The Second Chamber of the high court confirmed the sentence that condemned Crisóstomo Ferrada Carrasco, Enrique Rebolledo Sotelo, Heriberto Pereira Rojas, Jorge Valdebenito Isler, Jorge Soto Herrera, Luis Yáñez Silva, Luis Soto Pinto, and Leonardo Reyes Herrera to 20 years in prison as perpetrators of the crimes.

The Supreme Court rejected the appeals of cassation on form and substance filed against the sentence that condemned retired military personnel and civilian staff who served at the time of the events at the Maquehue Air Base in Temuco for their responsibility in the aggravated homicide of Hernán Henríquez Aravena and Alejandro Flores Rivera, and the unlawful coercion applied to Jorge Silhi Zarzar, Víctor Hugo Painemal Arriagada, and Sergio Riquelme Inostroza.

These illicit acts were committed between September and October 1973 at the FACh facility.

In a unanimous ruling (case file 14.483-2021), the Second Chamber of the high court—composed of ministers Manuel Antonio Valderrama, Jean Pierre Matus, minister María Cristina Gajardo, and lawyers (i) Eduardo Morales and Ricardo Abuauad—confirmed the sentence that condemned Crisóstomo Hugo Ferrada Carrasco, Enrique Alberto Rebolledo Sotelo, Heriberto Pereira Rojas, Jorge Aliro Valdebenito Isler, Jorge Eduardo Soto Herrera, Luis Osmán Yáñez Silva, Luis Alberto Soto Pinto, and Leonardo Reyes Herrera to 20 years in prison as perpetrators of the crimes.

Meanwhile, Luis Raimundo Quezada Chandía was sentenced to 17 years in prison as the perpetrator of the two aggravated homicides, and Óscar Alfonso Ernesto Podlech Michaud to 12 years in prison as the perpetrator of the aggravated homicide of Henríquez Aravena.

In the case of Pablo Aquiles Alister Contreras, a sentence of 4 years in prison was imposed as an accomplice to simple homicide and as a cover-up for unlawful coercion.

Finally, Jaime Mauricio Echenique Seco, Aníbal Arturo Tejos Echeverría, Enrique Alcides Isaacs Casacuberta, Antonio Sergio Monserrat Mena, and Xavier Fernando Pérez Chávez were sentenced to 3 years and one day in prison, with the benefit of supervised release, for their responsibility as cover-ups for the crimes.

In the case, the high court, acting ex officio, substituted the sentences of 3 years and one day in prison imposed on Berthold Bohn Sauterel, Rodolfo Ernesto Schmied Callejón, Víctor Manuel Volante Leonardi, and Rogelio Olivares Torruella with intensive supervised release for the same period, as cover-ups for the crimes.

The decision to substitute the custodial sentences with intensive supervised release was agreed upon with the dissenting vote of Minister Matus.

"The appeal of cassation on substance proposed by the defense of the convicted Óscar Alfonso Ernesto Podlech Michaud is based, in the first place, on the grounds contained in No. 7 of Article 546 of the penal adjective compendium, referring as infringed Articles 451 to 488 of the same legal body; the rules on ordinary procedure of greater amount, by application of Articles 3 of the Code of Civil Procedure and 43 of the Code of Criminal Procedure, in particular regarding Articles 1698, 1712, and 1713 of the Civil Code; 486 and 488 of the adjective code, regarding presumptions; and, also denouncing an infringement of Articles 15, No. 1 and 14, No. 1 of the Penal Code, 498 to 509 of the Code of Criminal Procedure and 391, No. 1 of the Penal Code, alleging, fundamentally, that the evidence was evaluated against the law, committing an abuse by confusing the circumstances that the law allows to be proven through witnesses, which in the appellant's view cannot serve to prove participation, or through the abusive configuration of presumptions that would not be based on real and proven facts, nor would they be multiple, serious, precise, and concordant," the ruling states.

The resolution adds: "As a second ground, the appeal invokes Article 546, No. 2 of the adjective code, as an incorrect qualification was given to the crime and, consequently, a penalty was applied in accordance with said erroneous qualification, thereby violating the seventh article of the Rome Statute of the International Criminal Court, in accordance with Articles 1 and 2 of Law 20.357, also violating Article 18 of the Penal Code, and 19, No. 3 of the Fundamental Charter, in relation to Articles 391, No. 1 and Articles 93 and 94, all of the Penal Code, since, in his view, a generalized and systematic attack against the civilian population had not been proven, nor would there be any evidence that the accused had conspired to carry out the alleged homicide, whose qualification as an imprescriptible crime against humanity would imply a retroactive application of Law 20.357 and the Rome Statute of the International Criminal Court, in violation of Article 18 of the punitive code."

