The Supreme Court confirmed the first-instance ruling that sentenced the official of the Policía de Investigaciones (PDI) at the time of the events, José Gilberto Galdames Albistur, to a penalty of 5 years and one day in prison, as the perpetrator of the consummated crime of qualified homicide of Raúl Jaime Olivares Jorquera, a crime committed in August 1975 in the commune of Ñuñoa.

In a unanimous ruling (case file 22.379-2019), the Second Chamber of the high court—composed of ministers Haroldo Brito, Manuel Antonio Valderrama, Jorge Dahm, Leopoldo Llanos, and minister María Teresa Letelier—accepted the appeals for cassation on the merits filed by the plaintiffs and, in a replacement sentence, established an error of law in the appealed ruling, issued by the Third Chamber of the Santiago Court of Appeals, which had applied the loophole of "half-prescription" to reduce the first-instance sentence and had also rejected the claim for moral damages presented by the victim's relatives.

Zañartu Barracks

On August 1, 1975, Raúl Jaime Olivares Jorquera, 25 years old, a socialist militant of the "Elenos" faction, which operated in clandestinity, was detained by agents of the Investigative Brigade of Assaults of the Policía de Investigaciones (PDI).

The detention was carried out in an operation conducted for that purpose outside the Cine California located on Calle Irarrázaval in the commune of Ñuñoa.

Raúl Olivares Jorquera was intensely sought by the PDI due to his participation in actions intended to finance resistance activities against the dictatorship through assaults on banking entities. Upon being surprised by the capture operation, Olivares Jorquera attempted to flee but was pursued by his captors, who managed to reach and detain him despite the tenacious resistance put up by the detainee, which resulted in a brutal beating by the PDI officers.

Once subdued, the police officials placed him in a police vehicle and transported him to their barracks at Calle Zañartu No. 1728 in the same commune of Ñuñoa.

At the police unit, his entry as a detainee was recorded, and he was placed in a cell without receiving any medical attention despite the severe and evident injuries the detainee presented. On the contrary, he was subjected to intense interrogations and torture by the agents of the Assault Brigade.

Once the captors' desire for torture was satisfied, they apparently left him in the same cell, where hours later he was found dead. The mandatory autopsy demonstrated that he had been poisoned.

In the first-instance sentence issued in November 2017, the extraordinary visiting minister Mario Carroza only sentenced PDI officer José Galdames Albistur to the penalty of five years and 1 day as the perpetrator of the crime of qualified homicide and acquitted two other accused officers (Nelson Byron Víctor Lillo Merodio and Omar Segundo del Carmen Vega Vargas).

Another PDI officer involved and accused in the crime (Gabriel Antonio Bravo Serrá) passed away during the course of the proceedings.

Later, in June 2019, the Third Chamber of the Santiago Court of Appeals reduced the sentence of the only convicted person to only three years in prison. Against this resolution, the plaintiffs filed appeals for cassation on form and merits before the Supreme Court, an instance that now corrects the errors of the capital's tribunal's criminal ruling and, furthermore, restores the compensation for moral damages to the relatives.

by Darío Núñez

Source: resumen.cl, October 20, 2022

Supreme Court confirms ruling that sentenced (retired) detective for homicide at Zañartu barracks in 1975

In a unanimous ruling, the Second Chamber of the high court accepted the appeals for cassation on the merits filed and, in a replacement sentence, confirmed the first-instance ruling that sentenced the official of the Policía de Investigaciones at the time of the events, José Gilberto Galdames Albistur, to a penalty of 5 years and one day in prison, as the perpetrator of the consummated crime of qualified homicide of Jaime Raúl Olivares Jorquera.

An illicit act committed in August 1975 in the commune of Ñuñoa.

In a unanimous ruling (case file 22.379-2019), the Second Chamber of the high court—composed of ministers Haroldo Brito, Manuel Antonio Valderrama, Jorge Dahm, Leopoldo Llanos, and minister María Teresa Letelier—established an error of law in the appealed ruling, issued by the Santiago Court of Appeals, which had reduced the sentence by applying "half-prescription" and which had rejected the claim for moral damages presented by the victim's relatives by accepting the exception of full reparation argued by the State.

