The Temuco Court of Appeals confirmed the sentence condemning 20 retired military personnel and civilians for their responsibility in the qualified homicides of Hernán Henríquez Aravena and Alejandro Flores Rivera, and the illegal coercion of Jorge Silhi Zarzar, Víctor Hugo Painemal Arriagada, and Sergio Riquelme Inostroza, events that occurred between September and October 1973 at the Maquehue Air Base in Temuco.

The Judiciary reported that the First Chamber of the appellate court confirmed the sentence condemning Crisóstomo Ferrada Carrasco, Enrique Rebolledo Sotelo, Heriberto Pereira Rojas, Jorge Valdebenito Isler, Jorge Soto Herrera, Luis Yáñez Silva, Luis Soto Pinto, and Leonardo Reyes Herrera to 20 years in prison for their responsibility as perpetrators of the crimes.

Meanwhile, Luis Quezada Chandía must serve a 17-year prison sentence for his responsibility as a perpetrator of the homicides of Henríquez Aravena and Flores Rivera.

Likewise, Óscar Alfredo Alfonso Podlech Michaud was sentenced to 12 years in prison for his responsibility as a perpetrator of the homicide of Hernán Henríquez Aravena.

Finally, Pablo Alister Contreras will serve a 4-year prison sentence as an accessory to the homicides and an accomplice to the illegal coercion; and Jaime Echenique Seco, Berthold Bohn Sauterel, Aníbal Tejos Echeverría, Enrique Isaacs Casacuberta, Antonio Montserrats Mena, Rodolfo Schmied Callejón, Víctor Manuel Volante Leonardi, Xavier Pérez Chavez, and Rogelio Olivares Torruela were sentenced to 3 years and one day in prison as accessories to the crimes.

In civil matters, the compensation that the State must pay to the victim Enrique Sihli Zarzar was increased to $50,000,000, while the amounts for the rest of the victims and their families were maintained.

Arguments The Temuco Court shared the arguments set forth in the first-instance judgment by the minister visiting for human rights cases, Álvaro Mesa Latorre, but dissented regarding the benefits granted to those convicted as accomplices and accessories, determining that they meet the requirements to access the benefit.

“Because the requirements for its application are met, the substitute sentence of intensive supervised release will be granted to Pablo Aquiles Alister Contreras, Aníbal Arturo Tejos Echeverría, Enrique Alcides Isaacs Casacuberta, Antonio Sergio Monserrat Mena, Xavier Fernando Pérez Chávez, and Jaime Mauricio del Corazón de Jesús Echeñique Seco.

Indeed, said defendants are responsible as accessories to the crimes of simple homicide and illegal coercion, and as an accessory to the crimes of simple homicide and accomplice to the crime of illegal coercion, in the case of Alister Contreras.

Although Law 18.216 contemplates prohibitions for the granting of the substitute sentences established in said legal body, in the case of certain crimes, including those contemplated in articles 150 A, 150 B, and 391 of the Penal Code, such restrictions are only established regarding the perpetrators of said illicit acts, and consequently do not reach accomplices and accessories,” they state.

Source: enestrado.com, December 21, 2020

Minister Álvaro Mesa indicts retired FACh captain and nurse for the qualified kidnapping of a university student

The minister on special assignment for human rights violation cases, Álvaro Mesa Latorre, issued indictment No. 135 on the matter and brought charges against retired Air Force officer Leonardo Reyes Herrera and civilian Crisóstomo Hugo Ferrada Carrasco for their responsibility in the crime of qualified kidnapping of Jorge Eduardo Calderón Otaíza.

The illicit act was perpetrated starting on September 30, 1973, at the Maquehue Air Base in the commune.

In the resolution (case file 114.033), the visiting minister resolved that, because the defendants are currently serving sentences in a different case, preventive detention will not be ordered against them for the time being.

“(…) given the merits from which it is clear that the freedom of the defendants constitutes a danger to the security of society; also taking into account the probable legal sanction for the crime in which they are attributed participation, and having seen the provisions of article 363 of the Code of Criminal Procedure, the benefit of provisional release will not be granted to them.

Given the fact that the defendants Leonardo Reyes Herrera and Crisóstomo Hugo Ferrada Carrasco are serving sentences at the Colina I Penitentiary Compliance Center of the Gendarmería de Chile, the application of the precautionary measure of preventive detention is suspended for now,” the resolution states.

Human Wreck During the investigation stage of the case, Minister Mesa Latorre managed to gather sufficient evidence to establish the following facts:

A.-

That immediately after the military coup on September 11, 1973, the commander of Helicopter Group No. 3 of the Maquehue Air Base, Colonel Andrés Pacheco Cárdenas (deceased), delegated operational command of the base to the second-in-command Benjamín Fernández Hernández (deceased) in order to assume duties at the CAJSI (Jurisdictional Action Command for Internal Situations), whose office was located at the No. 8 ‘Tucapel’ Infantry Regiment in the city of Temuco.

However, he never formally relinquished command of the aforementioned unit, attending that place daily to determine the actions to be followed.

B.-

That starting that same day, the new local authority called several Air Force reserve officers, who were civilian pilots, to active duty, as well as other retired officers who joined the Maquehue Base contingent and who, according to their rank, began to fulfill the same operational functions as the rest of the line officers and non-commissioned officers, at least during the most intense period of September and October 1973, according to the testimony of Berthold Erwin Bohn Sauterel.

