The visiting minister also sentenced retired Army personnel Eugenio Adrián Covarrubias Valenzuela, Fernando Luis Concha Giordano, and Francisco Javier Alarcón Castro; and the then-members of the Carabineros René Isidro Villarroel Sobarzo, José Harnoldo Ule Guineo, Gabriel Osvaldo Mejías Leyton, and Carlos Berríos Rodríguez to two 10-year prison terms as perpetrators of the kidnappings and illegal coercion applied to the six victims.

The minister for extraordinary causes regarding human rights violations for the jurisdictions of Temuco, Valdivia, Puerto Montt, and Coyhaique, Álvaro Mesa Latorre, sentenced the squadron commander and ad-hoc auditor of the Air Force at the time of the events, Patricio Rodríguez Encalada, to life imprisonment as the perpetrator of the consummated crimes of qualified homicide, as crimes against humanity, of Mario César Torres Velásquez, José Mario Cárcamo Garay, Francisco del Carmen Avendaño Bórquez, Óscar Arismendi Medina, José Luis Felmer Klenner, and José Antonio Barría Barría.

These illicit acts were perpetrated in September 1973 at the Fundo El Toro, in the commune of Fresia.

In the ruling (case file 10.819), the visiting minister also sentenced retired Army personnel Eugenio Adrián Covarrubias Valenzuela, Fernando Luis Concha Giordano, and Francisco Javier Alarcón Castro; and the then-members of the Carabineros René Isidro Villarroel Sobarzo, José Harnoldo Ule Guineo, Gabriel Osvaldo Mejías Leyton, and Carlos Berríos Rodríguez to two 10-year prison terms as perpetrators of the kidnappings and illegal coercion applied to the six victims.

In the civil sphere, the court accepted the filed claim and ordered the state to pay a total compensation of $2,750,000,000 for moral damages to the victims' families.

War Council

In the sentence, Minister Mesa Latorre established the following facts as proven:

“A.- That on September 20, 1973, in the morning hours, a military contingent composed of members of the Army, Air Force, and Carabineros de Chile entered a property located in the commune of Fresia, known as ‘Fundo El Toro,’ proceeding to violently detain all the men found there, holding them for several hours, during which time they were subjected to illegal coercion (torture) and interrogations, all of which is evidenced, among other proofs, in the statements of Patricio Arismendi Añazco (at pp. 61 and 93 of Volume I), Miriam Arismendi Añazco (at pp. 64 and 102 of Volume I), Juvenal Sánchez Guarda (at p. 131, Volume I), Pablo Carrillo Aburto (at pp. 134 and 2492, Volumes I and V respectively), Guido Negrón Aburto (at pp. 136, 2263, and 312, Volumes I, V, and VIII respectively), Jorge Ovando Agüero (at pp. 138, 775, and 1391, Volumes I, II, and III respectively), Sergio Angulo Cárdenas (at pp. 142 and 581, Volumes I and II), Luis Lopetegui Santana (at pp. 423 and 1975, Volumes I and IV respectively), Graciela Vegas Soto (at p. 1224 of Volume V), who were eyewitnesses and/or heard accounts of what happened there. These facts were also described in the indictment order on pages 1293 and following (Volume III) dated February 26, 2016, issued by Minister Leopoldo Vera Muñoz and confirmed by the Illustrious Court of Appeals of Puerto Montt on page 1507 (Volume IV).

B.- That in the events described above, the following participated as apprehenders: René Villarroel Sobarzo, Osvaldo Mejías Leyton, Fernando Concha Giordano, Edinson Chávez Gallardo, Francisco Alarcón Castro, Jaime Serra García, Carlos Berríos Rodríguez, and José Ule Guineo, as indicated in the report prepared by Captain Eugenio Covarrubias, found on page 2 of military file No. 11/73, a report that also mentions José Luis Felmer Klenner, Óscar Arismendi Medina, Francisco del Carmen Avendaño Bórquez, Mario César Torres Velásquez, and José Mario Cárcamo Garay as guerrillas captured in this operation, along with a list of weapons supposedly found on that occasion.

C.- That following what is related in letter A, a group of the detainees was transferred to the Fresia Police Station, while Mario César Torres Velásquez, José Mario Cárcamo Garay, Francisco del Carmen Avendaño Bórquez, Óscar Arismendi Medina, José Luis Felmer Klenner, and José Antonio Barría Barría (persons executed by order of the War Council) were transferred to the city of Puerto Montt, where they remained detained in the Investigations Police barracks for approximately one month, as can be inferred, among other proofs, from statements made by Gladys Arismendi Añazco (at pages 62, 99, and 563, of Volumes I and II), Miriam Arismendi Añazco (at pages 101, 1961, and 2291 of Volumes I, IV, and V respectively), Blanca Cárcamo Garay (at pages 86 and 72, of Volumes I and II), Luis Gallardo (at page 3145 of Volume VIII), and Jaime Benítez Sepúlveda (at page 3289 of Volume VIII). In such statements, the poor condition in which these men were found, as a result of the torture suffered, is also noted.

