Case File No. 7.039-A: Case of José Esaú Velásquez Velásquez and Rubén Alejandro Velásquez Vargas

Santiago, August 12, 2009. Having seen: In these proceedings No. 7.039-A, conducted before the Chaitén Criminal Court, by resolution of August 14, 2007, which appears on pages 2,193 to 2,316, corresponding to Volume V of these records, the following individuals were sentenced: Juan Hernán Garrido Gutiérrez, Noé Segura Santander, and Enrique Belmar Corral , to serve a single temporary sentence of fifteen years and one day of presidio mayor in its medium degree, the pertinent legal accessories, and to pay the costs of the trial, for their responsibility as co-perpetrators of the crimes of qualified homicide against José Esaú Velásquez Velásquez, and the qualified kidnapping of Rubén Alejandro Velásquez Vargas , provided for and sanctioned in articles 391, No. 1, first circumstance, and 141 of the Penal Code, perpetrated on October 5, 1973, in the Lago Yunque sector of the Palena province. Additionally, Jorge Palma was imposed a sentence of ten years and one day of presidio mayor in its medium degree, the respective legal accessories, and to satisfy the costs of the lawsuit, for his responsibility as a perpetrator of the qualified homicide of José Esaú Velásquez Velásquez , mentioned above, and he was acquitted of the charge formulated by the indictment on page 1,481 regarding being considered a perpetrator of the crime of qualified kidnapping of José Esaú Velásquez Velásquez (sic); without granting the convicts any of the benefits contemplated by Law No. 18.216. In its civil section, the same decision upheld the claim filed by the plaintiffs Ana Soto Álvarez and Daniel José Velásquez Soto against Juan Hernán Garrido Gutiérrez, Noé Segura Santander, Enrique Belmar Corral, and Jorge Palma , who were ordered to pay compensation for moral damages of $60,000,000 (sixty million pesos). Regarding the other defendant—the Treasury of Chile—the exception of lack of jurisdiction of the court, raised by the fiscal defense in the main brief on pages 1,984 and 1,515, was upheld. The verdict was appealed by the defendants Garrido Gutiérrez, Belmar Corral, Palma, and Segura Santander at the time of their notifications, as shown on pages 2,322 verso, 2,325 verso, 2,327, and 2,335, respectively. Once the report from the Public Prosecutor's Office was submitted on pages 2,340 and 2,341, the Puerto Montt Court of Appeals, by ruling of June 27, 2008, which appears on pages 2,476 to 2,479 verso, reproduced the judgment with the exception of seven of its reflections, subsequently introducing a series of modifications and taking into account twelve others, ultimately revoking it insofar as it punished Jorge Palma for the charge of being a perpetrator of the crime of qualified homicide of José Esaú Velásquez Velásquez, and in its place declared his acquittal. The acquittal of the aforementioned Palma was also revoked regarding the charge of being a perpetrator of the crime of qualified kidnapping of Rubén Alejandro Velásquez Vargas (sic), and, in its place, he was sentenced as a perpetrator of that crime to three years and one day of presidio menor in its maximum degree, the corresponding legal accessories, and the payment of the costs of the litigation, with the alternative benefit of supervised release, which shall extend for the same period assigned to his custodial sentence. Furthermore, the appealed judgment was confirmed in all other respects, with the declaration that Juan Hernán Garrido Gutiérrez, Noé Segura Santander, and Enrique Belmar Corral are definitively sentenced to serve two sentences of three years and one day of presidio menor in its maximum degree each, the pertinent legal accessories, and to pay the costs of the case, for their responsibility as co-perpetrators of the crimes of qualified kidnapping of Rubén Alejandro Velásquez Vargas and simple homicide of José Esaú Velásquez Velásquez, without granting them any of the benefits of Law No. 18.216. Against this ruling, the defense of the four defendants filed an appeal for cassation on the merits, in the main brief on pages 2,481 to 2,498, based on subsections 2, 3, and 7 of Article 546 of the Code of Criminal Procedure. On page 2,501, the case files were brought for review. Considering: First: That the present appeal is based on the second, third, and seventh numerals of Article 546 of the Code of Criminal Procedure, arguing that the sentence, by making an incorrect classification of the crime of kidnapping under Article 141 of the Penal Code, applied the penalty in accordance with that erroneous classification, which also violates the pro reo principle enshrined in Article 19, number 3, paragraph 7, of the Political Constitution of the Republic. Furthermore, for having classified as a crime an act that criminal law does not consider as such, as it would be a legal fiction; and finally, for having violated the laws regulating evidence, provided that this contravention substantially influences the operative part of the resolution, by sentencing their client (without specifying which one), disregarding the merits of the case. Second: That the seventh ordinal of Article 546 of the Criminal Procedure Code is developed regarding the violation of the guidelines regulating evidence. It is argued here that the inquisitorial criminal procedure requires courts to play an active role in accessing the material truth of the facts, as provided by Articles 6, 91, 107, 109, and others of the aforementioned code. Regarding Article 109, it summarizes the duties of the court in the matter by imposing the duty to investigate with zeal; Article 6 states: "Whatever the court called upon to hear a criminal trial, the learned judges with criminal jurisdiction are obliged to carry out the first investigative steps of the summary proceedings"; Article 91 prescribes: "upon receipt of the complaint and without further procedure, the judge shall immediately proceed to verify the reported fact"; Article 107 stipulates: "before continuing the criminal action, whatever the form in which the trial was initiated, the judge shall examine whether the background or data provided allow for the establishment that the criminal liability of the accused is extinguished. In this case, he shall issue a reasoned order to refuse to proceed with the trial"; and in turn, Article 109 orders that "the judge must investigate, with equal zeal," not only the facts and circumstances that establish and aggravate the liability of the accused, but also those that exempt, extinguish, or mitigate it. Third: That the appellant highlights that all the norms cited in the previous reasoning were ignored, as the military courts took timely cognizance of the facts in 1973 but did not sanction any of the accused. Subsequently, the Criminal Courts of Chaitén and Coyhaique carried out the first investigative steps when more than ten years had passed since the events occurred and the criminal action and the penalty were already time-barred, and that political pressure has prevented the investigation and evaluation in the ruling of the circumstances that extinguish the criminal liability of the perpetrators, since it was not investigated in a timely manner and only after thirty-five years had passed since the events was the edict issued, motivated more by political pressure than by the duty to do justice. It is added that Article 160 of the Code of Civil Procedure stipulates that: "...judgments shall be pronounced according to the merits of the process," which obliges the judge to weigh all the evidence presented in the case, without excluding or omitting any of it, so that by sentencing their "client," the legal obligation imposed by the aforementioned provision has not been met. Fourth: That, in the same line of thought, Title II of Book Two of the Code of Criminal Procedure establishes a system of legal evidence for ordinary criminal procedure; thus, all evidence presented in the case must be invoked and weighed in the verdict in accordance with said precept. However, when analyzed in a joint and systematic manner, it is necessary to conclude with the acquittal of their clients, since the crime of kidnapping with which they are charged does not exist, with the "accused" being sentenced as... [Text continues regarding legal technicalities].

