In a unanimous ruling, the Second Chamber of the highest court confirmed the sentence that convicted José Figueroa Toro to 12 years in prison as the perpetrator of the crime, and Jorge Barriga Soto to 3 years in prison as an accessory.

The Supreme Court rejected the cassation appeals filed against the sentence that convicted two retired members of the Investigations Police (PDI) for their responsibility in the consummated crime of the qualified kidnapping of Segundo Elías Llancaqueo Millán. The illicit act was perpetrated in the commune of Lautaro in April 1975.

In a unanimous ruling (case file 26.804-2018), the Second Chamber of the highest court—composed of ministers Haroldo Brito, Jorge Dahm, Leopoldo Llanos, and lawyers (i) Diego Munita and Carolina Coppo—confirmed the sentence that convicted José Amador Figueroa Toro to serve a 12-year prison sentence as the perpetrator of the crime, and Jorge Eusebio Barriga Soto to 3 years in prison as an accessory.

“Regarding the second allegation of the same appeal, consisting now of failing to apply the reduction provided for in Article 103 of the Penal Code, that is, the half-prescription, without prejudice to the reasoning regarding this by the challenged sentence which this Court shares, it should be added that Article 103 of the Penal Code is not only contemplated in the same title as prescription, but is developed after it; however, as in this case it is a crime against humanity, which the ruling expressly declares, by application of the norms of International Law and given that both the half-prescription and the cause for the extinction of criminal responsibility are based on the passage of time as a justifying element for their application, the impropriety of applying total prescription necessarily reaches partial prescription, since no reason is seen to recognize time as having the effect of reducing the sanction, given that both institutions are based on the same element that is rejected by the international humanitarian penal order, so that neither of such institutes is appropriate in illicit acts such as the one in question,” the ruling maintains.

The resolution also notes that the facts established by the challenged sentence, issued by the visiting minister Álvaro Mesa Latorre, are as follows:

“ A.- That on a date after September 11, 1973, Segundo Llancaqueo Millán was detained by personnel of the Lautaro Investigations Police, as he was accused of illegal possession of weapons, and was also subjected to physical duress at that location.

On the third or fourth day of his stay at the police station, he led the police officers to a rural sector of the commune of Lautaro in order to show them the alleged site where the weaponry was hidden.

Personnel from the Information Department of the Temuco Investigations Police also joined this operation. Upon arriving at the location and taking advantage of a moment of carelessness by Jorge Eusebio Barriga Soto and the other police officers, Llancaqueo Millán escaped from them, remaining hidden for a long period of time in different sectors near his home, receiving sporadic visits from his then-partner María Eva Ñancuvil Larenas.

B.- That on the night of April 5, 1975, while Llancaqueo Millán's partner was at home with the two young daughters of that relationship, her home was violently raided by a patrol composed of at least 4 officers of the Lautaro Investigations Police, who proceeded to remove her by force from her home.

Then, two of the police officers put her in a pickup truck and took her to the area of the Vega Redonda school, near her home, while the other officers remained in her house with her two minor daughters. Among the officers who participated in the operation, the woman was able to recognize José Amador Figueroa Toro.

C.- That after being left out in the open in the area of the Vega Redonda school, María Eva Ñancuvil Larenas returned immediately to her home, hearing very loud cries of pain, recognizing the voice of Segundo Llancaqueo Millán, to which she did not want to go due to the concern she had for her daughters.

Upon arriving at her house and after checking the health status of the minors, the woman noticed that the hat her partner habitually wore was on the kitchen floor and had not been there previously, so she estimated that Llancaqueo had come to the home while she was being transported by the police officers.

D.- That the relatives of Llancaqueo Millán, who lived a few meters from his home, heard noises that same night caused by the Lautaro Investigations officers, the shots they fired, and cries of pain from Llancaqueo Millán coming from his home, not wanting to leave their houses for fear of what might happen to them.

Even Fernando Garcés Gutiérrez, a teacher at the school in that sector who resided in the vicinity of Llancaqueo Millán's home, heard cries for help and the moans of a person that night, not paying much attention to it. The next day, the relatives verified that there were bloodstains near their house and signs of a body having been dragged toward the exit gate of their property.

E.- That the next day, María Eva Ñancuvil Larenas went accompanied by relatives of her partner to the Lautaro Investigations station to find out what had happened to him. However, José Amador Figueroa Toro indicated to her that they had no news of him, that what she was telling him was false, and that she was probably mistaken or confused.

To this date, Segundo Llancaqueo Millán remains forcibly disappeared.

F.- That the Information Department of the Temuco Investigations Police, which was dedicated to collecting political information on individuals, learned of the detention of Segundo Llancaqueo Millán, the weapons search operation, and his escape.

Personnel from that office, including Carlos Zurita Panguilef, participated in the weapons search operation in the commune of Lautaro, observing that José Amador Figueroa Toro and Jorge Eusebio Barriga Soto participated in it, as well as the maneuvers to thwart the detainee's escape, including shots fired.

Subsequently, after this procedure, Jorge Eusebio Barriga Soto was the object of mockery for what happened and verbal reprimands from his superiors. Some time later, official information arrived at that same Temuco office via telephone from the Lautaro Police Station, indicating that as a result of the detainee's escape, a search was initiated, resulting in his death as a consequence of it.

G.- That according to the merit of the resolution of the Illustrious Court of Appeals of Temuco, on page 837, and notwithstanding the knowledge of the crime by Jorge Eusebio Barriga Soto, he has permanently hidden all information regarding the events that occurred since the time of the facts, not reporting them subsequently to the respective judicial authorities, nor does it appear in the proceedings that a criminal case was initiated to investigate the disappearance of Segundo Elías Llancaqueo Millán. ”

Source: pjud.cl, June 7, 2021