As highlighted by the plaintiff lawyer, Pablo Fuenzalida, this resolution "undoubtedly brings justice to the family members of Ernesto Zúñiga 38 years after the crime was committed, since the first-instance ruling allowed the perpetrators to serve their sentences in freedom as they had only been convicted as accomplices." The Third Chamber of the Santiago Court of Appeals increased the sentences of three retired members of the PDI for the homicide of the constitutionalist former sailor and one of the military leaders of the Movimiento de Izquierda Revolucionario (MIR), Ernesto Enrique Zúñiga Vergara, which occurred on January 16, 1982, in the commune of Pudahuel. The Chamber, composed of ministers Adelita Inés Ravanales, Jenny Book, and Verónica Cecilia Sabaj, unanimously reconsidered the participation of Martiniano Arias Fernández, Manuel Flores Jorquera, and José Hernán Huaiquimil Uribe, changing their status from accomplices to perpetrators of simple homicide, increasing their sentences from 3 years to 5 years and one day of presidio mayor in its minimum degree. It should be noted that the appellate court rejected the partial statute of limitations for the criminal action, considering that this institution is inapplicable to crimes against humanity. For the plaintiff lawyer, Pablo Fuenzalida, of the law firm Caucoto Abogados, this resolution "undoubtedly brings justice to the family members of Ernesto Zúñiga 38 years after the crime was committed, since the first-instance ruling allowed the perpetrators to serve their sentences in freedom as they had only been convicted as accomplices." Ernesto Zúñiga was 29 years old when he was intercepted by the three aforementioned PDI members on January 16, 1982. This crime took place during the MIR's "return operation" in the early 1980s. As established in the investigation, Zúñiga, upon noticing the presence of investigative officers while walking along Calle Teniente Cruz, in the commune of Pudahuel, boarded a public transport bus where he was ultimately murdered. His autopsy showed that he received at least 24 bullet impacts.

Source: elmostrador.cl, August 6, 2020

Supreme Court confirms ruling convicting retired detectives for 1982 homicide in Pudahuel

The Second Chamber of the highest court rejected the cassation appeals filed against the sentence that convicted Martiniano Arias Fernández, Manuel Flores Jorquera, and José Huaiquimil Uribe to 5 years and one day of imprisonment as perpetrators of the crime of simple homicide of Ernesto Enrique Zúñiga Vergara.

The illicit act was committed in January 1982, in the commune of Pudahuel. The Supreme Court rejected the cassation appeals on form and substance filed against the sentence that convicted three retired officers of the Policía de Investigaciones as perpetrators of the consummated crime of simple homicide of Ernesto Enrique Zúñiga Vergara.