These functions included integrating patrols destined to enforce the curfew, guarding public service facilities and bridges, participating in operations of varying magnitude whose purpose was to raid homes and carry out arrests of people opposed to the new regime or supporters of the outgoing administration, integrating helicopter crews for the purpose of transporting detainees from one point of the region to another, piloting private light aircraft to monitor the coastal zone, and performing rounds or guard duty officer shifts inside the air base.

These latter shifts could have been between 12 and 24 hours. It should be noted that a large part of the Air Force reserve officers were also appointed as intervenors in different state companies, so they had to reconcile both activities during the period indicated above, without ceasing to fulfill these tasks, since each branch of the armed forces and order present in the city designated an intervenor per company, so that activities in the intervened companies were always well covered, according to the testimonies of Pablo Aquiles Alister Contreras.

C.- That given the need to systematize and coordinate activities aimed at the detention of people and their transfer to the Maquehue air base for subsequent interrogation, the second-in-command Benjamín Fernández Hernández organized a specially selected group to deal with intelligence and political prisoner issues, a group that was under his command and that included Lieutenants Ángel Campos Quiroga (deceased), Jorge Freygang Campaña (deceased), Captain Leonardo Reyes Herrera, Sergeant Orlando Garrido Riquelme (deceased), several members of the permanent staff of different ranks among whom are, among others, Luis Alberto Soto Pinto, Heriberto Pereira Rojas, Luis Osmán Yáñez Silva, Jorge Aliro Valdebenito Isler, Jorge Eduardo Soto Herrera, and Enrique Rebolledo Sotelo; and a civilian employee who had a nursing specialty named Crisóstomo Hugo Ferrada Carrasco. This group, from that date on, gradually stopped fulfilling the functions proper to their specialty to devote themselves to the tasks assigned to them by the high command of the Maquehue base, acquiring a special status, since they did not wear uniforms, and in the daily attendance records they appeared on official duty, according to the testimony of Nelson Luis Agustín Seckel Catalán.

D.-

This special group received the alternating and sporadic collaboration of line and reserve officers who, motu proprio or by an express order received, joined on some occasions the patrols destined to raid homes and arrest people or witnessed and collaborated in the interrogations of the detainees who remained inside the base.

The people detained in the various operations were kept in the guard facilities, in the infirmary, in two offices located in the Administrative or Command building, in an old wooden tower that was previously used to store unused material, and which after September 11 was enabled for the indicated purposes, and also on some occasions they were moved to a hangar located inside the base.

E.-

Many of these detainees remained held at the Maquehue base for a period of no less than a week, during which time they were interrogated and tortured by the aforementioned officers and non-commissioned officers, in addition to having been administered, in certain cases, drugs such as pentothal, so that they would confess their alleged crimes.

Said drug was administered by the base nurse. Also during that time, the detainees were taken out to the unit's courtyard during the day so they could rest a little or were taken to the bathrooms existing in the unit, an opportunity in which they were seen and attended to by conscript soldiers who were able to verify the deteriorated physical state in which these people were.

Some of these conscripts had to perform sentry duties to guard the place where the detainees were located. Finally, the aerial operations carried out in helicopters on some occasions consisted of transporting army troops to locations in the IX region whose mission was to arrest people opposed to the military regime.

These people were transported to the Maquehue air base and also to the No. 8 ‘Tucapel’ Infantry Regiment of this city, with the aircraft transporting them landing at both units, as the case may be. Likewise, transfers of detainees were carried out by land from the Maquehue air base to the Tucapel regiment, which were carried out by members of the special group described above and also on some occasions by reserve officers who received an order to that effect.

That Jorge Eduardo Calderón Otaíza, 28 years old, an employee of the National Public Employees Fund, a Commercial Engineering student at the University of Temuco, and a militant of the Socialist Youth, was arrested at his home located at 455 Sarmiento Street in Padre Las Casas, where he lived with his family, by carabineros from the Padre Las Casas Police Station on September 30, 1973, being subsequently transferred to the Maquehue Air Base of the Chilean Air Force, a facility where he was seen in deteriorated physical conditions, according to the testimony of Heriberto Rivas Alarcón, a Chilean Air Force official, who knew Jorge Eduardo Calderón Otaíza because they were neighbors and friends on Sarmiento Street in Padre Las Casas, since he also maintained a romantic relationship with Calderón Otaíza's sister, named Mónica, and they also played soccer together.

F.- That as indicated in Considering 38 above, Heriberto Rivas Alarcón, in statements in September 1973, after the 11th, saw Jorge Eduardo Calderón Otaíza detained and lying on the grass in front of the Administrative Pavilion, who looked very thin and with a tired face.

Because of this, and since he could not talk to him, he secretly gave him small squares of sugar. After this, he did not see his friend again, so he requested to speak with Lieutenant Leonardo Reyes, who was in charge of the base's intelligence group together with Lieutenant Schmied and the reserve officer Sandoval Poo (deceased).

It was then that Leonardo Reyes Herrera authorized him to talk to him, also asking Reyes Herrera if there was any possibility of releasing his friend Calderón Otaíza, to which Lieutenant Leonardo Reyes Herrera replied that it was his life or Calderón Otaíza's, after which he withdrew quickly and never asked about Jorge Eduardo Calderón Otaíza again.

