• Cesáreo SOTO, 60 years old, a peasant from the Melozal area, with no political affiliation.
• Vidal del Carmen RIQUELME IBAÑEZ, 45 years old, an animal trader, a sympathizer of the Unidad Popular.
• Rubén ACEVEDO GUTIERREZ, 22 years old, an agricultural worker and peasant leader in Melozal.

On October 2, 1973, the Socialist Party militant Gerardo ENCINA PEREZ, 33 years old, a farmer, was detained upon voluntarily presenting himself at the San Javier police station. From this facility, he was transferred to the Melozal Carabineros police station.

From the aforementioned dates, the relatives of the detainees searched for them intensely and unsuccessfully. The family of one of them had heard that some corpses were abandoned in the vicinity and had seen clear traces of blood on a bridge in the area, which is why they began a search with the assistance of the Melozal fire department.

They found the lifeless body of Rubén Acevedo in the Loncomilla River, along with other corpses that they could not recover, among which those who participated in the rescue claim to have recognized Gerardo Encina.

The body of Rubén Acevedo showed gunshot wounds. The previous information allows for the presumption that these four people were taken by their captors to the bridge over the Loncomilla River, where they were executed and their bodies thrown into the riverbed.

With the detention of all of them being verified; with no official information regarding their subsequent fate; and with one of the bodies having been found; this Commission has formed the conviction that Cesáreo Soto, Vidal Riquelme, Rubén Acevedo, and Gerardo Encina were victims of a grave violation of their human rights for which State agents, who attacked their lives, are responsible.

Source: (Rettig Report)

Santiago de Chile (apro) - The Supreme Court dealt a harsh blow to the desire for justice regarding human rights violations committed during the military dictatorship (1973-1990). In two consecutive rulings, it left the kidnapping and disappearance of four people, which occurred in the early years of the military government, in impunity.

In the first of these rulings, the Penal Chamber of the Supreme Court decided—on November 12—to apply the statute of limitations to the crime of kidnapping and forced disappearance of three people: Vidal Riquelme, Cesario Soto, and Rubén Acevedo.

They were detained by a patrol of police and military personnel that arrived at the village of Melozal (350 kilometers south of Santiago) on September 15, 1973. Both Soto and Acevedo were peasant leaders, while Riquelme was a merchant with leftist ideas.

After being detained in their homes, these three people were executed by firing squad at the Sifón Bridge and thrown into the Loncomilla River. Abraham Riquelme, Vidal's brother, stated in relation to these events that the Fire Department, after being authorized by the Carabineros, proceeded to search the waters of the aforementioned river for the remains of his brother and others who had been executed: "The river was full of corpses that the divers grabbed by the hair, pulled out of the water, and showed to see if it was the one we were looking for, and then they threw them back into the water. You could see the bullet holes in their backs and their chests were destroyed," the aforementioned relative maintained in a judicial statement. The remains of Riquelme, Soto, and Acevedo were never found. In the questioned ruling, the Penal Chamber of the Supreme Court acquitted retired Colonel Claudio Lecaros, who was sentenced—in January 2005—by Judge Jorge Zepeda to five years in prison as the perpetrator of these crimes. That sentence was ratified by the Santiago Court of Appeals in November of that same year. But the highest court annulled the proceedings of the previous instances. Among the reasons it argued for this, it highlighted that it was not considered that Chile was in a "state of war" when these crimes were committed. Decree number 5 of the Military Junta of September 11, 1973, stated that there was "a war" and warned that henceforth "the wartime penalty established by the Code of Military Justice would be applied." This decision by the Supreme Court provided the basis for the decision to reject the application of the Geneva Conventions, which obligate signatory States to respect the life and integrity of prisoners of war. To establish the applicability of the statute of limitations, the Supreme Court determined the existence of the homicide of the peasants. This, despite the fact that the bodies have not been found. This decision allowed for the ignoring of the thesis—until now predominant in this court—that classifies forced disappearance as a "permanent kidnapping." Through this, it is considered that the kidnapping continues to be committed until the victim's body appears. The Supreme Court's decision also goes against the legal thesis—adopted more than five years ago by this Court—that rejects applying amnesty and the statute of limitations in cases of forcibly disappeared persons and murders. This is because they are considered crimes against humanity, which must be punished as determined by international law regarding human rights. The vote in the penal chamber that applied the statute of limitations to the crime committed by Lecaros was three votes to two. The vote of lawyer José Fernández Richards, who replaced the titular minister Alberto Chaigneau, who is in favor of not applying either amnesty or the statute of limitations in matters of crimes against humanity, was decisive in this ruling. The Government of Chile—through the Ministry of Justice—is directly involved in the result of this vote because it appoints the member lawyers. .... (excerpt)

Source: proceso.com.mex 19/11/2007

Date: 19-11-2007

Judge rejects applying amnesty and accuses two former uniformed officers

Minister Jorge Zepeda issued indictments as perpetrators of two kidnappings with disappearance and one kidnapping with homicide against Army officer Claudio Lecaros Carrasco and Carabineros non-commissioned officer José Basilio Muñoz Pozo.

