The highest court concludes that in this case, the principle of res judicata—due to proceedings conducted in the Naval Court of Valparaíso that issued a definitive dismissal of the case regarding the death of Silva Jara—cannot be applied because it involves a crime against humanity.

The Supreme Court accepted a complaint appeal and ordered the resumption of the prosecution of retired Navy officer Leonel Enrique Barahona Tapia for the kidnapping and qualified homicide of Luis Humberto Silva Jara, crimes perpetrated in 1974 in Valparaíso.

In a split decision (case file 5388-2015), the Second Chamber of the highest court—composed of ministers Hugo Dolmestch, Carlos Künsemüller, Haroldo Brito, and acting lawyers Jean Pierre Matus and Jorge Lagos—accepted the judicial action and confirmed the ruling issued on March 9 of this year by the extraordinary visiting minister Jaime Arancibia Pinto, which ordered that Barahona Tapia be prosecuted as the perpetrator of the crimes.

In the resolution, the highest court concludes that in this case, the principle of res judicata—due to proceedings conducted in the Naval Court of Valparaíso that issued a definitive dismissal of the case regarding the death of Silva Jara—cannot be applied because it involves a crime against humanity.

"The criminal act investigated by the Military Prosecutor differs substantially from the one currently being investigated by the ordinary justice system, as the proceedings carried out by the former focused on elucidating whether the action of Barahona Tapia was justified in accordance with Article 10 No. 10 of the Penal Code, given the prior conduct displayed by the victim Silva Jara, that is, whether or not the latter attempted to flee or escape from his captors.

In contrast, the Visiting Minister is focused on clarifying not only the circumstances in which the death of Silva Jara occurred, but also the legality of the deprivation of liberty to which he was subjected prior to his death, which, in the opinion of the investigating magistrate, constitutes the crime of qualified kidnapping.

But not only that; although the death of Silva Jara was investigated in both summaries, it cannot be ignored that in the one currently underway, such action must be examined—by virtue of the complaints that motivate the resolution ordering the summary investigation—as an integral element of a crime against humanity.

This implies adding factual context to that singular event, namely, that the homicidal action was part of a widespread or systematic attack against a civilian population, and that the agent, in this case Barahona Tapia, had knowledge of said attack.

These contextual circumstances must be investigated in the summary proceedings carried out by the civil justice system (regarding these aspects of crimes against humanity, see Supreme Court rulings Rol No. 21.177-14 of November 10, 2014; Rol No. 2931-14 of November 13, 2014; Rol No. 11.983-14 of December 23, 2014; and Rol No. 25.657-14 of May 11, 2015).

Thus, what must be inquired into in case Rol No. 144.063-2011 is not simply the action executed by Barahona Tapia against Silva Jara, but whether there existed at the time a widespread or systematic attack against the civilian population of which the death caused by Barahona Tapia was a part, and whether the latter had knowledge of it; context and circumstances that must be scrutinized and determined, affirmatively or negatively, in the summary proceedings being carried out by the Visiting Minister," the high court's ruling states.

The resolution adds that "linked to the above, and as has been resolved before by this Court, in accordance with Article 413 of the Code of Criminal Procedure, it is not possible to definitively dismiss cases where the investigation to verify the corpus delicti and determine the perpetrators is not exhausted.

Likewise, it is not permitted to dismiss, but rather to await the final judgment, if the circumstances that exempt from responsibility or the facts upon which its extinction depends are not fully proven in the summary (Supreme Court rulings Rol No. 1134-02 of November 4, 2003; Rol No. 2.505-02 of November 11, 2003; Rol No. 4622-02 of March 29, 2005; and Rol No. 695-03 of December 22, 2005).

This Court has also ruled that the institution of res judicata has no place in cases where there has not been a serious and effective intention to discover the truth of what happened to the victims (Supreme Court ruling Rol No. 22.343-14 of February 26, 2015).