G.- That, on the other hand, Héctor Gutiérrez Palma, a second corporal of the Chilean Air Force starting August 1, 1973, as stated in his declarations, knew Jorge Eduardo Calderón Otaíza from high school, as he was known for being a sympathizer of Salvador Allende's government.

It is the case that while Gutiérrez Palma was waiting for dental care in the air base infirmary, two air base officials suddenly entered, making everyone inside the infirmary leave, with him remaining inside the infirmary despite the commotion that formed.

The officials were holding a bloodied man, with many bruises on different parts of his body, whom he was able to identify as Jorge Eduardo Calderón Otaíza, who was convulsing, at which moment the door of the infirmary opened and he was received by the nurse Ferrada, of whom he is not sure if he was still a second corporal or already a civilian employee with officer rank, from which moment he knew nothing more about Jorge Eduardo Calderón Otaíza.

H.- That Héctor Gutiérrez Palma adds that when he saw Calderón Otaíza he was a human wreck; that he thought he was dead; he was moving like jelly, due to a reflex act that the body maintains, independently of brain activity; he could not fend for himself, and that it was very difficult for him to recognize him, even though he knew him very well; that those who took him to the infirmary did so from the place where they were interrogating him, which was about 30 meters from the infirmary, they carried him in their arms, he could not walk, and those who carried him were officials from the same air base, whose identities he does not remember. That he, by the turns of life, stayed there for no reason, and that those who brought Calderón Otaíza together with the nurse Ferrada must have seen him, but they did not ask him anything nor did they make him leave; that he was like invisible to them, also pointing out that he and Ferrada entered the institution together, which is why he knew him well.

I.- That to this date, no public official of the Armed Forces, especially the command of the Chilean Air Force that served at the time of the events, has provided any information to the respective authority in relation to what happened to Jorge Eduardo Calderón Otaíza and the location of his body, maintaining to this day the concealment of all types of information regarding the events that have been mentioned in the preceding paragraphs.

Likewise, according to information from the case, there was no instruction for investigations regarding the events that surrounded the detention and qualified kidnapping of Jorge Eduardo Calderón Otaíza.

Source: pjud.cl, December 21, 2022

Minister Álvaro Mesa issues indictment against retired Air Force official and former Maquehue Air Base nurse for qualified kidnapping of

In the resolution (case file 114.033), Minister Mesa Latorre identified the retired Air Force officer and the then-nurse of the Maquehue base as perpetrators of the crime against humanity committed against the engineering student and employee of the Caja Nacional de Empleados Públicos.

The minister on extraordinary assignment for human rights violation cases in the jurisdictions of Temuco, Valdivia, Puerto Montt, and Coyhaique, Álvaro Claudio Mesa Latorre, issued indictment No. 89 in the cases he is processing and filed charges against retired Lieutenant Leonardo Reyes Herrera and Crisóstomo Hugo Ferrada Carrasco for their responsibility in the crime of aggravated kidnapping of Jorge Eduardo Calderón Otaíza.

This illicit act was perpetrated starting in September 1973 at the Maquehue Air Base of the Chilean Air Force in Temuco.

In the resolution (case file 114.033), Minister Mesa Latorre identified the retired Air Force officer and the then-nurse of the Maquehue base as perpetrators of the crime against humanity committed against the engineering student and employee of the Caja Nacional de Empleados Públicos.

During the investigation stage of the case, the visiting minister managed to gather sufficient evidence to establish the following facts:

“A.- That immediately following the military pronouncement on September 11, 1973, the commander of Helicopter Group No. 3 of the Maquehue Air Base, Colonel Andrés Pacheco Cárdenas (deceased, as recorded on p. 1000, Vol.

III), delegated the operational command of the base to the second-in-command, Benjamín Fernández Hernández (deceased, as recorded on p. 1001, Vol. III), in order to assume duties at the CAJSI (Command for Jurisdictional Action regarding Internal Situations), whose office was located at the No. 8 “Tucapel” Infantry Regiment in the city of Temuco.

However, he never formally relinquished command of the aforementioned unit, attending that location daily to determine the actions to be followed.

B.- That starting that same day, the new local authority called several Air Force Reserve officers, who were civilian pilots, to active duty, along with other retired officers who joined the Maquehue Base contingent and who, according to their rank, began to fulfill the same operational duties as the rest of the line officers and non-commissioned officers, at least during the most critical period of September and October 1973, according to the testimony of Berthold Erwin Bohn Sauterel, from p. 262 to p. 264 (Vol.

I). These duties included joining patrols intended to enforce curfew, guarding public service facilities and bridges, participating in operations of varying magnitude whose purpose was to raid homes and carry out the detention of persons opposed to the new regime or supporters of the outgoing administration, joining helicopter crews for the purpose of transporting detainees from one point of the region to another, piloting private light aircraft to monitor the coastal zone, and performing shifts as duty officer or guard inside the air base.

These latter shifts could last between 12 and 24 hours. It should be noted that a large portion of the Air Force reserve officers were also appointed as intervenors in different state companies, so they had to balance both activities during the aforementioned period without ceasing to fulfill these tasks, since each branch of the armed forces and order present in the city designated an intervenor per company, meaning activities in the intervened companies were always well-covered, according to the testimonies of Pablo Aquiles Alister Contreras from p. 259 to p. 261 (Vol.

