Military personnel (Ret.) convicted for the kidnapping of a university student in 1974

The minister on special assignment 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 (pictured), an illicit act perpetrated in April 1974 at the local Arica Regiment.

In the ruling (case file 1-2009), Judge 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 aggravated kidnapping of the student Cortés Castro.

In the same case, the visiting judge sentenced military physician Guido Mario Félix Díaz Paci to 541 days in prison, with the benefit of a conditional remission of the sentence, in the capacity of accessory after the fact.

Regarding civil matters, the visiting judge granted the claim for compensation 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 Judge Hormazábal Abarzúa to establish the following facts:

“a. That, on April 4, 1974, in the afternoon, 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 order from a court or competent authority, Bernardo del Tránsito Cortés Castro, a 20-year-old university student and member of the Revolutionary Left Movement (MIR), was apprehended by unidentified individuals who were traveling in a private vehicle.

b. That, after that, he was taken to the ‘Arica’ Regiment Garrison in the city of La Serena, where he was interrogated by personnel from 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 room who were in 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 subjected to 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 that location 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 reportedly died in the early hours of April 5, 1974. The Army refused to hand over the body to Bernardo Cortés's family, and the destination of his mortal remains remains unknown.

e. That, the victim's death was confirmed by the military unit's physician, Guido Díaz Pací.

f. That, the following day, unidentified officers of the Regiment delivered to Pascual Cortés Cortés, the victim's father, a sealed envelope with documents stating that he had been killed by a gunshot while attempting to escape, with which they requested the registration of his death.”

“Having denied Ariosto Lapostol his participation in the events under investigation in the case files, to determine it, the 1949 Organic Regulations of General Headquarters and Troop Units were taken into account, (...) which 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 the personnel of Officers and Troops and to issue the Daily Order of the Unit, which must be drafted by the Commander's Aide, along with other general provisions referring to the internal service of the Unit.

From this, it is inferred, then, 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 establishes.

Source: davidnoticias.cl, July 3, 2020

The Supreme Court sentenced five former members of the Army, who at the time of the events were members of Section II of the "Arica" Regiment in La Serena, for their responsibility in the crime of aggravated homicide of Francisco Javier Santoni Díaz, 27 years old, who was taken on September 26, 1973, from the public jail of La Serena and executed at the military unit.

In a unanimous ruling (case file 134.116-2022), the Second Chamber of the highest court—composed of ministers Manuel Antonio Valderrama, Leopoldo Llanos Sagristá, minister María Teresa Letelier, and lawyers (i) Diego Munita and Ricardo Abuauad—sentenced Milton Leonardo Torres Rosas, René Patricio Orchard Díaz, and José Electo Flores Gallardo to 10 years and one day in prison as perpetrators of the crime.

Meanwhile, Luis Humberto Fernández Monjes and Juan Daniel Marambio López must serve 5 years and one day in prison as co-perpetrators.

The Supreme Court established an error in the sentence issued by the La Serena Court of Appeals in September 2022, in the part that sentenced Torres Rojas, Orchard Díaz, Flores Gallardo, and Marambio López only as accomplices to the crime, and in a replacement sentence, it convicts them as perpetrators.

The former commander of the aforementioned regiment, Ariosto Francisco Alberto Lapostol Orrego, who was also convicted in the first-instance ruling, passed away during the course of the proceedings. The then-head of Section II of that military unit, former officer Fernando Guillermo Polanco Gallardo, was acquitted in this case.

Regarding the judicial error of the appellate court, the Criminal Chamber points out: "(...) in consideration of the reflections made above, and regarding the participation of the accused Milton Leonardo Torres Rojas, René Patricio Orchard Díaz, José Electo Flores Gallardo, and Juan Daniel Marambio López, the challenged sentence incurs the legal error denounced in the appeal for cassation under examination, .......... since from the established facts, mentioned in the 5th foundation supra, it has been determined that by having served as reserve soldiers of the Army, performing operational duties in Intelligence Section II at the 'Arica' Regiment in La Serena, in compliance with the directives given by the officers, with the knowledge that people detained by them were kept there, subjected to interrogations under torture, and having formed the patrol that, on the night of November 26, 1973, transferred the inmate Francisco Javier Santoni Díaz from the city's public jail where he was being held to the facilities of the aforementioned military compound, where he was killed by the same agents, they possessed co-dominion over the act, contributing functionally to the execution of the act in its entirety, forming part of the repressive group that conceived and decided the execution of the victim, as an operational agent thereof, collaborating in that way and in a decisive manner with his death, since those tasks allowed for the subjection of the victim and the perpetration of the homicide."

"It is not, therefore, a peripheral intervention in the illicit act or cooperation in the illicit act of another, typical of complicity, but rather the performance of executive acts, with each of these accused contributing functionally to the joint or collective realization of the plan as a whole, accepted expressly or tacitly, with the knowledge and will to participate in them, which, under the principle of reciprocal imputation, are constitutive of co-perpetration," it concludes.

Alleged escape plan

In the first-instance sentence, the minister on special assignment of the La Serena Court of Appeals, Vicente Hormazábal, established that on November 26, 1973, Francisco Javier Santoni Díaz was serving a sentence and was being prosecuted and investigated for a common crime in the former Public Jail of the city of La Serena.

Based on information about an alleged escape plan that emerged in the prison, members of Section II of the 'Arica' Regiment of the city of La Serena, led by Fernando Guillermo Santiago Polanco Gallardo, who acted under the orders of the then-colonel Ariosto Lapostol Orrego, commander of the Regiment, began making inquiries inside the prison facility.

Thus, during the afternoon and night of November 26, they interrogated, through torture, a political prisoner whom they threatened with execution by firing squad. During the night of that day, a military patrol led by non-commissioned officer Héctor Omar Vallejos Birtiola (deceased) along with members of said Section II, including non-commissioned officer Luis Humberto Fernández Monjes and reserve soldiers Juan Daniel Marambio López, Milton Leonardo Torres Rojas, René Patricio Orchard Díaz, and José Electo Flores Gallardo, took Francisco Santoni Díaz out of the Public Jail.

They transported him in a vehicle used by that Section II to the facilities of the 'Arica' Regiment in La Serena, proceeding to execute him, causing his death around 00:30 hours on November 27, 1973.

The then-commander of the regiment, Ariosto Lapostol Orrego, through a document called 'Discharge Record', communicated the death of the victim to the Military Prosecutor's Office of the Province of Coquimbo, which was processing the case against several detainees, including Francisco Santoni Díaz, for the crime of mistreatment of an on-duty carabineer, but there was no investigation or judicial case regarding the consummated execution.

by Darío Núñez

Source: resumen.cl, March 6, 2024