The presiding judge Jorge Zepeda dismissed the application of the Amnesty Law and the statute of limitations in the proceedings he is conducting for two kidnappings with disappearance and one kidnapping with homicide registered on September 16, 1973, in the town of Melozal, inside San Javier, in the Seventh Region.

The magistrate issued indictments as perpetrators of the aforementioned illicit acts against Army officer Claudio Lecaros Carrasco and Carabineros non-commissioned officer José Basilio Muñoz Pozo. The cases refer to the aggravated kidnappings of Vidal Riquelme Ibáñez and Cesáreo Soto, who voluntarily presented themselves on September 15, 1973, at the El Melozal Carabineros police station, from where they were transferred by military personnel from the Linares Artillery School.

On the night of September 16, both were taken to the Loncomilla bridge area, where they were last seen. Meanwhile, Rubén Antonio Acevedo Gutiérrez, who followed the same route as the other two detainees, was found with three bullet holes and a wound in his leg.

The lawyer for the Foundation for Social Assistance and Christian Churches (Fasic), Nelson Caucoto, described the magistrate's decision as being of "extraordinary importance," since "the non-application of amnesty and the statute of limitations not only derives from the permanent nature of the crime of kidnapping, but there are other foundations derived from International Law that likewise prevent the application of that regulation of exemption from criminal responsibility." The jurist explained that cases of forcibly disappeared persons remain outside the scope of amnesty and the statute of limitations. "Also excluded are those executed or crimes of homicide, when they are inserted within the framework of a brutal and systematic political repression, such as the one that occurred in Chile, since in that context, all those crimes acquire the quality of Crimes against International Law, whether they are war crimes or crimes against humanity," he stated. The jurist maintained that "it is an advance that the appropriate terminology is used as Minister Zepeda does, calling these crimes Crimes against Humanity. It is equally significant that for him, there are no proper or improper amnesties, and that he refuses to configure homicides when the bodies have not been found." In the opinion of the plaintiff lawyer, "this resolution is one more sign that our judges are beginning to move directly through International Law as other countries do, turning to that law that the world community has given itself to resolve these types of crimes." "We are facing a resolution that places us in full modernity and that incorporates the legal baggage used in all countries on earth, of which Chile cannot be an exception," he pointed out. Once the investigation was concluded, the magistrate issued an indictment against the former military personnel and dismissed the request of the defense of the accused, who had proposed an exception of prior and special pronouncement consisting of the request for the application of amnesty and the statute of limitations. Judge's arguments 1.- Regarding the aggravated kidnappings of Vidal Riquelme and Cesáreo Soto, these are permanent crimes, so as long as it is not known what ultimately happened to them, it is not possible to apply the amnesty of Decree Law 2191. 2.- It is not possible to accept, as the defenses of the accused assert, that despite the victims' bodies not having been found, their homicides can be presumed; because it has not been proven that the alleged deaths actually occurred and even less that they were by the action of the accused, which could only be determined after their remains have been found, their identification supported, and the causes of death established through sufficient technical reports. 3.- That based on the same reasoning, the exceptions of amnesty and the statute of limitations are rejected. The commission of those aggravated kidnapping crimes has not yet ceased and to this day the victims are disappeared, which prevents, given the continuity of the crimes, determining if they fall within the amnesty period, as well as starting the corresponding count from when they ceased to be committed, to determine the statute of limitations of the action. 4.- Regarding the aggravated homicide of Rubén Antonio Acevedo Gutiérrez and the aggravated kidnapping of Cesáreo Soto and Vidal Riquelme, it is verified that normatively one is in the presence in these cases of what the human legal conscience has come to call crimes against humanity. 5.- Indeed, there are presumptions in all those crimes of the responsibility of State agents, who acted moved by reasons of political persecution, forming part of a generalized and systematic attack against the civilian population, of which the victims were a part. The realization of incriminating types for harmful conduct against humanity is gestated from literal c) of article 6 of the "Charter of the Nuremberg Military Tribunal," which defines Crimes against humanity, namely: murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial, or religious grounds in execution of or in connection with any crime within the jurisdiction of the tribunal, whether or not in violation of the domestic law of the country where they were perpetrated. 6.- That furthermore, the dogmatic heritage inherited from Nuremberg in this matter leads to the 1949 Geneva Conventions on humanitarian law, ratified by Chile in 1951 and which constitute the law of the Republic. 7.- That the creation of a conventional obligation for the States parties of the United Nations to adopt legal measures in an effort to abolish the statute of limitations for this type of crime is given by the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, adopted in 1968. 8.- Crimes against humanity committed both in time of war and in time of peace are imprescriptible. 9.- That imprescriptibility of Crimes against Humanity currently arises as a category of a norm of General International Law (Ius Cogens). 10.- That regarding the mandatory nature of the "ius Cogens" norm regarding the aforementioned imprescriptibility, in our legal system it is the Constitution that recognizes it in article 5, second paragraph, and allows the possibility of incorporating it. 11.- That consequently, there is a prevalence of the international norm of General International Law which determines that amnesty and statute of limitations laws invoked as an exception of prior and special pronouncement in this Case are incompatible with it, because this is determined by international law validly incorporated into the national legal system.

Source: November 25, 2004 El Mostrador

Date: 25-11-2004