I), and p. 308 (Vol. I).

C.- That given the need to systematize and coordinate activities aimed at the detention of persons and their transfer to the Maquehue air base for subsequent interrogation, the second-in-command Benjamín Fernández Hernández organized a specially selected group to handle intelligence matters and political detainees.

This group was under his command and included Lieutenants Ángel Campos Quiroga (deceased, as recorded on p. 984, Vol. III), Jorge Freygang Campaña (deceased, as recorded on p. 985, Vol. III), Captain Leonardo Reyes Herrera, Sergeant Orlando Garrido Riquelme (deceased, as recorded on p. 986, Vol.

III), several members of the permanent staff of various ranks including, among others, Luis Alberto Soto Pinto, Heriberto Pereira Rojas, Luis Osmán Yáñez Silva, Jorge Aliro Valdebenito Isler, Jorge Eduardo Soto Herrera, and Enrique Rebolledo Sotelo; and a civilian employee who held a nursing specialty named Crisóstomo Hugo Ferrada Carrasco.

From that date on, this group gradually ceased to perform the functions proper to their specialty to focus on the tasks assigned to them by the high command of the Maquehue base, acquiring a special status, as they did not wear uniforms and appeared on the daily attendance roster as being on special service (according to the testimony of Nelson Luis Agustín Seckel Catalán from p. 439 to p. 442, Vol.

II).

D.- This special group received the alternating and sporadic collaboration of line and reserve officers who, motu proprio or by express order, joined in some instances the patrols intended to raid homes and detain persons, or witnessed and collaborated in the interrogations of the detainees who remained inside the base.

The persons detained in the various operations were kept in the guard facilities, the infirmary, in two offices located in the Administrative or Command building, in an old wooden tower that was previously used to store unused material and which, after September 11, was adapted for the aforementioned purposes, and on some occasions, they were also moved to a hangar located inside the base.

E.- Many of these detainees remained held at the Maquehue base for a period of no less than a week, during which time they were interrogated and tortured by the aforementioned officers and non-commissioned officers, in addition to being administered, in certain cases, drugs such as Pentothal so that they would confess to their alleged crimes.

Said drug was administered by the base nurse. Also during that time, the detainees were taken out to the unit's courtyard during the day to rest a little or were taken to the bathrooms existing in the unit, an opportunity during which they were seen and attended to by conscript soldiers who were able to verify the deteriorated physical state in which these persons were found.

Some of these conscripts had to perform sentry duties to guard the place where the detainees were kept. Finally, the aerial operations carried out in helicopters on some occasions consisted of transporting Army troops to localities in the IX Region whose mission was to detain persons opposed to the military regime.

These persons were transported to the Maquehue air base and also to the No. 8 “Tucapel” Infantry Regiment of this city, with the aircraft transporting them landing at both units, as the case may be. Likewise, transfers of detainees were carried out by land from the Maquehue air base to the Tucapel regiment, which were carried out by members of the special group described above and also on some occasions by reserve officers who received an order to that effect.

F.- That Jorge Eduardo Calderón Otaíza, 28 years old, an employee of the Caja Nacional de Empleados Públicos, a Commercial Engineering student at the University of Temuco, and a militant of the Socialist Youth, was detained at his home located at Calle Sarmiento No. 455 in Padre Las Casas, where he lived with his family, by carabineros from the Padre Las Casas police station on September 30, 1973, and was subsequently transferred to the Maquehue Air Base of the Chilean Air Force, a facility where he was seen in deteriorated physical conditions, according to the testimony of Heriberto Rivas Alarcón from p. 148 to p. 149 (Vol. I) and p. 200 (Vol. I), an official of the Chilean Air Force who knew Jorge Eduardo Calderón Otaíza because they were neighbors and friends on Calle Sarmiento in Padre Las Casas, since he also maintained a romantic relationship with Calderón Otaíza's sister, Mónica, and they also played soccer together.

G.- That as indicated in the preceding Consideration 35, Heriberto Rivas Alarcón, in statements from p. 148 to p. 149 (Vol. I), p. 200 (Vol. I), and p. 1081 to p. 1084 (Vol. III), stated that in September 1973, after the 11th, he saw Jorge Eduardo Calderón Otaíza detained and lying on the grass in front of the Administrative Pavilion, who looked very thin and had a tired face.

Because of this, and since he could not talk to him, he secretly handed him sugar cubes. After this, he did not see his friend again, so he requested to speak with Lieutenant Leonardo Reyes, who was in charge of the Base's intelligence group along with Lieutenant Schmied, reserve officer Sandoval Poo (deceased, as recorded on p. 1102, Vol.

III), and Sergeant Garrido (deceased, as recorded on p. 1103, Vol. III). It was thus that Leonardo Reyes Herrera authorized him to talk to him, with Reyes Herrera also being asked if there was any possibility of releasing his friend Calderón Otaíza, to which Lieutenant Leonardo Reyes Herrera replied that it was his life or Calderón Otaíza's, after which he withdrew quickly and never asked about Jorge Eduardo Calderón Otaíza again.

