Military officers (ret.) convicted for the kidnapping of a university student in 1974

On April 4, 1974, as he was preparing to have lunch at his home in Coquimbo, Bernardo Cortés Castro, a 20-year-old university student and militant of the Movimiento de Izquierda Revolucionaria (MIR), was apprehended by unidentified individuals.

The minister in extraordinary visitation for human rights violation cases of the La Serena Court of Appeals, Vicente Hormazábal Abarzúa, sentenced nine retired members of the Army to effective prison terms for their responsibility in the crime of aggravated kidnapping of Bernardo del Tránsito Cortés Castro. The illicit act was perpetrated in April 1974 at the Arica Regiment in the commune.

THE PERPETRATORS

In the ruling (case file 1-2009), Minister Hormazábal sentenced Ariosto Alberto Francisco Lapostol Orrego, Fernando Guillermo Santiago Polanco Gallardo, Luis Segundo Esteban Araos Flores, and Luis Humberto Fernández Monjes to 10 years and one day in prison as perpetrators of the crime.

Meanwhile, José Electo Flores Gallardo, René Patricio Orchand Díaz, Milton Leonardo Torres Rojas, Juan Daniel Marambio López, and Orlando Enrique Hatte Castillo must serve 5 years and one day in prison, also as perpetrators of the kidnapping of Cortés Castro.

DR. GUIDO DIAZ PACI

In the same case, the visiting minister also sentenced military doctor Guido Mario Félix Díaz Paci to 541 days in prison, with the benefit of conditional remission of the sentence, in his capacity as an accessory after the fact.

Regarding civil reparations, the visiting minister granted the claim for damages filed by the victim's siblings, ordering the state treasury to pay each of them the sum of $60,000,000 (sixty million pesos) for moral damages.

DEATH BY TORTURE

The evidence gathered during the investigation phase, which served as the basis for the indictment, allowed Minister Hormazábal Abarzúa to establish the following facts: a.– That, on the afternoon of April 4, 1974, while he was preparing to have lunch with his aunt, Graciela Barahona Cortés, at her home located in the commune of Coquimbo, Bernardo del Tránsito Cortés Castro, a 20-year-old university student and militant of the Movimiento de Izquierda Revolucionaria (MIR), was apprehended without a prior court order or order from a competent authority by unidentified individuals traveling in a private vehicle. b.– That, subsequently, he was taken to the ‘Arica’ Regiment in the city of La Serena, where he was interrogated by personnel of Section II or the Military Intelligence Service (SIM) of said Regiment, led by Fernando Guillermo Polanco Gallardo, and composed of, among others, Héctor Omar Vallejos Birtiola (deceased), intelligence assistant; Luis Esteban Araos Flores, intelligence assistant; Luis Humberto Fernández Monjes, Army Corporal 1st Class; and reserve soldiers René Patricio Orchard Díaz, Milton Leonardo Torres Rojas, Juan Daniel Marambio López, and José Electo Flores Gallardo, who served as operational personnel for said section; Orlando Enrique Hatte Castillo, who served as an administrative officer for the Intelligence Section; and the guards of the political prisoner holding room who were under the charge of Section II, Víctor Hugo Alegre Rodríguez and José Antonio Márquez Vega. c.– That, for his interrogation, the victim was taken to a facility located inside the Regiment, known as the music room or the band room, where torture was applied to detainees undergoing interrogation, a place where he was interrogated under physical duress by the aforementioned operational personnel; and while he was outside said facility, guarded by a member of the aforementioned Section, Orlando Hatte Castillo arrived at the scene and also proceeded to beat him. d.– That, as a result of his interrogation, Cortés Castro was left severely wounded and was left in a room adjacent to the guardhouse of the ‘Arica’ Regiment, where he likely died in the early hours of April 5, 1974. The Army refused to hand over the body to Bernardo Cortés's family, and the whereabouts of his mortal remains remain unknown. e.– That the death of the victim was confirmed by the military unit's doctor, Guido Díaz Pací. f.– That the following day, unidentified officers of the Regiment delivered a sealed envelope to Pascual Cortés Cortés, the victim's father, containing documents stating that he had been killed by a gunshot while attempting to escape, which were used to register his death.

