Concepción Court sentences retired Navy personnel for the application of torture against the former Mayor of Cañete.

Regarding the civil aspect, the Court of Appeals confirmed the ruling that ordered the convicted parties and the State of Chile to jointly pay total compensation of $520,000,000 to the victim's widow and children.

In a unanimous ruling, the Concepción Court of Appeals sentenced retired members of the Navy for their responsibility in the crime of application of torture or unnecessary rigor resulting in the death of the former Mayor of Cañete, Manuel Elías Jana Santibáñez, an illicit act perpetrated in February 1975 at the Talcahuano Naval Stadium.

Thus, the Court of Appeals confirmed the sentence issued by the visiting judge Carlos Aldana, which sentenced retired Navy corporal Carlos Eliecer González Macaya to 4 years in prison, with the benefit of intensive supervised release, as the perpetrator of the crime.

Likewise, the Court revoked the acquittal of the guards at the time of the events, Hernán Alberto Cabeza Moreira and Pedro Julio Bastidas Antibilo, sentencing them to 541 days in prison, with the benefit of conditional remission of the sentence, as accomplices to the crime.

The sentence maintains that such cooperation is established by the fact that it was proven that on the day of the events, the defendants Bastidas Antibilo and Cabeza Moreira were on guard duty at the facility where the victim was being held, and that at nightfall on February 16, 1975, they went to the gym locker room located inside the Talcahuano Naval Base and received the order from Corporal González Macaya to move the detainee Jana Santibáñez to a closed truck from the Supply Center that was outside the gym.

They proceeded to grab the detainee by the feet and hands while he struggled, then moved him outside the gym, finally leaving him in the back of the aforementioned truck. It was also proven that at the moment the victim was moved from the gym to the cargo vehicle, he already presented injuries resulting from the blows received, which is inferred directly from the set of testimonies and evidence recorded in the 2nd point of this sentence.

During the investigation stage of the case, Judge Carlos Aldana managed to determine that on February 14, 1975, Manuel Elías Jana Santibáñez was detained in the city of Lebu without a competent judicial or administrative order and was transferred that same day in a Chilean Navy truck to the Talcahuano Naval Base, where he was held, along with other people apprehended under the same circumstances, in the locker room sector of the Naval Stadium at the aforementioned military facility.

He was taken from this place several times to be interrogated under torture, which included being struck with fists and feet.

At nightfall on Sunday, February 16, 1975, he was taken from his place of detention by three Navy officials who were on guard duty, commanded by Carlos Eliecer González Macaya. Faced with Jana Santibáñez's refusal to leave the place, they took him by force until he was subdued, at which point one of the guards struck him hard in the groin area, finally taking him out on a stretcher—held by his feet and hands—leaving him badly wounded and semi-conscious from the blows received, in which state he was taken to a truck and left inside the cargo bed, where he died.

Regarding the civil aspect, the ruling that ordered the convicted parties and the State of Chile to jointly pay total compensation of $520,000,000 to the victim's widow and children was confirmed.

Source: diarioconstitucional.cl, April 3, 2018

Supreme Court sentences retired Navy members for the application of torture at the Talcahuano naval base.

The highest Court rejected the appeals for cassation on the merits filed against the sentence that sentenced Carlos Eliecer González Macaya to 4 years in prison, with the benefit of supervised release, as the perpetrator of the crime.

In a unanimous ruling, the Supreme Court sentenced three retired members of the Navy for their responsibility in the crime of application of torture resulting in the death of Manuel Elías Jana Santibáñez, an illicit act perpetrated in February 1975 at the Talcahuano naval base.

The highest Court rejected the appeals for cassation on the merits filed against the sentence that sentenced Carlos Eliecer González Macaya to 4 years in prison, with the benefit of supervised release, as the perpetrator of the crime.

Meanwhile, Hernán Alberto Cabeza Moreira and Pedro Julio Bastidas Antibilo were sentenced to 541 days in prison, with the benefit of conditional remission of the sentence, as accomplices to the crime.