The illicit act was committed in January 1982, in the commune of Pudahuel. In a split decision (case roll 104.326-2020), the Second Chamber of the highest court—composed of ministers Haroldo Brito, Manuel Antonio Valderrama, Jorge Dahm, Leopoldo Llanos, and minister María Teresa Letelier—confirmed the challenged sentence, issued by the Santiago Court of Appeals, which sentenced Martiniano Arias Fernández, Manuel Tibaldo Flores Jorquera, and José Hernán Huaiquimil Uribe to 5 years and one day of imprisonment as perpetrators of a crime against humanity. "That, consequently, the concept of a crime against humanity—as appears from the examination of the historical evolution of doctrine and jurisprudence—implies, by requirement of its essential core, that it be the result of the illicit activity of some group or sector of power—usually the State or the government that holds command of it—tending toward the affectation, diminution, or elimination of the members of all or part of a sector or group that it considers contrary to itself or to certain interests it declares superior, in a systematic manner and without limit in the use of instruments or means aimed at that end," the ruling states. The resolution adds: "That in this case, as indicated by the first-instance ruling in its twentieth motive—maintained in the second-degree sentence and deepened in the first consideration of this one—it establishes that the illicit act in question has the character of a crime against humanity, as it was perpetrated by State agents in a context of grave, massive, and systematic human rights violations, with the victims being an instrument within a policy on a general scale of persecution and extermination of anyone who participated in an ideology different from that professed by those who held power at that time, and also of a social character, which institutes more than sufficient reasons to consider it as a crime against humanity and thus discard that it was a police event." "That in accordance with the qualification concluded in the preceding consideration, it is not possible to apply the statute of limitations as a formula for the extinction of criminal responsibility, as it is an exceptional situation due to the gravity of the acts, which were executed by the apparatus of power and in its name, disregarding human dignity," it adds. For the Penal Chamber: "On this point, the sentence of the Santiago Court of Appeals, in its second consideration, accounts for said reasoning and concludes correctly in its final part, resolving: 'In summary, in matters of Human Rights, the imprescriptibility of international crimes or crimes against humanity, also known as 'human rights violations,' has been established in the international sphere, given the nature of the protected legal interest, the essential rights of the human person, with an international treaty on the matter existing in this regard, which even takes precedence over the Constitution, as it constitutes a supra-constitutional source. Indeed, Chile cannot apply the statute of limitations to those crimes that constitute a violation of the essential rights of the human person, since there is a Constitutional imperative—by recognizing that Chile has as a limit for the exercise of its sovereignty the essential rights that emanate from human nature, without limitation—and a legal one for it, as our country is a signatory State to the Rome Statute of the International Criminal Court, remaining obligated by the 1969 Vienna Convention on the Law of Treaties, which is incorporated into the domestic law of our country, not to frustrate its object and purpose before its entry into force, so if the various situations described by the Statute of the International Criminal Court that have occurred in Chile were to remain unpunished, the State of Chile would be violating the object and purpose of this International Convention'." "In this way, having adequately established that one is in the presence of a crime against humanity and the consequent imprescriptibility thereof, the second chapter of the attempted appeal must likewise be dismissed," it concludes. Therefore, it is resolved: "That the cassation appeals on substance filed by the defense of the accused Martiniano Arias Fernández and Manuel Tibaldo Flores Jorquera are rejected; as well as the cassation appeals on form and substance filed by the defense of José Hernán Huaiquimil Uribe; in the same way, the cassation appeal on substance filed by the Association of Relatives of Political Executions is rejected; all directed against the sentence issued on August 3, 2020, by the Santiago Court of Appeals." Decision adopted with the dissenting votes of Minister Valderrama and Minister Letelier, who were in favor of accepting only the seventh cause of Article 546 of the Code of Penal Procedure (having violated the laws regulating evidence, provided that this infringement substantially influences the dispositive part of the sentence), invoked in the substantive cassation appeal by the defense of Arias Fernández and, consequently, "to consider the incomplete exculpatory circumstance of Article 11 No. 1, in relation to 10 No. 4 of the Penal Code, as concurrent, and to quantify the penalty at three years and one day of presidio menor in its maximum degree, in accordance with Article 67 of the substantive code." Execution In the first-instance sentence, the extraordinary visiting minister Mario Carroza Espinosa established the following facts: "1.- That, on November 18, 1981, as a result of various bank robberies and the homicides of three officials of the Policía de Investigaciones de Chile in an attack, the leadership of that institution ordered its investigation to a special operational group, handing the leadership to Commissioner Martiniano Arias Fernández of the Assault Investigation Brigade (B.I.A.) staff; 2.- That by virtue of this mandate, the Brigade carried out various inquiries, which resulted in the identification of one of the persons allegedly linked to the investigated events, that is, the member of the Movimiento de Izquierda Revolucionaria, Ernesto Enrique Zúñiga Vergara, who at that time used the political names 'Carlos' or 'Esteban', and it was established based on testimonies collected from other detainees that at some point he was to attend a house located on Calle Teniente Cruz in the commune of Pudahuel; 3.- That upon having this information, on January 16, 1982, near noon, a surveillance operation was arranged in the vicinity of Calle Teniente Cruz by Martiniano Arias Fernández, awaiting the possible arrival of Ernesto Zúñiga Vergara, who, upon approaching the place, perceived the presence of the police in the sector and decided to hurriedly board a public transport bus, an action that led the police officers to follow him with their vehicles; 4.- That in that pursuit, the Brigade agents managed to reach him at the intersection of Calle Teniente Cruz and José Joaquín Pérez, and from one of the vehicles, Martiniano Arias Fernández descended with two of his subordinates, Manuel Flores Jorquera and José Hernán Huaiquimil Uribe, with whom he boarded the vehicle in which Ernesto Zúñiga Vergara was traveling, while the rest of the police officers accompanying them surrounded it externally; 5.- That, once in the vehicle, the officers Martiniano Arias Fernández and Manuel Flores Jorquera immediately went to the rear seats where the victim was located, who, upon realizing the situation, allegedly proceeded to extract a firearm from his clothing, regarding which it has not been possible to establish in the case files that he used it, since he was wounded before by the police officers, who, in an excessive and indiscriminate action, used their firearms to eliminate him, both those who boarded the vehicle and those who were outside, acting evidently with the sole purpose of executing him, since his body in the autopsy presented at least twenty-four bullet impacts, a circumstance that undoubtedly caused his immediate death at the scene."

Source: pjud.cl, January 8, 2024