Well then, as mentioned, the complaint on page 156 links the classification of a crime against humanity given to the homicide of Silva Jara to the restrictions on people's rights derived from the imposition of the State of Siege by the authorities of the time—a complaint which, upon being admitted by the court, means that the facts it outlines must also be the subject of the investigation—a criterion that, it is worth mentioning, has been shared by this Court recently regarding human rights violations that are corollaries of or perpetrated on the occasion of the curfew (Supreme Court ruling Rol No. 25.657-14 of May 11, 2015). The above clearly demonstrates that the circumstances or contextual elements adduced in the complaint, which would allow the homicide of Silva Jara to be classified as a crime against humanity—beyond the state of progress of legal science at the time in defining the legal contours of the concept—could not be investigated by the military judiciary, even less so in the case sub lite, where precisely due to the State of Siege in force, Military Tribunals in Time of War operated, with the War Prosecutor of Valparaíso acting as the instructor and the 'Military Chief of the Zone in State of Siege of the Province of Valparaíso' acting as the tribunal, which ordered the instruction of the summary on page 22 and then decreed its dismissal on page 47. It is unnecessary to explain that within the institutional and hierarchical framework in which the inquiry and subsequent resolution on the course of the investigation in case Rol No. A-567 were carried out, the circumstances referred to in the complaints, based on which they maintain the classification of the reported facts as 'qualified' homicide, kidnapping, illicit association, and, especially, their character as a crime against humanity, were not even taken into account by the resolution that ordered the summary investigation, excluding them in advance as a possible object of the inquiries that had to be carried out in accordance with Article 180, paragraph 2, of the Code of Military Justice—which in fact happened, as is proven by a simple review of the file—nor by the ruling that subsequently decreed the definitive dismissal of the investigation."

Furthermore, it continues, "regarding the identity of the perpetrators of the facts investigated in both processes, and as has been resolved in the sentences of this Court already cited above, since Article 408 No. 7 of the Code of Criminal Procedure authorizes definitive dismissal when the punishable act in question has been the subject of a process in which a final judgment was issued affecting the 'current defendant,' it is possible to deduce that res judicata in criminal matters only reaches those who have been parties in both processes, which means that the current defendant must also have been a party in the previous case. In this regard, in the aforementioned case Rol No. A-567, no person responsible for the investigated facts was determined, nor were the accused prosecuted, and said case was dismissed as explained before, so there is no identity of the current defendant that would allow for the existence of res judicata."

The decision was adopted with the dissenting votes of Minister Dolmestch and acting lawyer Lagos.

Source: elmartutino.cl, July 1, 2015

Luis Humberto Silva Jara Case: former conscript soldier convicted for the execution of a port worker detained in Playa Ancha, Valparaíso

On January 22, the substitute minister of the Valparaíso Court of Appeals, Max Cancino, sentenced former conscript soldier Leonel Enrique Barahona Tapia to 10 years and one day of imprisonment, without benefits, as the perpetrator of the crime of qualified homicide of Luis Humberto Silva Jara.

In the ruling (case file 144.063-2011), Minister Cancino also sentenced, in addition to Leonel Barahona, former conscript Luis Mauricio Maureira González and former carabinero Juan Alberto Cromilakis Fernández to 60 days of imprisonment for their responsibility in the crime of simple kidnapping, with the benefit of a suspended sentence.

During the investigation stage, the visiting minister in charge of the case established the following facts:

"That on November 16, 1974, in the early hours of the morning, the victim Luis Silva Jara was sharing time with some friends inside an apartment located in the Merchant Marine sector of Playa Ancha, Valparaíso.

At approximately 03:20 hours, a patrol of uniformed officers arrived at the scene, composed of an officer from the First Police Station of Carabineros of Playa Ancha and two conscript soldiers from the Maipo regiment.

After having a conversation with the young men, they forced them to leave the apartment to proceed to detain them for violating the curfew, despite them being inside a private home. At the moment the uniformed officers were leading the young men along the Camino de la Pólvora toward the corresponding police unit, upon reaching Calle Panamá, one of the guards fired his rifle at one of the detainees, striking Luis Silva Jara in the back, who died instantly at the scene."

Source: derechoshumanos.udp.cl, February 2020