H.- That, on the other hand, Héctor Gutiérrez Palma, a second-class soldier of the Chilean Air Force starting August 1, 1973, as recorded in statements from p. 418 to p. 419 (Vol. II), p. 429 to p. 432 (Vol.

II), p. 585 to p. 586 (Vol. II), p. 1002 to p. 1003 (Vol. III), p. 1035 to p. 1036 (Vol. III), p. 1074 to p. 1079 (Vol. III), and p. 1074 to p. 1080 (Vol. III), had known Jorge Eduardo Calderón Otaíza since high school, as he was known for being a sympathizer of Salvador Allende's government.

It is the case that while Gutiérrez Palma was waiting for dental care in the Air Base infirmary, two Air Base officials suddenly entered and made everyone inside the infirmary leave, with him remaining inside the infirmary despite the commotion that formed.

The officials were holding up a bloodied man with many hematomas on different parts of his body, whom he was able to identify as Jorge Eduardo Calderón Otaíza, who was convulsing, at which moment the infirmary door opened and he was received by the nurse Ferrada, of whom he is not sure if he was still a second-class soldier or already a civilian employee with officer rank, from which moment he knew nothing more of Jorge Eduardo Calderón Otaíza.

I.- That Héctor Gutiérrez Palma adds on p. 430 (Vol. II) that when he saw Calderón Otaíza, he was a "human rag"; that he thought he was dead; he was moving like jelly, due to a reflex act that the body maintains independently of brain activity; he could not fend for himself, and that it was very difficult for him to recognize him, even though he knew him very well; that those who took him to the infirmary did so from the place where they were interrogating him, which was about 30 meters from the infirmary; they carried him, he did not walk, and those who carried him were officials from the same air base whose identities he does not remember. That he, by chance, stayed there for no reason, and that those who brought Calderón Otaíza along with the nurse Ferrada must have seen him, but they did not ask him anything nor did they make him leave; that he was like invisible to them, further pointing out that he and Ferrada had joined the institution together, which is why he knew him well.

J.- That to this date, no public official of the Armed Forces, especially the command of the Chilean Air Force that was serving at the time of the events, has provided any information to the respective authority regarding what happened to Jorge Eduardo Calderón Otaíza and the location of his body, maintaining to this day the concealment of all types of information regarding the events mentioned in the preceding paragraphs.

Likewise, according to the records of the case, there was no instruction for investigations regarding the events surrounding the detention and aggravated kidnapping of Jorge Eduardo Calderón Otaíza.”

Source: pjud.cl, May 9, 2023

Supreme Court sentences retired military and civilians for homicides and illegal coercion at Temuco air base

The Second Chamber of the highest court confirmed the sentence that sentenced Crisóstomo Ferrada Carrasco, Enrique Rebolledo Sotelo, Heriberto Pereira Rojas, Jorge Valdebenito Isler, Jorge Soto Herrera, Luis Yáñez Silva, Luis Soto Pinto, and Leonardo Reyes Herrera to 20 years in prison as perpetrators of the crimes.

The Supreme Court rejected the appeals for cassation on form and substance filed against the sentence that convicted retired military personnel and civilian staff who served at the time of the events at the Maquehue Air Base in Temuco for their responsibility in the crimes of aggravated homicide of Hernán Henríquez Aravena and Alejandro Flores Rivera; and the illegal coercion applied to Jorge Silhi Zarzar, Víctor Hugo Painemal Arriagada, and Sergio Riquelme Inostroza.

These illicit acts were committed between September and October 1973 at the FACh facility.

In a unanimous ruling (case file 14.483-2021), the Second Chamber of the highest court—composed of ministers Manuel Antonio Valderrama, Jean Pierre Matus, Minister María Cristina Gajardo, and lawyers (i) Eduardo Morales and Ricardo Abuauad—confirmed the sentence that sentenced Crisóstomo Hugo Ferrada Carrasco, Enrique Alberto Rebolledo Sotelo, Heriberto Pereira Rojas, Jorge Aliro Valdebenito Isler, Jorge Eduardo Soto Herrera, Luis Osmán Yáñez Silva, Luis Alberto Soto Pinto, and Leonardo Reyes Herrera to 20 years in prison as perpetrators of the crimes.

Meanwhile, Luis Raimundo Quezada Chandía was sentenced to 17 years in prison as the perpetrator of the two aggravated homicides, and Óscar Alfonso Ernesto Podlech Michaud to 12 years in prison as the perpetrator of the aggravated homicide of Henríquez Aravena.

In the case of Pablo Aquiles Alister Contreras, a sentence of 4 years in prison was imposed as an accomplice to simple homicide and as a cover-up for illegal coercion.

Finally, Jaime Mauricio Echenique Seco, Aníbal Arturo Tejos Echeverría, Enrique Alcides Isaacs Casacuberta, Antonio Sergio Monserrat Mena, and Xavier Fernando Pérez Chávez were sentenced to 3 years and one day in prison, with the benefit of supervised release, for their responsibility as cover-ups for the crimes.

In the case, the highest court, acting ex officio, substituted the sentences of 3 years and one day in prison imposed on Berthold Bohn Sauterel, Rodolfo Ernesto Schmied Callejón, Víctor Manuel Volante Leonardi, and Rogelio Olivares Torruella with intensive supervised release for the same period, as cover-ups for the crimes.