"That, for methodological purposes, it is now necessary to analyze the appeal for cassation on the merits proposed by the Human Rights Program, in relation to the decision of the second-instance judges to apply in favor of Galdames Albistur the provisions of Article 103 of the Penal Code, regarding the gradual prescription of the penalty; it is necessary to take into consideration that the matter under discussion must be analyzed in accordance with international Human Rights regulations contained mainly in the Geneva Conventions, which prevent prescription, total or gradual, regarding crimes committed in cases of non-international armed conflicts. The same conclusion is reached considering both the norms of the Inter-American Convention on Forced Disappearance of Persons and those of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, since, in accordance with that regulation, gradual prescription has the same nature as total prescription," the ruling maintains.

The resolution adds: "From another perspective, legal doctrine on this matter has expressed that its foundations are found in the same considerations of social stability and legal certainty that gave rise to Article 93 of the Penal Code, but that it is intended to produce its effects in those cases in which the realization of the ends provided for prescription does not occur naturally but rather at the end of a gradual process, that is, when the time necessary to prescribe is about to be fulfilled, which would justify the mitigation of the penalty.

However, it is evident that that conclusion is for cases that do not present the characteristics of crimes against humanity, since these are imprescriptible."

For the Penal Chamber: "Consequently, for such mitigation to be appropriate, it is necessary that it be a crime in the process of prescribing, which does not occur in this instance, so the passage of time does not produce any effect, because social reproach does not diminish with time, which only occurs in cases of common crimes."

"On the other hand," it continues, "as anticipated, this is a matter in which international treaties have preeminence, in accordance with Article 5, paragraph 2 of the Political Constitution of the Republic.

Those norms prevail, and the penalty must fulfill the ends that are proper to it and that were enunciated by the United Nations General Assembly in its resolution 2583, of December 15, 1969, which states: 'The punishment of those responsible for such crimes is an important element in preventing such crimes and protecting human rights and fundamental freedoms and in promoting confidence, encouraging cooperation between peoples and contributing to international peace and security.' In the same sense, Article 1.1 of the American Convention on Human Rights establishes the obligation to punish those responsible for crimes against humanity with a penalty proportional to the crime committed."

"Finally, just as this Court has held in numerous previous rulings, Article 103 of the Penal Code is not only contemplated in the same title as prescription, but is developed after it, and as both institutions are based on the passage of time as a justifying element for their application, the impropriety of applying total prescription must necessarily reach partial prescription, since no reason is seen to recognize to time the effect of reducing the sanction, because both situations are based on the same element that is rejected by the international humanitarian penal order, so that neither is appropriate in illicit acts such as the one in this case (among others, SCS Nos. 17.887-2015, of January 21, 2015; 24.290-2016 of August 8, 2016; 44.074-2016 of October 24, 2016; 9.345-2017, of March 21, 2018; 8.154-2016 of March 26, 2018; and 825-2018 of June 25, 2018)," the ruling affirms.

"That finally, this tribunal also takes into consideration that the estimation of gradual prescription regarding those responsible for the commission of crimes against humanity affects the principle of proportionality of the penalty, since the gravity of the acts perpetrated with the intervention of State agents determines that the response to the author of the transgression must be coherent with the affectation of the legal good and the culpability with which they acted; therefore, under such conditions, the sentence incurred in the ground for invalidation on which the appeal for cassation on the merits deduced by the Human Rights Program is based, by accepting the gradual prescription regulated by Article 103 of the Penal Code in a case where it was inappropriate, which had a substantial influence on the decision, since its estimation led the lower court judges to impose on the sentenced person a punishment less than what was legally appropriate, so the appeal under study will be accepted," it concludes.