"As a third ground, the appeal is based on that contained in Article 546, No. 3 of the Code of Criminal Procedure, considering that the sentencer erred by not considering the special mitigating factor of half-prescription, imposing on the fact a penalty higher than that provided for in the law, thereby depriving him of the possibility of obtaining any substitute penalty, which, in his judgment, would also constitute the ground provided for in Article 546, No. 1 of the adjective code, due to the violation of Articles 62, 65 to 69, 93, 94, 103, and 391, No. 1 of the Penal Code and Law 18.216 modified by Law 20.603," it adds.

"Regarding the civil aspects of the sentence," it continues, "it invokes as a ground for substantial cassation that contained in Article 546, final paragraph of the Code of Criminal Procedure, relating to the infringement of Article 41 of the same legal body and 2322 of the Civil Code, in relation to the rules of Articles 1437, 2492, 2497, 2514; and 19 and 22, first paragraph, all of the same legal body, by declaring the civil actions filed against him imprescriptible; and also that contained in Article 546, final paragraph of the Code of Criminal Procedure, that is, the false application of International Human Rights Law norms, which, in his view, do not provide for the imprescriptibility of patrimonial actions, in contravention also of Articles 2332 and 2497 of the Civil Code."

"This substantial remedy cannot prosper either, as it is built on mutually incompatible premises, since it requests that this Court invalidate the appealed sentence and issue a replacement one that acquits him both criminally and civilly for not having his participation in the alleged fact proven and because his responsibility in that same fact is prescribed; and that it declare that he has no responsibility and should be acquitted, but that he is favored by a special mitigating factor that is only applicable to those who are responsible," the ruling affirms.

For the country's high court: "Stated in this way, the appeal becomes ambiguous, which conspires against its nature as strict law, whose purpose is none other than to fix the correct scope, meaning, and application of the laws, in terms that it cannot be admitted that mutually incompatible, subsidiary, or alternative grounds be poured into it, which leave it devoid of the necessary certainty in relation to the vices that support the allegations contained therein.

It is because of the way in which the appeal and its different chapters have been presented that it is not possible to enter into the substance of the matter."

Likewise, the ruling records: "That, for the same reasons expressed in the previous consideration, the substantial cassation remedy proposed by the defenses of Crisóstomo Ferrada, Enrique Rebolledo, Heriberto Pereira, Jorge Valdebenito, Jorge Soto, Luis Yáñez, Luis Soto, and Leonardo Reyes must also be rejected, as it is based on the grounds of Article 546, No. 1, No. 3, and No. 7 of the Code of Criminal Procedure, asking this Court to annul the appealed ruling because—without discussing the commission of the punishable act—there would be no evidence regarding the participation of the accused in the punishable act; or because their participation would be as cover-ups and not as perpetrators; or because the punishable act in which they would have participated would not constitute a crime against humanity, would be repealed, would have a lesser penalty; or would be prescribed; or because, in any case, if they had participated in the punishable act, it would be appropriate to apply the special mitigating circumstance of gradual prescription and that, in any case, they be acquitted of civil liability, allegations whose manifest incompatibility makes it impossible for this Court to fix the applicable law without falling into the same contradictions incurred by the attempted remedy or, to avoid them, arbitrarily choosing one of them, thereby substituting the work of the appellant, which is forbidden for a court in general and for a cassation court in particular."

"The subsidiary nature with which some of these grounds are interposed does not prevent the above, as such a form of presentation is not permitted in this class of appeals as it is expressly admitted by the second paragraph of Article 378 of the Code of Criminal Procedure, in the case of the nullity remedy regulated therein," it highlights.

"That identical defects of interposition," it continues, "suffer the appeals of cassation on substance deduced in favor of the convicted Jaime Echenique, Enrique Isaacs, Antonio Montserrat, and Rodolfo Schmied, which must also be rejected, as they simultaneously invoke as grounds those contained in Article 546, No. 1, No. 3, and No. 7 of the adjective code, requesting their acquittal for not having participated in the prosecuted facts or because they would not constitute crimes against humanity, to conclude by recognizing that participation and that the ruling be annulled for not having been granted a substitute penalty, which is not possible not only because such a decision is not part of the final appealed sentence but, furthermore, because of the optional nature that its granting has for the trial court."

Helicopter crew members

In the first-instance sentence, the minister on extraordinary visit for human rights violation cases of the Temuco Court of Appeals, Álvaro Mesa Latorre, established the following facts:

"A.- That immediately after the military pronouncement on September 11, 1973, the commander of Helicopter Group No. 3 of the Maquehue Air Base, Colonel Andrés Pacheco Cárdenas (deceased), delegated the operational command of the base to the second commander, Benjamín Fernández Hernández (deceased), in order to assume functions in the CAJSI (Command for Jurisdictional Action in Internal Situations), whose office was located in Infantry Regiment No. 8 'Tucapel' in the city of Temuco.