The decision to substitute the custodial sentences with intensive supervised release was agreed upon with the dissenting vote of Minister Matus.

“That the appeal for cassation on substance proposed by the defense of the sentenced Óscar Alfonso Ernesto Podlech Michaud is based, firstly, on the cause contained in No. 7 of Article 546 of the penal procedural compendium, referring to the infringement of Articles 451 to 488 of the same legal body; the rules on ordinary procedure for higher amounts, by application of Article 3 of the Code of Civil Procedure and Article 43 of the Code of Criminal Procedure, in particular regarding Articles 1698, 1712, and 1713 of the Civil Code; 486 and 488 of the procedural code regarding presumptions; and also denouncing an infringement of Articles 15, No. 1 and 14, No. 1 of the Penal Code, 498 to 509 of the Code of Criminal Procedure, and 391, No. 1 of the Penal Code, alleging, fundamentally, that the evidence was evaluated against the law, committing an abuse by confusing the circumstances that the law allows to be proven through witnesses, which in the appellant's view cannot serve to prove participation, or through the abusive configuration of presumptions that would not be based on real and proven facts, nor would they be multiple, serious, precise, and concordant,” the ruling states.

The resolution adds that: “As a second cause, the appeal invokes Article 546, No. 2 of the procedural code, as an incorrect qualification was given to the crime and, consequently, a sentence was applied according to said erroneous qualification, thereby violating Article 7 of the Rome Statute of the International Criminal Court, in accordance with Articles 1 and 2 of Law 20.357, also violating Article 18 of the Penal Code, Article 19, No. 3 of the Fundamental Charter, in relation to Articles 391, No. 1 and Articles 93 and 94, all of the Penal Code, since, in his view, a generalized and systematic attack against the civilian population had not been proven, nor would there be any evidence that the accused had conspired to carry out the imputed homicide, whose qualification as an imprescriptible crime against humanity would imply a retroactive application of Law 20.357 and the Statute of the International Criminal Court, in violation of Article 18 of the punitive code.”

“As a third cause, the appeal is based on that contained in Article 546, No. 3 of the Code of Criminal Procedure, estimating that the sentencer erred by not considering the special mitigating factor of half-prescription, imposing on the fact a sentence higher than that provided for in the law, thereby depriving him of the possibility of obtaining any substitute sentence, which, in his opinion, would also constitute the cause provided for in Article 546, No. 1 of the procedural code, due to the violation of Articles 62, 65 to 69, 93, 94, 103, and 391, No. 1 of the Penal Code and Law 18.216 modified by Law 20.603,” it adds.

“Regarding the civil aspects of the sentence—it continues—it invokes as a cause for substantial cassation that contained in Article 546, final paragraph of the Code of Criminal Procedure, relating to the infringement of Article 41 of the same legal body and 2322 of the Civil Code, in relation to the rules of Articles 1437, 2492, 2497, 2514; and 19 and 22, first paragraph, all of the same legal body, by declaring the civil actions followed against him imprescriptible; and also that contained in Article 546, final paragraph of the Code of Criminal Procedure, that is, the false application of International Human Rights Law norms, which, in his view, do not provide for the imprescriptibility of patrimonial actions, in contravention also of Articles 2332 and 2497 of the Civil Code.”

“That this substantial remedy will not be able to prosper either, as it is built on mutually incompatible premises, since it requests that this Court invalidate the appealed sentence and issue a replacement one that acquits him both criminally and civilly because his participation in the imputed fact is not proven and because his responsibility in that same fact is prescribed; and that it declare that he has no responsibility and should be acquitted, but that he is favored by a special mitigating factor that is only applicable to those who are responsible,” the ruling affirms.

For the country's highest court: “Stated in this way, the appeal becomes ambiguous, which conspires against its nature of strict law, whose purpose is none other than to fix the correct scope, meaning, and application of the laws, in terms that it cannot be admitted that mutually incompatible, subsidiary, or alternative causes are poured into it, which leave it devoid of the necessary certainty in relation to the vices that support the allegations contained therein.

It is because of the way in which the appeal and its different chapters have been presented that it is not possible to enter into the substance of the matter.”

Likewise, the ruling records: “That, for the same reasons expressed in the previous consideration, the substantial cassation remedy proposed by the defenses of Crisóstomo Ferrada, Enrique Rebolledo, Heriberto Pereira, Jorge Valdebenito, Jorge Soto, Luis Yáñez, Luis Soto, and Leonardo Reyes must also be rejected, as it is based on the causes of Article 546, No. 1, No. 3, and No. 7 of the Code of Criminal Procedure, asking this Court to annul the appealed ruling because—without discussing the commission of the punishable act—there would be no evidence regarding the participation of the accused in the punishable act; or because their participation would be as cover-ups and not as perpetrators; or because the punishable act in which they would have participated would not constitute a crime against humanity, would be repealed, would have a lesser sentence; or would be prescribed; or because, in any case, if they had participated in the punishable act, it would be appropriate to apply the special mitigating circumstance of gradual prescription and that, in any case, they be acquitted of civil liability, allegations whose manifest incompatibility makes it impossible for this Court to fix the applicable law without falling into the same contradictions that the attempted remedy incurs or, to avoid them, arbitrarily choosing one of them, thereby substituting the work of the appellant, which is forbidden for a court in general and for a cassation court in particular.”