“Having denied Ariosto Lapostol his participation in the events under investigation, to determine it, the court took into account that the 1949 Organic Regulations of General Headquarters and Troop Units (…) state that the Unit Commander, regardless of exercising command in the broadest sense, shall be responsible for the instruction, discipline, and administration of the Unit he commands.

Within the administration, it is his duty to internally assign Officers and Troop personnel and to issue the Unit's Daily Order, which must be drafted by the Commander's Adjutant, along with other general provisions referring to the internal service of the Unit.

From this, it is concluded that what occurred in the Military Unit under his command could not have been unknown to him; he himself affirmed this in his statements,” the ruling states.

Source: diario la region.cl, July 3, 2020

9 military officers (ret.) convicted for the kidnapping of student Bernardo Cortés Castro in 1974

The young man was 20 years old when he was detained by the second section of the Arica Regiment. Minister Hormazábal also ordered the State to compensate the victim's siblings. The minister in extraordinary visitation for human rights violation cases of the La Serena Court of Appeals, Vicente Hormazábal Abarzúa, sentenced nine retired members of the Army to effective prison terms for their responsibility in the crime of aggravated kidnapping of the young Bernardo del Tránsito Cortés Castro in 1974.

The young man was 20 years old at the time of the kidnapping and was studying Spanish Pedagogy at the La Serena branch of the University of Chile. He was detained on April 4, 1974, at his aunt's house in Coquimbo and died as a result of torture.

Minister Hormazábal indicated that it was successfully proven that “the second section of the Arica Regiment participated in the kidnapping.” For this reason, Ariosto Alberto Francisco Lapostol Orrego, the regiment commander at the time, Fernando Guillermo Santiago Polanco Gallardo, Luis Segundo Esteban Araos Flores, and Luis Humberto Fernández Monjes were sentenced to 10 years and 1 day in prison as perpetrators.

On the other hand, José Flores Gallardo, René Orchand Díaz, Milton Torres Rojas, Juan Marambio López, and Orlando Hatte Castillo were sentenced to 5 years and 1 day in prison, also as perpetrators.

Source: cnnchile.com, July 3, 2020

He was a MIR militant: visiting minister convicts nine retired military officers for the kidnapping of a university student in 1974

Effective prison sentences range from 5 to 10 years. The court also granted a $60 million claim for the victim's siblings. The visiting minister of the La Serena Court of Appeals, Vicente Hormazábal, sentenced nine retired members of the Army to effective prison terms for their responsibility in the crime of aggravated kidnapping of Bernardo del Tránsito Cortés Castro.

The illicit act was perpetrated in April 1974 at the Arica Regiment in the commune. “On the afternoon of April 4, 1974, while he was preparing to have lunch, without a prior court order or order from a competent authority, Bernardo del Tránsito Cortés Castro, a 20-year-old university student and militant of the Movimiento de Izquierda Revolucionaria (MIR), was apprehended by unidentified individuals (…).

Subsequently, he was taken to the ‘Arica’ Regiment in the city of La Serena, where he was interrogated by personnel of Section II or the Military Intelligence Service (SIM) (…). For his interrogation, the victim was taken to a facility located inside the Regiment, known as the music room or the band room, where torture was applied to detainees undergoing interrogation, a place where he was interrogated under physical duress by the aforementioned operational personnel (…).

He was left severely wounded and was left in a room adjacent to the guardhouse of the ‘Arica’ Regiment, where he likely died in the early hours of April 5, 1974. The Army refused to hand over the body to Bernardo Cortés's family, and the whereabouts of his mortal remains remain unknown,” states the account of facts established by the magistrate.

Thus, the judge sentenced Ariosto Lapostol Orrego, Fernando Polanco Gallardo, Luis Araos Flores, and Luis Fernández Monjes to 10 years of effective prison. Meanwhile, José Flores Gallardo, René Orchand Díaz, Milton Torres Rojas, Juan Marambio López, and Orlando Hatte Castillo must serve 5 years and one day in prison.

All of the aforementioned sentences will be effective. In contrast, military doctor Guido Mario Díaz Paci will face a sentence of 541 days in prison, with the benefit of conditional remission of the sentence.

Regarding civil reparations, the visiting minister granted the claim for damages filed by the victim's siblings, ordering the State to pay each of them the sum of $60,000,000 for moral damages.

