Visiting judge Jorge Zepeda indicted four former Carabineros and four former military personnel as perpetrators of the aggravated kidnapping of U.S. citizen Boris Weisfeiler, who was forcibly disappeared between January 3 and 5, 1985, in the vicinity of the former Colonia Dignidad.

The individuals prosecuted by the magistrate were identified as Jorge Andrés Cofré Vega, Estorgio Soto Vásquez, José Mauricio Arias Suazo, Antonio Luis Alberto Cortés Aravena, Luis Ricardo Félix Pardo Fernández, Gabriel Humberto Díaz Morales, and Héctor Rolando Aedo Toro, as perpetrators of aggravated kidnapping.

Meanwhile, Guillermo Luis Fernández Catalán was identified as an accomplice to aggravated kidnapping.

As indicated by the Judiciary through its website, on the aforementioned date, Carabineros officials warned "that a hiker, who is wearing military-type clothing, is moving through their surveillance sector on the border in a direction from east to west, and, upon presuming the illegal entry of the stranger through border crossings from Argentina into national territory, they become alarmed due to the military clothing that the stranger is reported to be wearing, which gives the stranger the appearance of an ‘extremist’ trying to enter the country clandestinely."

The resolution added that the uniformed officers detained Weisfeiler, "deprived him of his liberty and decided to hide him," and later reported "deceptively to the authorities that a hiker who was passing through the Los Sauces sector had presumably drowned while trying to cross the river." Furthermore, it was specified that a group of military personnel collaborated with the Carabineros in the "illegitimate deprivation of liberty and concealment."

Finally, the document indicated that the agents "additionally maintain a persistent conduct of concealment to this day regarding the circumstances of the detention and the whereabouts of this American citizen, which ultimately determines his forced disappearance."

Source: adn.cl, August 21, 2012

Supreme Court turns back the clock decades and declares the acquittal of those accused of an aggravated kidnapping during the dictatorship

In a split decision, the Second Chamber of the highest court resolved to approve the acquittal of the Carabineros and members of the Army accused of being the perpetrators of the aggravated kidnapping of Russian-American citizen Boris Weisfeiler Bernstein, perpetrated in January 1985 in the mountainous and border area of the Maule and Bío Bío Regions.

The split decision of the Second Chamber (case file 2.901-2020)—composed of justices Manuel Antonio Valderrama, Jorge Dahm, Leopoldo Llanos, justice María Cristina Gajardo, and justice Diego Simpértigue—ruled out any error in the sentence that decreed the final dismissal of the former uniformed officers Jorge Andrés Cofré Vega, Estorgio Soto Vásquez, José Mauricio Arias Suazo, Antonio Luis Alberto Cortés Aravena, Luis Ricardo Félix Pardo Fernández, Gabriel Humberto Díaz Morales, Héctor Rolando Aedo Toro, and Guillermo Luis Fernández Catalán.

By sharing the classification of the court of first instance and the Court of Appeals, which classified the events as a common crime and, consequently, applied the statute of limitations to the criminal action, it ruled out that it was a crime against humanity.

Consequently, the resolution of the Second Chamber rejected the appeals for cassation filed against the sentence that decreed the acquittal of the former members of the Army and Carabineros, accused as responsible for the crime of aggravated kidnapping of the 43-year-old Russian-American mathematician Boris Weisfeiler Bernstein, who was detained and forcibly disappeared in January 1985 in the mountain range of the seventh and eighth regions.

Boris Weisfeiler was detained on January 4 by Carabineros from the "El Roble" Border Outpost in the commune of San Fabián de Alico, in the Ñuble province, at the confluence of the Ñuble and Los Sauces rivers, located on the communal border with Parral in the mountain zone.

The minority of the Second Chamber, composed of justices Leopoldo Llanos and Jorge Dahm, were in favor of accepting the filed appeals for cassation and, consequently, invalidating the appealed sentence and, in a replacement sentence, sentencing the accused to 10 years and one day of imprisonment, plus legal accessories, as perpetrators of the crime of aggravated kidnapping of Boris Weisfeiler Bernstein, rejecting the statute of limitations for the criminal action because it is a crime against humanity.

In the judicial investigation and in the first-instance ruling by judge Jorge Zepeda Arancibia, it was established that: "(...) the accused had deprived the victim Boris Weisfeiler Bernstein of his liberty and hidden him, starting from January 3 to 5, 1985, and to achieve such a purpose, the involved Carabineros officials, belonging to the 'El Roble' border outpost, deceptively reported that the aforementioned victim had drowned and then disappeared while trying to cross the 'Los Sauces' river."

Furthermore, this activity allegedly began when they initiated the pursuit of the victim, erroneously estimating that he was an extremist entering the country clandestinely, after being warned by locals of the passerby's transit through the sector.

Likewise, according to the accusations, along with these Carabineros officials, there is evidence that would allow charges for the same crime to be brought against the Army officials who were part of the military patrol located in the area near where the accused Carabineros claim the hiker had tried to cross the 'Los Sauces' river.

These Army officials collaborated directly in the criminal act with the former, ultimately imputing to all of them the deprivation of liberty and the concealment of the victim.

Despite the verified evidence, this same judge Zepeda resolved, in March 2016, to acquit the accused, classifying the crime as a common crime and, based on that, arguing the statute of limitations of the crime. This legal absurdity was later ratified by the Santiago Court of Appeals in November 2019 and is now ratified by the Second Chamber in an unusual resolution.

This Supreme Court ruling represents a grotesque setback in terms of justice in human rights cases, because the circumstance that the victim was not "an extremist," as the uniformed officers labeled him to justify their criminal actions, nor did his presence in the country have any political motivation—as demonstrated by the facts and the very foundations of the investigation and judicial ruling—the crime committed against him is based on the existence of a persecutory policy and the intent to eliminate opponents of the dictatorial regime.

According to the majority ruling of the Second Chamber: "That, in this way, by not classifying the act as a crime against humanity and, subsequently, applying the statute of limitations to the criminal action, the lower court judges have not incurred in their sentence the vice denounced by the appellants, so the petitions will be rejected," the ruling concludes.

The victim of this crime, an American mathematician, a professor at Princeton University, who was hiking in the Andes mountains for tourism, was not a political activist, nor did his trip to Chile have political motivations, but he was kidnapped, eliminated, and forcibly disappeared as an expression of a policy of extermination toward potential opponents and a persecutory doctrine executed by uniformed officers and repressive forces against civil society.

All of this makes this crime a crime against humanity, a human rights crime, and not a common crime as it has been classified in a flagrant act of impunity.

This ruling ignores what was established by dozens of preceding rulings adopted by Chilean courts after being urged by international treaties and commitments to apply universal standards of justice regarding human rights and crimes against humanity.

It also ignores the self-criticism that the Supreme Court itself made in September 2013 regarding its behavior and conduct in judicial cases during the dictatorship era and as a consequence of it in subsequent years. This ruling returns to those practices of complicity, granting impunity to uniformed criminals.

by Darío Núñez

Source: resumen.cl, November 1, 2023