Regarding the appeal for cassation filed by the Human Rights Program on page 2,067, concerning the decision of the challenged ruling, it must be kept in mind that the following are facts established by the lower court judges, as read in the second point of the first-instance ruling, and reiterated in practically the same terms in the first foundation of the ruling under review:

‘On February 14, 1975, Manuel Elías Jana Santibáñez was detained in Lebu without a competent judicial or administrative order, being transferred the same day in a Chilean Navy truck to the Naval base located in Talcahuano, where he was held with other people apprehended under the same circumstances.

Later, in the gym locker room sector of the same facility, Manuel Elías Jana Santibáñez was taken out several times to be interrogated under torture, receiving blows with feet and fists; he was even falsely informed that his wife and children were being held at the same Naval Base.

Thus, faced with the detainee's open complaints, his guards, to silence him, put a cloth or piece of bread in his mouth and tied his hands, and subsequently—at nightfall on Sunday, February 16, 1975—he was taken from the place of detention by three Navy officials who were on guard duty, commanded by Carlos González Macaya.

Faced with the victim's refusal to leave the place, they took him by force until he was subdued, at which point one of his guards struck him hard in the groin area, leaving him badly wounded and semi-conscious, and in that state he was taken to a truck, leaving him inside the cargo bed, where he died due to the injuries received as a result of the torture or unnecessary rigor.’

The resolution adds that in view of what is expressed in the preceding foundation, it is evident that the reproach for infringement of the law, typical of the appeal being reviewed, proceeds on the basis of a specific and material motive consisting of an erroneous application of the law that would have substantially influenced the dispositive part of the challenged ruling, in such a way that it refers to the application of the legal norm that serves as the basis for the legal qualification of the facts raised in the controversy, that is, the decision of the litigation, an aspect on which the appeal remains silent by omitting to extend itself to the possible infringement of Article 391 of the Penal Code, a provision that constitutes the cornerstone of its claim to obtain the sanction of the accused in accordance with said criminal type, which was not the subject of a private accusation by the appellant, who in her private accusation only maintained the illicit acts of simple kidnapping and application of torture or illegitimate coercion resulting in death.

Subsequently, the ruling points out that under such conditions, this Court is prevented from entering into the analysis of the legal problems raised in the appeal, since the core of its claim is that a replacement sentence be issued that condemns the accused, as perpetrator and accomplices, of the crime provided for in Article 150, No. 1, second paragraph, in accordance with the penalty assigned to the crime of simple homicide, in its maximum degree, that is, the penalty of twelve years of major imprisonment in its medium degree—in the case of González Macaya—and seven years of major imprisonment in its minimum degree—in the case of Cabeza Moreira and Bastidas Antibilo—plus accessories and costs, which is not possible, given the omission noted and the peremptory terms of Article 785 of the Code of Civil Procedure, which determines the competence of this Court when issuing the required replacement sentence.

It adds that without prejudice to the fact that the reasons expressed above are sufficient to determine the fate of the appeal under study, this court deems it appropriate to point out that even if the aforementioned defect had not been incurred, it could not prosper, since the second paragraph of Article 150, No. 1, of the Penal Code in force at the time of the events, prescribes that ‘if the application of torture or the unnecessary rigor employed results in injuries or death of the patient, the penalties indicated for these crimes in their maximum degrees shall be applied to the person responsible.’

The resolution affirms that in accordance with the grammatical element of interpretation of the expression ‘these crimes,’ it cannot be understood that it refers to the expressions ‘injuries or death,’ since they were not used as equivalents of the criminal types of injury or homicide, but in relation to the result of the crime of application of torture or unnecessary rigor, a consequence that entails the application of the penalty for these crimes to the maximum, that is, those of application of torture or unnecessary rigor, which are the only ones mentioned by the cited norm.

For the Criminal Chamber of the Supreme Court, maintaining the opposite would mean recognizing an objective responsibility that is not consistent with the principles of modern criminal law, since the agent who applied the torture or unnecessary rigor would be sanctioned based on the result of injuries or death caused by their negligence or imprudence.

It concludes that, finally, the reasoning carried out by the sentencers is not contrary to the reliable history of the law, since, as the appellant herself recognizes, the second paragraph was added with the object of avoiding the application of a meager penalty, which is remedied in this case by providing that, if the result of injuries or death occurs, the penalty indicated for the crime of application of torture or unnecessary rigor in its maximum degree is applied.

Source: diariodevaldivia.cl, December 6, 2019