Source: enestrado.com, July 2, 2020

Supreme Court confirms ruling convicting military officers (ret.) for the aggravated kidnapping of a university student

In a unanimous ruling, the Second Chamber of the highest court rejected the appeals for cassation on form and substance filed against the sentence that convicted retired Army members for their responsibility in the crime of aggravated kidnapping of university student Bernardo del Tránsito Cortés Castro.

The illicit act was perpetrated between April 4 and 5, 1974, in the communes of Coquimbo and La Serena. In a unanimous ruling (case file 104.843-2023), the Second Chamber of the highest court—composed of Minister Manuel Antonio Valderrama, Ministers María Teresa Letelier, María Cristina Gajardo, Eliana Quezada, and attorney (i) Eduardo Morales—ruled out any error in the challenged sentence, issued by the La Serena Court of Appeals, which confirmed the first-instance ruling that sentenced the appellants Fernando Guillermo Santiago Polanco Gallardo, Luis Segundo Esteban Araos Flores, and Luis Humberto Fernández Monjes to 10 years and one day in prison; and José Flores Gallardo, René Patricio Orchard Díaz, Milton Leonardo Torres Rojas, Juan Daniel Marambio López, and Orlando Enrique Hatte Castillo to 5 years and one day in prison, as perpetrators of the crime. “Based on the foregoing, and given that the challenged ruling has complied with the requirements that were alleged to be omitted, which is evident from its examination, both in fact and in law, it follows that the defects upon which the motion for nullification rests do not exist. The alleged transgressions of the ruling under study are not accurate, since rather than an absence of considerations, what is being reproached is the reasoning of the lower court judges for deciding in the manner they did. Therefore, the ground for formal invalidation asserted by the defense of Polanco Gallardo and Orchard Díaz could not be established and must be dismissed,” the ruling maintains. The resolution adds: “Without prejudice to what was previously reasoned, which leads to the conclusion of rejecting all the appeals filed against the sentence issued by the La Serena Court of Appeals, it is worth briefly indicating some reasoning regarding two allegations shared by the defense of the convicted, specifically regarding the application of articles 211 of the Code of Military Justice and 103 of the Penal Code, which confirm the dismissal decision already stated.” “As this Court has previously held (among others, in SCS No. 8.945-2018, of February 8, 2021), in accordance with the provisions of article 211 of the Code of Military Justice, outside of cases where the representation of the order given to the subordinate has been omitted, it shall be a mitigating circumstance to have committed the act in compliance with orders received from a hierarchical superior,” it adds. “The phrase ‘shall be a mitigating circumstance’ does not relieve the judge of assessing whether or not the factual assumptions that constitute the mitigating factor exist, nor does it impose a duty to reduce the amount of the sentence if it is recognized, as it corresponds to apply the general rules regarding the influence of modifying circumstances,” the resolution notes. “Furthermore,” it continues, “regarding the non-application of articles 211 and 214 of the Code of Military Justice, it is not possible to consider their application for the case at hand, given that it is not an established fact that the illicit acts were committed in compliance with orders received from a hierarchical superior, as the La Serena Court of Appeals already noted. And even if it were established, the dominant doctrinal position recognizes the reduction of sentence contemplated in articles 65 to 68 of the Penal Code as merely discretionary.” Likewise, the ruling states: “Regarding the second allegation, consisting of the failure to apply the gradual prescription contained in article 103 of the Penal Code, the first-instance sentence established that for crimes against humanity, as is the case, in accordance with the imperative principle of International Law that proscribes non-prescriptibility, the figure of ‘half-prescription’ cannot be applied, considering it a figure separate from prescription and a diminished form of it. It cites Resolution No. 2.391, of November 26, 1968, of the United Nations General Assembly, in which the non-prescriptibility of crimes against humanity is made explicit, since both institutions have their basis in the passage of time as an essential and justifying requirement for their application. Thus, the impropriety of applying total prescription necessarily and undoubtedly reaches partial prescription, since both are based on the same element that is rejected by the international humanitarian penal order, making them inappropriate for crimes against humanity.” For the Criminal Chamber: “Without prejudice to what was pointed out by the ruling, the constant jurisprudence of this Criminal Chamber has used two arguments to dismiss this ground, insofar as it is based on article 103 of the Penal Code.” “On one hand,” it elaborates, “the classification of the illicit act committed as a crime against humanity compels the consideration of International Human Rights Law, which excludes the application of both total prescription and so-called ‘half-prescription,’ understanding such institutes as closely linked in their foundations and, consequently, contrary to the jus cogens regulations originating from that sphere of International Penal Law, which reject impunity and the imposition of sentences not proportional to the intrinsic gravity of the crimes, based on the passage of time. But along with this, it is emphasized that whatever interpretation may be made of the foundation of the legal provision in question, the truth is that the norms to which article 103 of the Penal Code refers grant a mere power to the judge and do not impose an obligation to reduce the amount of the sentence even if several mitigating factors concur, so the alleged vice lacks substantial influence on the operative part of the challenged ruling (among others, SCS Nos. 35.788-2017, of March 20, 2018; 39.732-2017, of May 14, 2018; and 36.731-2017, of September 25, 2018), so under such conditions, such an allegation cannot prosper.” “As has been reasoned, all the appeals filed must be rejected, as the grounds upon which they were based were not established,” it concludes. Therefore, it is resolved that: “the appeals for cassation on substance filed by the defense of the accused Luis Esteban Araos Flores, Luis Humberto Fernández Monje, José Flores Gallardo, Juan Marambio López, Orlando Hatte Castillo, and Milton Torres Rojas are rejected; likewise, the appeals for cassation on form filed by the defense of René Orchard Díaz and Fernando Polanco Gallardo are rejected; all directed against the sentence issued on April 4, 2023, by the La Serena Court of Appeals.”