Source: Judiciary, August 14, 2007

Supreme Court issues final judgment in Human Rights case

The Supreme Court issued a final judgment in the investigation into the qualified kidnapping of Rubén Alejandro Velásquez Vargas and the homicide of José Esaú Velásquez Velásquez, which occurred starting October 5, 1973, in the Lago Yunque sector, Palena province, Los Lagos Region.

In a split decision, the ministers of the Second Chamber of the highest court determined a sentence of three years and one day for the former carabineros: Jorge Palma for the homicide of the farmer. An identical sentence was given to Juan Hernán Garrido Gutiérrez, Noé Segura Santander, and Enrique Belmar Corral for the kidnapping of Velásquez Vargas.

All were granted the benefit of supervised release. In the civil aspect, the claim for compensation and damages by the victims' relatives, Ana Soto Álvarez and Daniel José Velásquez Soto, was upheld, ordering the convicted individuals to pay the sum of $60,000,000 for moral damages. The claim against the Treasury of Chile was dismissed, upholding the court's lack of jurisdiction. _

CONVICTION CONFIRMED IN HUMAN RIGHTS CASE

The Supreme Court issued a final judgment in the investigation into the qualified kidnapping of Rubén Alejandro Velásquez Vargas and the homicide of José Esaú Velásquez Velásquez, which occurred starting October 5, 1973, in the Lago Yunque sector, Palena province, Los Lagos Region.

In a split decision, the ministers of the Second Chamber of the country's highest court, Nibaldo Segura, Jaime Rodríguez, Rubén Ballesteros, Hugo Dolmestch, and Carlos Künsemüller, determined the sanctions detailed below:

• Jorge Palma: 3 years and one day of presidio for the homicide of Velásquez Velásquez. The benefit of supervised release was granted.
• Juan Hernán Garrido Gutiérrez: 3 years and one day of presidio for the homicide of Velásquez Velásquez, and 3 years and one day of presidio for the kidnapping of Velásquez Vargas. The benefit of supervised release was granted.
• Noé Segura Santander: 3 years and one day of presidio for the homicide of Velásquez Velásquez, and 3 years and one day of presidio for the kidnapping of Velásquez Vargas. The benefit of supervised release was granted.
• Enrique Belmar Corral: 3 years and one day of presidio for the homicide of Velásquez Velásquez, and 3 years and one day of presidio for the kidnapping of Velásquez Vargas. The benefit of supervised release was granted.

In the civil aspect, the claim for compensation and damages by the victims' relatives, Ana Soto Álvarez and Daniel José Velásquez Soto, was upheld, ordering the convicted individuals to pay the sum of $60,000,000 (sixty million pesos) for moral damages.

The claim against the Treasury of Chile was dismissed, upholding the court's lack of jurisdiction. In the criminal aspect, the conviction was adopted with the dissenting vote of ministers Segura and Ballesteros, who were in favor of applying the statute of limitations; while in the civil aspect, ministers Dolmestch and Künsemüller were in favor of upholding the action filed against the Treasury.

In the first instance, the case was investigated by the Chaitén Court of Letters, the court responsible for reviewing jurisdictional matters in the Palena province.

Source: elmostrador.cl, August 13, 2009