In a unanimous ruling, the Second Chamber of the Supreme Court sentenced Pedro Frioli Otonel, Manuel Buch López, Arístides León Calffas, Guillermo Retamales Ruiz, and Germán Valdivia Keller to 541 days of imprisonment, with the benefit of supervised release, for their responsibility in the crime of simple kidnapping of siblings José Miguel and Isabel Verónica Sánchez Larraín (who were children at the time of the events).

The illicit act was committed in August 1974, in the El Belloto sector of the Quilpué commune.

The Supreme Court sentenced retired Navy members Pedro Victorio Frioli Otonel, Manuel Alejandro Buch López, Arístides León Calffas, Guillermo Retamales Ruiz, and Germán Patricio Valdivia Keller to 541 days of imprisonment, with the benefit of supervised release, for their responsibility in the crime of simple kidnapping of siblings José Miguel and Isabel Verónica Sánchez Larraín (who were children at the time of the events).

The illicit act was committed in August 1974, in the El Belloto sector of the Quilpué commune.

In a unanimous ruling (case file 21.037-2020), the Second Chamber of the Supreme Court—composed of ministers Haroldo Brito, Manuel Antonio Valderrama, Jorge Dahm, Leopoldo Llanos, and minister María Teresa Letelier—partially accepted the appeal for cassation on the merits filed by the joint defense of the convicted individuals Retamales Ruz and Valdivia Keller and, in a replacement sentence, recognized only the mitigating factor of the irreproachable prior conduct of the convicted individual Valdivia Keller.

“Regarding the defense’s protest that, with respect to the convicted individual Valdivia Keller, not only was the mitigating circumstance of Article 11 No. 6 of the Penal Code not recognized, but the aggravating circumstance of Article 12 No. 16 of the same body of law was deemed established, despite the fact that on the date the events occurred his criminal record and background were free of blemishes, it must be pointed out that the justification given by the lower court judges for proceeding in such a manner is erroneous in that it cites, as a basis for dismissing his irreproachable prior conduct—and incidentally for deeming the aggravating circumstance of specific recidivism to be established—a conviction dating from the year 2014, that is, a criminal reproach determined forty years after the event that has been judged in these proceedings,” the ruling maintains.

The resolution adds: “Thus, it emerges that the reasons put forward by the court to discard the modifying circumstance of criminal responsibility of irreproachable prior conduct—provided for in Article 11 No. 6 of the Penal Code—and, consequently, to deem the aggravating circumstance of Article 12 No. 16 of the Penal Code to be established, are contrary to law, since from reading the precepts in question it is inferred that the requirement of maintaining an unblemished prior conduct—as well as that of the culprit having been previously convicted for a crime of the same nature—relates to the behavior prior to the commission of the punishable act that is currently under judgment. Thus, by proceeding as they did, the lower court judges incurred an infringement of the law that has substantially influenced the operative part of the ruling, in that they configured with respect to the defendant Valdivia Keller an aggravating circumstance of criminal responsibility that was not applicable, while denying him the mitigating factor of irreproachable prior conduct, which was indeed fully applicable, and incurring an erroneous and more burdensome determination of the penalty attributed to said defendant,” the cassation ruling concludes.

Therefore, it is resolved in the replacement sentence:

“I.- The appealed sentence of December 5, 2017, is confirmed, with the declaration that the accused Germán Patricio Valdivia Keller, Pedro Victorio Frioli Otonel, Manuel Alejandro Buch López, Arístides León Calffas, and Guillermo Retamales Ruz are sentenced, as perpetrators of the consummated crime of simple kidnapping, described and penalized in Article 141, paragraph 1 of the Penal Code, which occurred in the month of August 1974, in the locality of El Belloto, Quilpué commune, to suffer each of them a penalty of five hundred and forty-one (541) days of minor imprisonment in its minimum degree, plus legal accessories.

II.- Meeting the requirements provided for in Article 4 of Law No. 18.216, as amended by Law No. 20.603, with respect to the defendants Germán Patricio Valdivia Keller, Pedro Victorio Frioli Otonel, Manuel Alejandro Buch López, Arístides León Calffas, and Guillermo Retamales Ruz, the fulfillment of the corporal sanction imposed is substituted for the penalty of conditional remission for the same term as that of the custodial sentence imposed—five hundred and forty-one days—with the convicted individuals remaining subject to the discreet observation and assistance of the administrative authority during said period of time.”

Kidnapping

In the first-instance sentence, the visiting minister of the Court of Appeals of Valparaíso, Jaime Arancibia Pinto, established the following facts:

“During the month of August 1974, around 00:00 hours, the house of the victims, who were minors at that time, located in the Seventh Sector of Belloto Sur, was raided by a large number of officials of the Chilean Navy, coming from the El Belloto Aeronaval Base.

The purpose of the raid was to search for and detain the victims' older sister, who was said to belong to the Communist Youth. At the time the events occurred, the victims were in the care of their older sister, as their mother was working as a private nurse in the city of Viña del Mar.

Despite this, she was taken by the uniformed officers to the El Belloto Aeronaval Base. At the moment the naval patrol entered the home, it caused various damages to the dwelling, in addition to stealing the valuables that were inside.

On several occasions, during the detention of the victims, they were struck with the weapons carried by the uniformed officers while they searched and rummaged through the rooms looking for weapons. The naval patrol remained stationed inside the home until the following day, after having slept and consumed all the food that was in the house, thereby keeping the victims kidnapped inside their own home.”

Source: pdju.cl, March 3, 2023