Music room In the first-instance sentence, the visiting minister of the La Serena Court of Appeals, Vicente Hormazábal Abarzúa, established the following facts: a. That, on the afternoon of April 4, 1974, while he was preparing to have lunch with his aunt, Graciela Barahona Cortés, at her home located in the commune of Coquimbo, without a prior court order or order from a competent authority, Bernardo del Tránsito Cortés Castro, a 20-year-old university student and militant of the Movimiento de Izquierda Revolucionaria (MIR), was apprehended by unidentified individuals traveling in a private vehicle. b. That, subsequently, he was taken to the ‘Arica’ Regiment in the city of La Serena, where he was interrogated by personnel of Section II or the Military Intelligence Service (SIM) of said regiment, led by Fernando Guillermo Polanco Gallardo, and composed of, among others, Héctor Omar Vallejos Birtiola (deceased), intelligence assistant; Luis Esteban Araos Flores, intelligence assistant; Luis Humberto Fernández Monjes, Army Corporal 1st Class; and reserve soldiers René Patricio Orchard Díaz, Milton Leonardo Torres Rojas, Juan Daniel Marambio López, and José Electo Flores Gallardo, who served as operational personnel for said section; Orlando Enrique Hatte Castillo, who served as an administrative officer for the Intelligence Section; and the guards of the political prisoner holding room who were under the charge of Section II, Víctor Hugo Alegre Rodríguez and José Antonio Márquez Vega. c. That, for his interrogation, the victim was taken to a facility located inside the regiment, known as the music room or the band room, where torture was applied to detainees undergoing interrogation; a place where he was interrogated under physical duress by the aforementioned operational personnel; and while he was outside said facility, guarded by a member of the aforementioned section, Orlando Hatte Castillo arrived at the scene and also proceeded to beat him. d. That, as a result of his interrogation, Cortés Castro was left severely wounded and was left in a room adjacent to the guardhouse of the ‘Arica’ Regiment, where he likely died in the early hours of April 5, 1974. The Army refused to hand over the body to Bernardo Cortés's family, and the whereabouts of his mortal remains remain unknown. e. That the death of the victim was confirmed by the military unit's doctor, Guido Díaz Pací. f. That, the following day, unidentified officers of the regiment delivered a sealed envelope to Pascual Cortés Cortés, the victim's father, containing documents stating that he had been killed by a gunshot while attempting to escape, which were used to register his death. g. However, the regiment refused to hand over the body to the victim's family, and witnesses declare having seen him inside the regiment severely wounded as a consequence of torture, but without gunshot wounds, so his whereabouts remain unknown.

Source: pdju.cl, May 20, 2024