D.- That continuing with the events, the 6 men mentioned above, along with other civilians, were placed at the disposal of the Military Prosecutor's Office in times of war in Puerto Montt, initiating case file No. 11/73 (added to this process and viewed at page 72, Volume I), on September 23, 1973.

Later, on October 11, 1973, a War Council was convened, which was composed of Colonel Rubén Rojas (Deceased. Death certificate at page 3364 of Volume VIII), Group Commander Renato Valenzuela (Deceased.

Death certificate at page 3368 of Volume VIII), Lieutenant Colonel Eduardo Partarrieu Navarrete (Deceased. Death certificate at page 3363 of Volume VIII), Frigate Captain Osvaldo Schwarzenberg, Major Patricio Lira Atkinson (Deceased.

Death certificate at page 3367 of Volume VIII), and Squadron Commander Fernando Roca Meroz (Deceased. Death certificate at page 3366 of Volume VIII) as members, and integrated as ad-hoc auditor of the Air Force, Squadron Commander Patricio Rodríguez Encalada, all of which is recorded on page 84 of the aforementioned military file.

E.- That the aforementioned War Council issued a conviction against Mario César Torres Velásquez, José Mario Cárcamo Garay, Francisco del Carmen Avendaño Bórquez, Óscar Arismendi Medina, José Luis Felmer Klenner, and José Antonio Barría Barría, sentencing them to the death penalty for the responsibility they held as perpetrators of the crime of treason contemplated in Article 248 No. 2 of the Code of Military Justice (Pages 92 to 97 of military file 11-73).

Such sentence was executed on October 19, 1973, at 9:00 a.m., at the facilities of the Chilean Air Force located in the Chamiza sector of the city of Puerto Montt (Page 101 of military file 11-73), with the 6 aforementioned convicts dying at the scene, as recorded in the death certificates on pages 14, 17, 19, 22, 54, 187, 758, and in the statements of Carlos Humberto Ovando Méndez (page 424 of Volume I), who transported the lifeless bodies to a FACH van; Juan Carlos Poloni (page 966 of Volume II), who was responsible for verifying the death of the convicts on the day of the execution; and Luis Eduardo Garrido Quiroz (page 146 of Volume I), who examined the bodies and issued the respective death certificates.

F.- That the aforementioned sentence refers to the vague statements of the defendants, statements which, due to the mistreatment received by them, make their words implausible given the conditions in which the detainees were held, making said War Council a predetermined act without foundation to end the lives of these detainees, since as established, among other proofs, in the statements of José Purralef (pp. 95, 2518, and 2719, Volumes I, V, and VI, respectively), Juvenal Sánchez Guarda (pp. 131, 224, all Volume I), Eugenio Covarrubias (p. 338 Volume I), María Langenbech (p. 2289, Volume V), and Carlos Berríos Rodríguez (pp. 3405 to 3407 and 3420 to 3421 vta., all of Volume IX), the defendants did not possess the quantity and types of weapons detailed in the file, nor is it true that they were guerrillas.

G.- That according to the statements of the defendants' defense attorney, Mr. Hugo Ocampo Paniagua (pp. 105, 569, 572 of Volumes I and III respectively), an adequate defense could not be developed in the case as he was not allowed the necessary time (2 days), nor could he familiarize himself with the facts since he could never have direct contact with the defendants for an interview, adding that he perceived a series of contradictions in the detainees' statements, making the defense by a single lawyer laughable.

To this, he adds that they were sentenced through an aberrant retroactive application of Decree Law No. 5 (Declaring that the State of Siege decreed due to internal commotion must be understood as a ‘State or time of War’), as it severely increased the penalties of Law 17.798 on arms control, since in its Art. 3, this Decree Law adds the death penalty to crimes that were only punishable by imprisonment, all with the flagrant contradiction of the norm contained in Article 11 of the Political Constitution in force at that time, which states: ‘No one can be condemned unless they are legally tried and by virtue of a law promulgated before the act on which the trial is based,’ and that contained in the first paragraph of Article 18 of the Penal Code, which in its text in force at the time of the investigated events states: ‘No crime shall be punished with any penalty other than that indicated by a law promulgated prior to its perpetration.’ This defense attorney indicated that there was a preconceived determination to feign a formal process, without granting the accused an effective and real opportunity for defense, despite the severity of the proposed penalties. Regarding the latter, it is necessary to recall what was stated by Ernesto Jhan Barrera on page 1388 (Volume III), where he testifies to having received the order to prepare personnel for the execution of the victims before the War Council took place.