Compensation Consequently, in the civil aspect, the high court restored the first-instance sentence that ordered the payment of compensation for damages, in the sums of $30,000,000 to the victim's widow; $20,000,000 to each of the Olivares Jorquera siblings; and $40,000,000 to the mother, as well as to the victim's daughter.

In resolving, the Second Chamber reasoned: "That the very special scope of application of the aforementioned reparation laws can in no way claim to become a rule of general application to limit the right to full reparation for damages, since such norms only benefit a specific group of people and, likewise, are constituted only as welfare benefits which, in certain cases, do not achieve a complete and total satisfaction of the damages caused by State agents to the victims of Human Rights violations and their relatives."

"That, therefore, the alleged incompatibility between the compensation requested as moral damages—for having received welfare benefits provided for in special laws—and the alleged legal omission of the victim's siblings—based on an alleged decision of the legislator, which would have favored the compensation of the relatives closest to the affected person—does not correspond with positive legislation, since every time it has been chosen to establish a legal order regarding benefits or possibilities of taking action, there are express provisions that resolve it, which in this case does not happen, since the only limitation that those who claim a damage suffered as a consequence of the actions of State agents have is to demonstrate the existence of said detriment, so that formally it is enough to allege its occurrence and the relationship with the victim to raise the claim," the ruling highlights.

Likewise, the ruling records that: "On the other hand, this Court takes into consideration that the compensatory action raised in these proceedings has its origin in the perpetration of a crime against humanity, in which the responsibility of the State is pursued for the actions of its agents who have committed human rights violations.

In this way, the context in which the facts were verified, with the intervention of State agents protected by a cloak of impunity forged with state resources, imposes their full reparation, and a contrary decision violates the express will manifested by international Human Rights regulations, which are part of the national legal system in accordance with the second paragraph of Article 5 of the Fundamental Charter, which enshrines the right of victims and other legitimate holders to obtain due reparation for all damages suffered as a consequence of the illicit act, for which the appeals will be accepted regarding the civil chapter of the sentence under review."

Zañartu Barracks

In the first-instance sentence, the extraordinary visiting minister Mario Carroza established the following facts:

"1.- That on August 1, 1975, officials of the Investigative Brigade of Assaults of the Policía de Investigaciones de Chile, whose barracks were located at Calle Zañartu No. 1.728, commune of Ñuñoa, acting by virtue of a judicial order, carried out an operation to detain Jaime Raúl Olivares Jorquera on Avenida Irarrázaval, near the Cine California, who was intensely sought for his participation in crimes of robbery with intimidation and his connection with a political movement known as 'Los Elenos';

2.- That Raúl Olivares Jorquera, upon being surprised, decided to flee and was pursued by his captors, who managed to reach and detain him, not without him resisting the detention; once subdued, the police officials placed him in a police vehicle and transported him to the aforementioned police barracks;

3.- That at the police unit, the arresting officials handed him over to the Guard, and the latter recorded in the Logbook that he presented visible injuries, although it omitted, despite being responsible for his deprivation of liberty and guarantors of his custody, to provide him with medical assistance, nor did they refer him to a Health Care Center to verify his injuries, much less contact his relatives or allow him a defender, nor did they place him at the disposal of the Justice system.

On the contrary, the official who acted as Chief of the Guard and who, in turn, had participated in his detention, despite being aware of not having safeguarded any of his fundamental rights, decided with the acquiescence of his superiors to place him in those conditions in a dungeon, and hours later he was found lifeless, as a result of asphyxia secondary to suffocation by aspiration of food vomit, as determined in autopsy report No. 1606/75, performed on August 2, 1975.

4.- That subsequent forensic reports determined that said cause of death can only have its origin in traumatic injuries or the presence of some toxic substance, establishing that from the analysis of the remains it is not possible to rule out the existence of a traumatic brain injury that could produce a loss of consciousness, and also verifying the presence of strychnine in his bones, which is consistent with the cause of death by asphyxia due to aspiration of vomit, which allows for the possibility of a violent death by strychnine poisoning, finally configuring a death in custody."

Source: pjud.cl, October 19, 2022