“The subsidiary nature with which some of these causes are interposed does not prevent the above, as such a form of presentation is not permitted in this class of appeals as it is expressly admitted by the second paragraph of Article 378 of the Code of Criminal Procedure, in the case of the nullity remedy regulated therein,” it highlights.

“That identical defects of interposition—it continues—suffer the appeals for cassation on substance deduced in favor of the sentenced Jaime Echenique, Enrique Isaacs, Antonio Montserrat, and Rodolfo Schmied, which must also be rejected, as they simultaneously invoke as causes those contained in Article 546, No. 1, No. 3, and No. 7 of the procedural code, requesting their acquittal for not having participated in the prosecuted facts or because they would not constitute crimes against humanity, to conclude by recognizing that participation and that the ruling be annulled for not having been granted a substitute sentence, which is not possible not only because such a decision is not part of the final appealed sentence but, furthermore, because of the optional nature that its granting has for the trial court.”

Helicopter crew members

In the first-instance sentence, the minister on extraordinary assignment for human rights violation cases of the Temuco Court of Appeals, Álvaro Mesa Latorre, established the following facts:

"A.- That immediately following the military pronouncement on September 11, 1973, the commander of Helicopter Group No. 3 of the Maquehue Air Base, Colonel Andrés Pacheco Cárdenas (deceased), delegated the operational command of the base to the second-in-command, Benjamín Fernández Hernández (deceased), in order to assume duties at the CAJSI (Command for Jurisdictional Action regarding Internal Situations) whose office was located at the No. 8 ‘Tucapel’ Infantry Regiment in the city of Temuco.

However, he never formally relinquished command of the aforementioned unit, attending that location daily to determine the actions to be followed.

B.- That starting that same day, the new local authority called several Air Force Reserve officers, who were civilian pilots, to active duty, including Berthold Erwin Bohn Sauterel, Pablo Aquiles Alister Contreras, and Emilio Sandoval Poo; and other retired officers who joined the Maquehue Base contingent and who, according to their rank, began to fulfill the same operational duties as the rest of the line officers and non-commissioned officers, at least during the most critical period of September and October 1973.

These duties included joining patrols intended to enforce curfew, guarding public service facilities and bridges, participating in operations of varying magnitude whose purpose was to raid homes and carry out the detention of persons opposed to the new regime or supporters of the outgoing administration, joining helicopter crews for the purpose of transporting detainees from one point of the region to another, piloting private light aircraft to monitor the coastal zone, and performing shifts as duty officer or guard inside the air base.

These latter shifts could last between 12 and 24 hours. It should be noted that a large portion of the Air Force reserve officers were also appointed as intervenors in different state companies, so they had to balance both activities during the aforementioned period without ceasing to fulfill these tasks, since each branch of the armed forces and order present in the city designated an intervenor per company, meaning activities in the intervened companies were always well-covered.

C.- That given the need to systematize and coordinate activities aimed at the detention of persons and their transfer to the Maquehue air base for subsequent interrogation, the second-in-command Benjamín Fernández Hernández (deceased) organized a specially selected group to handle intelligence matters and political detainees.

This group was under his command and included Lieutenants Ángel Campos Quiroga (deceased), Jorge Freygang Campaña (deceased), Captain Leonardo Reyes Herrera, Sergeant Orlando Garrido Riquelme (deceased), several members of the permanent staff of various ranks including, among others, Luis Arturo Soto Pinto, Heriberto Pereira Rojas, Luis Osmán Yáñez Silva, Jorge Aliro Valdebenito Isler, Jorge Eduardo Soto Herrera, and Enrique Alberto Rebolledo Sotelo; and a civilian employee who held a nursing specialty named Crisóstomo Hugo Ferrada Carrasco.

From that date on, this group gradually ceased to perform the functions proper to their specialty to focus on the tasks assigned to them by the high command of the Maquehue base.

D.- That this special group received the alternating and sporadic collaboration of line and reserve officers who, motu proprio or by express order, joined in some instances the patrols intended to raid homes and detain persons, or witnessed and collaborated in the interrogations of the detainees who remained inside the base, including Aníbal Arturo Tejos Echeverría, Enrique Alcides Isaacs Casacuberta, Antonio Sergio Monserrat Mena, Rodolfo Ernesto Schmied Callejón, Víctor Manuel Volante Leonardi, Xavier Fernando Pérez Chávez, Rogelio Aníbal Olivares Torruella, and Jaime Mauricio del Corazón de Jesús Echenique Seco. The persons detained in the various operations were kept in the guard facilities, the infirmary, in two offices located in the Administrative or Command building, in an old wooden tower that was previously used to store unused material and which, after September 11, was adapted for the aforementioned purposes, and on some occasions, they were also moved to a hangar located inside the base.

