal issued under those conditions, that is, by persons belonging to the same branch as the accused, could have some veneer of impartiality and objectivity, such that the denounced vice lacks foundation and cannot prosper," it highlights.

Amnesty

Likewise, the Criminal Chamber maintains: "That, with regard to the non-application of the 1978 Amnesty Decree Law and the statute of limitations on criminal action, it is convenient to keep in mind that, according to the reiterated doctrine of this Supreme Court, our country, upon signing and ratifying the Geneva Conventions of 1949, assumed the commitment to adopt all necessary legislative measures in order to establish the appropriate criminal sanctions to be applied to persons who commit, or order the commission of, any of the grave breaches defined in that international instrument; the States Parties are also obligated to search for such persons, having to bring them before their own courts and to take the necessary measures to cease acts contrary to the provisions of the Agreement. The State of Chile imposed upon itself the duty not to resort to measures tending to protect the grievances committed against specific persons or to achieve the impunity of their authors, renouncing the power to exonerate itself or another State from responsibilities incurred by them, taking especially into account that international agreements must be fulfilled in good faith."

"That, in the exercise of its sovereignty, our Nation may grant amnesty for crimes that are committed and are subject to its authority. However, if it has limited its own power regarding certain illicit acts in an international commitment, it cannot exceed said self-imposed limit and thus contradict the national and universal order, much less circumvent the aforementioned Conventions, which, through their signing and ratification, acquired fully binding effects.

It is, therefore, excluded from failing to comply with the obligations assumed, without prior denunciation of those instruments, it being inadmissible that, having contracted such duties of criminal prosecution and judgment, one then tries to evade their compliance by invoking ordinary national legislation," the resolution affirms.

"In this perspective," the Second Chamber reasons, "the amnesty granted by Decree Law 2.191 can be clearly understood as an act of self-exoneration of criminal responsibility for grave human rights violations—among them, homicide and torture in all its forms—since it was issued after the agreed commitment and after the perpetration of the events, thus guaranteeing the impunity of those responsible, which gravely violates Article 148 of the IV Geneva Convention; in such virtue, it is not possible to accept that self-exoneration in the case of such reprehensible breaches of the protection of the fundamental rights of the person, committed during the validity of the cited regulations."

"That, on the other hand, given their nature, the investigated facts constitute a crime against humanity, because they occurred in a context of grave, massive, and systematic human rights violations, verified by State agents, constituting the victim in this case and many others an instrument within a policy on a general scale of exclusion, harassment, persecution, or extermination of a group of numerous compatriots and foreign citizens who, in the period immediately following September 11, 1973, were labeled as ideologically belonging to the deposed political regime or who, for any circumstance, were considered suspicious of opposing or hindering the realization of the social and political construction devised by those holding power, guaranteeing impunity to the executors of said program through non-interference in their methods, both with the concealment of reality before the request of the ordinary courts of justice for relevant reports, and through the use of state power to persuade local and foreign public opinion that the complaints formulated to that effect were false and responded to a campaign tending to discredit the authoritarian military regime. Thus, persons who use state means and instruments to perpetrate such grave crimes against the fundamental rights and freedoms of the individual wrap themselves in a mantle of impunity woven with resources belonging to the State," the resolution records.

"The principles according to which the impossibility of granting them amnesty, of establishing circumstances excluding responsibility, or of declaring their statute of limitations is enshrined—institutions that intend to prevent the investigation and sanction of those responsible—determine that the conventions, pacts, and treaties in which human rights and guarantees are recognized at the level of national courts enjoy primacy.

From this postulate, it follows that, according to a progressive and finalist interpretation of the Fundamental Charter, they prevail over the internal legal order, since it is understood that they prefer, perfect, and complement it, being, therefore, regulations that can be invoked by all individuals, given the moral and legal commitment of the State before the international community to respect, promote, and guarantee the fundamental rights of the individual.

It is for this reason that in this type of transgression it is not possible to invoke the Amnesty Decree Law and the statute of limitations on criminal action, because international human rights law prohibits it, which is why the cause under study cannot prosper," the ruling concludes.

Trap

In the first-instance ruling, the visiting judge of the Valparaíso Court of Appeals, Jaime Arancibia Pinto, established the following facts:

"That on November 11, 1977, the victim, Enrique López Olmedo, of Spanish nationality, was detained by agents of the CIRE of the Chilean Navy, in an operation (a 'ratonera' or trap) carried out at the home of a relative of his, located in the Playa Ancha sector of Valparaíso.

In said place, after his detention, Enrique López Olmedo was tied to a chair and, blindfolded, was interrogated and tortured by his captors for approximately three hours. After that, he was taken out of the house and carried by the CIRE agents in an unknown direction, already with evident signs of mistreatment, and subsequently, a few blocks from the house, he was riddled with bullets by the agents who had participated in that operation, the victim being subsequently transported to the Naval War Academy where the CIRE operated, and finally being taken to the Naval Hospital of Valparaíso, arriving deceased at that hospital center, with it being determined that the cause of his death was acute anemia."

Source: adn.cl, June 27, 2023