Visiting judge Jorge Zepeda indicted four former Carabineros and four former military personnel as perpetrators of the aggravated kidnapping of U.S. citizen Boris Weisfeiler, who was forcibly disappeared between January 3 and 5, 1985, in the vicinity of the former Colonia Dignidad.

The individuals prosecuted by the magistrate were identified as Jorge Andrés Cofré Vega, Estorgio Soto Vásquez, José Mauricio Arias Suazo, Antonio Luis Alberto Cortés Aravena, Luis Ricardo Félix Pardo Fernández, Gabriel Humberto Díaz Morales, and Héctor Rolando Aedo Toro, as perpetrators of aggravated kidnapping.

Meanwhile, Guillermo Luis Fernández Catalán was charged as an accomplice to aggravated kidnapping.

According to the Judiciary via its website, on the aforementioned date, Carabineros officers noted "that a hiker, who was wearing military-style clothing, was moving through their surveillance sector on the border in a west-to-east direction.

Presuming the illegal entry of the unknown person through border crossings from Argentina into national territory, they became alarmed due to the military clothing the stranger was reported to be wearing, which gave the stranger the appearance of an ‘extremist’ trying to enter the country clandestinely."

The resolution added that the uniformed officers detained Weisfeiler, "deprived him of his liberty and decided to hide him," and later reported "deceptively to the authorities that a hiker passing through the Los Sauces sector had presumably drowned while attempting to cross the river." Furthermore, it was specified that a group of military personnel collaborated with the Carabineros in the "illegitimate deprivation of liberty and concealment."

Finally, the document indicated that the agents "additionally maintain a persistent pattern of concealment to this day regarding the circumstances of the detention and the whereabouts of this American citizen, which ultimately determines his forced disappearance."

Source: adn.cl, August 21, 2012

Supreme Court turns back the clock decades and declares the acquittal of those accused of an aggravated kidnapping during the dictatorship

In a split decision, the Second Chamber of the highest court resolved to approve the acquittal of the Carabineros and members of the Army accused of being the perpetrators of the aggravated kidnapping of Russian-American citizen Boris Weisfeiler Bernstein, perpetrated in January 1985 in the mountain and border area of the Maule and Bío Bío regions.

The split decision of the Second Chamber (case file 2.901-2020)—composed of justices Manuel Antonio Valderrama, Jorge Dahm, Leopoldo Llanos, justice María Cristina Gajardo, and justice Diego Simpértigue—ruled out any error in the sentence that decreed the final dismissal of the former uniformed officers Jorge Andrés Cofré Vega, Estorgio Soto Vásquez, José Mauricio Arias Suazo, Antonio Luis Alberto Cortés Aravena, Luis Ricardo Félix Pardo Fernández, Gabriel Humberto Díaz Morales, Héctor Rolando Aedo Toro, and Guillermo Luis Fernández Catalán.

By sharing the classification of the lower court and the Court of Appeals, which classified the events as a common crime and, consequently, applied the statute of limitations to the criminal action, the court ruled out that it was a crime against humanity.

Consequently, the resolution of the Second Chamber rejected the appeals for cassation filed against the sentence that decreed the acquittal of the former members of the Army and Carabineros, accused as responsible for the crime of aggravated kidnapping of the 43-year-old Russian-American mathematician Boris Weisfeiler Bernstein, who was detained and forcibly disappeared in January 1985 in the mountains of the seventh and eighth regions.

Boris Weisfeiler was detained on January 4 by Carabineros from the "El Roble" Border Outpost in the commune of San Fabián de Alico, in the Ñuble province, at the confluence of the Ñuble and Los Sauces rivers, located on the communal border with Parral in the mountain zone.

The minority of the Second Chamber, composed of justices Leopoldo Llanos and Jorge Dahm, were in favor of accepting the filed appeals for cassation and, consequently, invalidating the appealed sentence and, in a replacement ruling, sentencing the accused to 10 years and one day of imprisonment, plus legal accessories, as perpetrators of the crime of aggravated kidnapping of Boris Weisfeiler Bernstein, rejecting the statute of limitations on the criminal action because it is a crime against humanity.

In the judicial investigation and in the first-instance ruling by judge Jorge Zepeda Arancibia, it was established that: "(...) the accused deprived the victim, Boris Weisfeiler Bernstein, of his liberty and hid him, starting from January 3 to 5, 1985, and to achieve this purpose, the involved Carabineros officers, belonging to the 'El Roble' border outpost, deceptively reported that the aforementioned victim had drowned and then disappeared while attempting to cross the 'Los Sauces' river."

Furthermore, this activity allegedly began when they pursued the victim, erroneously estimating that he was an extremist entering the country clandestinely, after being warned by locals of the passerby's movement through the sector.

Likewise, according to the accusations, along with these Carabineros officers, there is evidence that would allow charges to be brought for the same crime against the Army officers who were part of the military patrol located near the place where the accused Carabineros claim the hiker had attempted to cross the 'Los Sauces' river.

These Army officers collaborated directly in the criminal act with the former, ultimately charging all of them with the deprivation of liberty and the concealment of the victim.

Despite the verified evidence, this same judge, Zepeda, resolved in March 2016 to acquit the accused, classifying the crime as a common crime and, based on that, citing the statute of limitations. This legal absurdity was later ratified by the Santiago Court of Appeals in November 2019 and now ratified by the Second Chamber in an unusual resolution.

This Supreme Court ruling represents a grotesque setback in terms of justice in human rights cases, because the fact that the victim was not "an extremist," as the uniformed officers labeled him to justify their criminal actions, nor did his presence in the country have any political motivation—as demonstrated by the facts and the very foundations of the investigation and judicial ruling—means the crime committed against him was based on the existence of a persecutory policy and the intent to eliminate opponents of the dictatorial regime.

According to the majority ruling of the Second Chamber: "Thus, by not classifying the act as a crime against humanity and, subsequently, applying the statute of limitations to the criminal action, the lower court judges have not incurred in their sentence the defect denounced by the appellants, so the appeals will be rejected," the ruling concludes.

The victim of this crime, an American mathematician and professor at Princeton University who was hiking in the Andes mountains for tourism, was not a political activist, nor did his trip to Chile have political motivations.

Yet, he was kidnapped, eliminated, and forcibly disappeared as an expression of a policy of extermination toward potential opponents and a doctrine of persecution executed by uniformed officers and repressive forces against civil society. All of this makes this crime a crime against humanity, a human rights crime, and not a common crime as it has been classified in a flagrant act of impunity.

This ruling ignores what was established by dozens of preceding rulings adopted by Chilean courts after being urged by international treaties and commitments to apply universal standards of justice regarding human rights and crimes against humanity.

It also ignores the self-criticism that the Supreme Court itself made in September 2013 regarding its behavior and conduct in judicial cases during the dictatorship era and as a consequence of it in subsequent years. This ruling returns to those practices of complicity, granting impunity to uniformed criminals.

by Darío Núñez

Source: resumen.cl, November 1, 2023