Case No. 7.039-A: José Esaú Velásquez Velásquez and Rubén Alejandro Velásquez Vargas case

Santiago, August 12, 2009. Having seen: In these proceedings No. 7.039-A, conducted before the Chaitén Criminal Court, by resolution of August 14, 2007, which appears on pages 2,193 to 2,316, corresponding to Volume V of these records, the following individuals were sentenced: Juan Hernán Garrido Gutiérrez, Noé Segura Santander, and Enrique Belmar Corral , to suffer the single temporary penalty of fifteen years and one day of presidio mayor in its medium degree, the pertinent legal accessories, and to pay the costs of the trial, for their responsibility as co-perpetrators of the crimes of qualified homicide against José Esaú Velásquez Velásquez, and the qualified kidnapping of Rubén Alejandro Velásquez Vargas , provided for and sanctioned in articles 391, No. 1, first circumstance, and 141 of the Penal Code, perpetrated on October 5, 1973, in the Lago Yunque sector of Palena province. Additionally, Jorge Palma was imposed a sanction of ten years and one day of presidio mayor in its medium degree, the respective legal accessories, and to satisfy the costs of the lawsuit, for his responsibility as perpetrator of the qualified homicide of José Esaú Velásquez Velásquez , already mentioned, and he was acquitted of the charge formulated against him by the indictment of page 1,481, regarding being considered the perpetrator of the crime of qualified kidnapping of José Esaú Velásquez Velásquez (sic); without granting the convicts any of the benefits contemplated by Law No. 18.216. In its civil section, the same decision upheld the claim filed by the plaintiffs Ana Soto Álvarez and Daniel José Velásquez Soto against Juan Hernán Garrido Gutiérrez, Noé Segura Santander, Enrique Belmar Corral, and Jorge Palma , who were ordered to pay compensation for moral damages of $60,000,000 (sixty million pesos). Regarding the other defendant—the Chilean State—the exception raised by the fiscal defense in the main brief of pages 1,984 and 1,515, consisting of the court's lack of jurisdiction, was upheld. The verdict having been appealed by the defendants Garrido Gutiérrez, Belmar Correa, Palma, and Segura Santander at the time of their notifications as shown on pages 2,322 reverse, 2,325 reverse, 2,327, and 2,335, respectively, and the report of the Public Prosecutor's Office having been evacuated on pages 2,340 and 2,341, the Puerto Montt Court of Appeals, by ruling of June 27, 2008, which runs from pages 2,476 to 2,479 reverse, reproduced it with the exception of seven of its reflections, to then introduce a series of modifications, and also taking into account another twelve, it ended up revoking it insofar as it punished Jorge Palma for the charge of being the perpetrator of the crime of qualified homicide of José Esaú Velásquez Velásquez, and in its place declared that he was acquitted of it. The acquittal of the aforementioned Palma was also revoked regarding the charge of being the perpetrator of the crime of qualified kidnapping of Rubén Alejandro Velásquez Vargas (sic), and, in its place, he was sentenced as the perpetrator of that crime to three years and one day of presidio menor in its maximum degree, the corresponding legal accessories, and the payment of the litigation costs, with the alternative benefit of supervised release, which will extend for the same period assigned to his corporal punishment. Furthermore, the appealed award was confirmed in all other respects, with the declaration that Juan Hernán Garrido Gutiérrez, Noé Segura Santander, and Enrique Belmar Corral remain definitively sentenced to suffer two penalties of three years and one day of presidio menor in its maximum degree each, the relevant legal accessories, and to pay the costs of the case, for their responsibility as co-perpetrators of the crimes of qualified kidnapping of Rubén Alejandro Velásquez Vargas and simple homicide against José Esaú Velásquez Velásquez, without granting them any of the benefits of Law No. 18.216. Against this pronouncement, the defense of the four defendants filed an appeal for cassation on the merits, in the main brief of pages 2,481 to 2,498, based on literals 2, 3, and 7 of article 546 of the Code of Criminal Instruction. 