E.- That many of these detainees remained held at the Maquehue base for a period of no less than a week, during which time they were interrogated and tortured by the aforementioned officers and non-commissioned officers who were part of the intelligence group specially formed for such purposes, including the second-in-command Benjamín Fernández Hernández (deceased), Lieutenants Ángel Campos Quiroga (deceased), Jorge Freygang Campaña (deceased), Captain Leonardo Reyes Herrera, Sergeant Orlando Garrido Riquelme (deceased), non-commissioned officers Luis Arturo Soto Pinto, Heriberto Pereira Rojas, Luis Osmán Yáñez Silva, Jorge Aliro Valdebenito Isler, Jorge Eduardo Soto Herrera, and Enrique Alberto Rebolledo Sotelo; and the civilian employee Crisóstomo Hugo Ferrada Carrasco. The latter, in certain cases, supplied drugs to the detainees, such as Pentothal, so that they would confess to their alleged crimes. Also during that time, the detainees were taken out to the unit's courtyard during the day to rest a little or were taken to the bathrooms existing in the unit, an opportunity during which they were seen and attended to by conscript soldiers who were able to verify the deteriorated physical state in which these persons were found. Some of these conscripts had to perform sentry duties to guard the place where the detainees were kept.

F.- That the aerial operations carried out in helicopters on some occasions consisted of transporting Army troops to localities in the IX Region whose mission was to detain persons opposed to the military regime.

These persons were transported to the Maquehue air base and also to the No. 8 ‘Tucapel’ Infantry Regiment of this city, with the aircraft transporting them landing at both units, as the case may be. Likewise, transfers of detainees were carried out by land from the Maquehue air base to the Tucapel regiment, which were carried out by members of the special group described above and also on some occasions by reserve officers who received an order to that effect.

G.- That on the same day, September 11, 1973, the lawyer Óscar Alfonso Ernesto Podlech Michaud, who was also an Army reserve lieutenant, was called to collaborate with the new regime. He presented himself at the ‘Tucapel’ Regiment to support the work of the Military Prosecutor's Office that operated inside the unit and was under the charge of the second-in-command, Major Luis Jofré Soto (deceased).

This officer, however, had to assume greater duties as second-in-command of the Tucapel Regiment shortly thereafter. From that day forward, civilians began to arrive at the regiment who had been called to appear before the Military Prosecutor's Office via edicts published in the written press and on the radio, or who were brought in as detainees from different points of the region by carabinero and military patrols.

H.- That given the high number of detainees and persons called to testify, the Military Prosecutor's Office was reinforced to carry out its work with Judicial Branch officials who were requested from the Illustrious Court of Appeals of Temuco by the aforementioned lawyer, who, acting as ad-hoc prosecutor, made a presentation to the plenary of the appellate court, after which some clerks from different courts and a rapporteur of the Court were assigned on special service.

I.- That due to the lack of knowledge in criminal procedural matters, added to the weak character he possessed and the work as second-in-command of the regiment, Major Luis Jofré Soto (deceased) began delegating functions as military prosecutor to the legal advisor of the Prosecutor's Office, Óscar Alfonso Ernesto Podlech Michaud, who began to hold the position of de facto prosecutor, to the point that he carried out prison visits and that lawyers, family members, and even ecclesiastical dignitaries consulted him regarding the fate of the detainees.

However, Major Jofré Soto (deceased) continued to sign the administrative paperwork most of the time and participated in some interrogations of detainees.

J.- That the persons called to appear before the Military Prosecutor's Office and those who were brought in as detainees were kept in facilities located next to the guardhouse and in the large gymnasium.

Once interrogated by personnel of the Military Prosecutor's Office, by detectives of the Investigative Police attached to the regiment, or by the officers themselves who participated in these activities, some of them were released, others were sent to their homes under house arrest, and others were taken to the public jail where they remained while their procedural situation was resolved.

K.- That also for September 1973, at the No. 8 ‘Tucapel’ Infantry Regiment in Temuco, there existed the Second Section of Information and Intelligence, which was under the charge of Captain Nelson Manuel Uldaricio Ubilla Toledo (deceased), under whose dependency some non-commissioned officers of that institution also performed duties, work that was reinforced after September 11, 1973, with the addition of officials from the Investigative Police and Carabineros, who provided political information to the aforementioned officer regarding all those persons subject to an investigation by the Military Prosecutor's Office. Likewise, some officers, enlisted men, and conscripts of the regiment joined the intelligence tasks.

L.- That as the days went by, the Military Prosecutor's Office and the Second Intelligence Section began to work jointly to interrogate the detainees who remained held in the jail or in some facility of the Tucapel Regiment.

To articulate this work, two locations were enabled in the military unit, one located between the Headquarters and Mortar companies and another in an old disused gymnasium located to the side of the conscript soldiers' ‘mess hall’.

In this way, the detainees were taken to and from the jail to the regiment by military personnel of the Second Section, being interrogated at the Military Prosecutor's Office and physically coerced in one of the aforementioned facilities to ‘soften them up’ before or after these interrogations.

M.- That in both interrogation and torture rooms, there were implements to tie up the detainees and apply electricity to different parts of their bodies, in addition to applying other types of torment such as kicks and punches.

Conscript soldiers and a carabinero participated in this task, collaborating with Captain Nelson Ubilla Toledo and the detectives of the Investigative Police who were there. Most of the officers of the ‘Tucapel’ Regiment and some enlisted soldiers from the Headquarters and Services, Mortar, Hunter, and Second Section companies also participated in the interrogation and/or torture sessions of detainees in those places, all of whom entered these facilities at different times.”

Source: pjud.cl, March 6, 2024