H.- That it should be noted that from reading file 11-73, it was initiated for the crime of infringement of the arms control law and Article 248 of the Code of Military Justice. Regarding the events that began execution on September 15, 1973, according to consideration 2 of the sentence.

Now, the Government Junta issued D.L. No. 3 on September 11, which declared a state of siege for the entire country, published on September 18 of that year. Subsequently, D.L. No. 5 was issued on September 12, but its validity began on September 22, 1973.

This D.L. established that the State of Siege decreed due to internal commotion must be understood as a ‘State or time of War’ and also increased the penalties of the arms control law. Without prejudice to what has already been stated in the preceding letters regarding the simulation of the War Council for the purpose of executing the aforementioned victims, the sentence of the military file in motive 5th classifies the acts against those prosecuted at that time under the penal type of Art. 248 No. 2 (which stated: ‘Shall incur the penalty of major imprisonment in its maximum degree to death: 2nd He who, in case of war and with the purpose of favoring the enemy or harming Chilean troops, commits an action or omission not included in the preceding articles nor constituting another crime expressly punished by the laws’) and for this, it indicates: ‘That although it is true that the accused formed a militia or militarily organized group, it is no less true that their purpose and resolution are constituted by acts that had the precise aim of harming Chilean troops in time of war as can be inferred from the invoked statements…’ More specific is the sentence in motive 2, which expressed: ‘That according to the merit of considerations 10 and 11 and especially to what is provided in Articles 418 and 419 of the Code of Military Justice already cited, it is evident that with the Republic in a state of war and Chilean troops facing the enemy from the very moment or instant they undertook security services against those guerrilla organizations, and even more so the very actions of subduing and reducing those same adversaries, who were paramilitarily prepared with the aim of avoiding greater damages than those already caused by the action of these, it is sufficiently demonstrated that the Chilean troops are facing the enemy.’

I.- That given what is described above, by hierarchical norm of Article 11 of the 1925 Political Constitution cited above and by the specialty of Article 18 of the Penal Code, a law pronounced subsequently that allows for the application of a type or a higher penalty cannot be applied to the detriment of the prosecuted or sentenced person.

In this case, as a state of war was declared, the penal type of Article 248 cited above was applied to the detriment of the sentenced persons. If a state of war had not been declared, this penal type could not have been applied.

It is in this sense that a violation of the principle of non-retroactivity of criminal law occurs, as it harms the prosecuted person and violates the superior norm of the legal system of the time, which was Article 11 of the Political Constitution. In any case, as has been said in the previous letters, the War Council was only a form or a bad example of what is due process.

J.- That in the same line of reasoning, one must also keep in mind what was stated by Carlos Ebensperger on page 1290 (Volume III), in that he pointed out to the general that since the commission of this crime was prior to the date on which the state of war was decreed, the norms of this state could not be applied to him, much less the firing squad, reporting that because of that comment, the general became extremely annoyed and, at the end of September, exonerated him for treason to the homeland, professional ineptitude, and lack of military courage.

K.- That the participants of this War Council, despite having been pointed out by the defense attorney the violation of the Political Constitution of the Republic that was being committed, and with the physical, procedural, and psychological condition of the accused being manifest, obvious, and serious, acted in a predetermined manner and without analyzing the merit of the procedure nor the constitutional and legal norms described above, nor what Prosecutor Ebensperger (a person specialized in the matter) had pointed out to the general, approving the death penalty for the accused without making any objection, so it can only be classified as homicide.

L.- That having performed the preceding analyses, there is no doubt that everything carried out there was only a staging to fulfill their objective, which was to execute the previously identified detainees, which happened, as recorded in the certification on page 101 of file 11-73.

M.- That in addition to what has been stated above, one must consider the tendency of the time, which relates to using military courts in times of war to justify repressive actions without foundation. In this aspect, the report of the National Commission on Political Imprisonment and Torture, the ‘War Councils’ (added to pages 3307 to 3313 of Volume VIII), concludes that in them, neither the character nor the rights of the prisoners were respected, nor were any of the precepts established in international conventions on war considered. ‘Indeed, they limited themselves to receiving and recording information contrary to the accused, omitting any action or diligence that could benefit and exonerate them, even though it was their duty to investigate the truth of the facts and gather the information that would serve to prove them.’

N.- That also based on what is pointed out above, the Most Excellent Supreme Court has ruled regarding War Councils held at the time of the investigated events, invalidating them through the appeal for review, in cases file No. 27.543-16, No. 1488-20, No. 4176-2019, and No. 6889-2019, simple copies of which are attached to this process from pp. 2104 to 2171 (Volume V), from pages 3166 to 3185 (Volume VIII), from pages 3475 to 3487 (Volume IX), and from pages 3488 to 3500 (Volume IX), respectively.”

Source: pjud.cl, December 13, 2023