2 On page 2,501, the files were brought for consideration. Considering: First: That the present appeal is based on numerals two, three, and seven of article 546 of the Code of Criminal Procedure, consisting of the fact that the sentence, making a mistaken qualification of the crime of kidnapping under article 141 of the Penal Code, applied the penalty in accordance with that erroneous qualification, which also violates the pro reo principle enshrined in article 19, number 3, paragraph 7, of the Political Constitution of the Republic. Then, for having qualified as a crime an act that criminal law does not consider as such, as it would be a legal fiction; and finally, for having violated the laws regulating evidence, provided that this contravention substantially influences the dispositive part of the resolution, by sentencing their defendant (without specifying which one), disregarding the merits of the process. Second: That the seventh ordinal of article 546 of the Criminal Adjective Code is developed regarding the violation of the guidelines regulating evidence. It is maintained here that the inquisitorial criminal procedure requires courts to play an active role in accessing the material truth of the facts and that articles 6, 91, 107, 109, and others of the aforementioned order so provide. Regarding article 109, the duties of the court in the matter are synthesized there, by imposing the duty to investigate with zeal; article 6 states: "Whatever the court called to hear a criminal trial, the learned judges with criminal jurisdiction are obliged to carry out the first investigative steps of the summary"; article 91 prescribes: "once the complaint is received and without further procedure, the judge shall immediately proceed to verify the reported fact"; article 107 stipulates: "before continuing the criminal action, whatever the form in which the trial was initiated, the judge shall examine whether the background or data provided allow establishing that the criminal responsibility of the accused is extinguished. In this case, he shall pronounce a reasoned order beforehand on this point, to refuse to proceed with the trial"; and in turn, article 109 orders that "the judge must investigate, with equal zeal," not only the facts and circumstances that establish and aggravate the responsibility of the accused, but also those that exempt them from it or extinguish or mitigate it. Third: That it is highlighted by the appellant that all the norms cited in the previous reasoning were ignored, since the military courts took timely knowledge of the facts in 1973, but did not sanction any of the accused. Subsequently, the Criminal Courts of Chaitén and Coyhaique dictated the first investigative steps when more than ten years had passed since the events occurred and the criminal action and the penalty were prescribed, and that political pressure has prevented finding out and evaluating in the ruling the circumstances that extinguish the criminal responsibility of the perpetrators, since it was not investigated in a timely manner and only after thirty-five years had passed since the events was the edict issued, motivated more by political pressure than by the duty to do justice. It is added that article 160 of the Code of Civil Procedure stipulates that: "...sentences shall be pronounced according to the merits of the process," which obliges the judge to weigh all the evidence rendered in the case, without excluding or omitting any of them, so that by sentencing their "defendant," the legal obligation imposed by the aforementioned provision has not been fulfilled. Fourth: That, in the same line of thought, Title II of Book Two of the Procedural Code of Penalties establishes a legal evidence regime for ordinary criminal procedure; thus, all evidence rendered in the case must be invoked and weighed in the verdict in accordance with said precept. However, when analyzed in a joint and systematic manner, it is necessary to conclude with the acquittal of their clients, since the illicit act of kidnapping with which they are charged does not exist, the "accused" being sentenced as... [Text truncated in source]

Source: Judiciary, August 14, 2007

Supreme Court issues final sentence in Human Rights case

The Supreme Court issued a final sentence in the investigation into the qualified kidnapping of Rubén Alejandro Velásquez Vargas and the homicide of José Esaú Velásquez Velásquez, which occurred starting October 5, 1973, in the Lago Yunque sector, Palena province, Los Lagos Region.

In a split decision, the ministers of the second chamber of the highest court determined a penalty of three years and one day for the former carabineros: Jorge Palma for the homicide of the farmer. The same sentence was given to Juan Hernán Garrido Gutiérrez, Noé Segura Santander, and Enrique Belmar Corral for the kidnapping of Velásquez Vargas.

All were granted the benefit of supervised release. In the civil aspect, the claim for compensation and damages by the victims' relatives, Ana Soto Álvarez and Daniel José Velásquez Soto, was upheld, ordering the convicted parties to pay the sum of $60,000,000 for moral damages. The claim against the Chilean State was dismissed, upholding the exception of the court's lack of jurisdiction.

Source: elmostrador.cl, August 13, 2009