However, he never formally left the command of the aforementioned unit, going there daily to determine the actions to be followed.

B.- That starting from that same day, the new local authority called to active service several Air Force reserve officers, who were civilian pilots, among whom are Berthold Erwin Bohn Sauterel, Pablo Aquiles Alister Contreras, and Emilio Sandoval Poo; and other retired officers who joined the contingent of the Maquehue Base and who, according to their rank, began to fulfill the same operational functions as the rest of the line officers and non-commissioned officers at least during the most critical period of September and October 1973.

These functions included integrating patrols destined to carry out curfew control, guarding public service facilities and bridges, participating in operations of different magnitudes whose purpose was to raid homes and carry out arrests of people contrary to the new regime or supporters of the outgoing administration, integrating helicopter crews with the purpose of transferring detainees from one point to another in the region, piloting private light aircraft with the object of monitoring the coastal zone, and carrying out rounds or guard officer shifts inside the air base.

These last shifts could have been between 12 to 24 hours. It should be noted that a large part of the Air Force reserve officers were also appointed as intervenors in different state companies, so they had to reconcile both activities during the period indicated above, without ceasing to fulfill these tasks, since each branch of the armed forces and order present in the city designated an intervenor per company, so the activities in the intervened companies were always well covered.

C.- That given the need to systematize and coordinate the activities destined to the arrest of people and their transfer to the Maquehue air base for their subsequent interrogation, the second commander Benjamín Fernández Hernández (deceased) organized a group specially selected to deal with intelligence and political prisoner issues, a group that was under his command and that included Lieutenants Ángel Campos Quiroga (deceased), Jorge Freygang Campaña (deceased), Captain Leonardo Reyes Herrera, Sergeant Orlando Garrido Riquelme (deceased), several members of the permanent staff of different ranks among whom are, among others, Luis Arturo Soto Pinto, Heriberto Pereira Rojas, Luis Osmán Yáñez Silva, Jorge Aliro Valdebenito Isler, Jorge Eduardo Soto Herrera, and Enrique Alberto Rebolledo Sotelo; and a civilian employee who had the specialty of nursing named Crisóstomo Hugo Ferrada Carrasco. This group, from that date, gradually stopped fulfilling the functions proper to their specialty to devote themselves to the tasks assigned to them by the high command of the Maquehue base.

D.- That this special group received the alternating and sporadic collaboration of line and reserve officers who, motu proprio or by an expressly received order, joined on some occasions the patrols destined to raid homes and arrest people or witnessed and collaborated in the interrogations of the detainees who remained inside the base, among whom are Aníbal Arturo Tejos Echeverría, Enrique Alcides Isaacs Casacuberta, Antonio Sergio Monserrat Mena, Rodolfo Ernesto Schmied Callejón, Víctor Manuel Volante Leonardi, Xavier Fernando Pérez Chávez, Rogelio Aníbal Olivares Torruella, and Jaime Mauricio del Corazón de Jesús Echenique Seco. The people arrested in the various operations were kept in the guard facilities, the infirmary, in two offices located in the Administrative or Command building, in an old wooden tower that was previously used to store unused material, and which after September 11 was enabled for the indicated purposes, and also on some occasions they were transferred to a hangar located inside the base.

E.- That many of these detainees remained held at the Maquehue base for a period of no less than a week, during which time they were interrogated and tortured by the officers and non-commissioned officers indicated above who were part of the intelligence group specially formed for such purposes, among whom are the second commander Benjamín Fernández Hernández (deceased), Lieutenants Ángel Campos Quiroga (deceased), Jorge Freygang Campaña (deceased), Captain Leonardo Reyes Herrera, Sergeant Orlando Garrido Riquelme (deceased), the non-commissioned officers Luis Arturo Soto Pinto, Heriberto Pereira Rojas, Luis Osmán Yáñez Silva, Jorge Aliro Valdebenito Isler, Jorge Eduardo Soto Herrera, and Enrique Alberto Rebolledo Sotelo; and the civilian employee Crisóstomo Hugo Ferrada Carrasco. The latter, in certain cases, supplied the detainees with drugs, such as pentothal, so that they would confess their alleged crimes. Also during that time, the detainees were taken out to the unit's patio during the day so that they could rest a little or were transferred to the bathrooms existing in the unit, an opportunity in which they were seen and attended to by conscript soldiers who could verify the deteriorated physical state in which these people were. Some of these conscripts had to fulfill sentry duties to guard the place where the detainees were.

F.- That the aerial operations carried out in helicopters on some occasions consisted of transporting Army troops to localities in the IX Region whose mission was to arrest people contrary to the military regime.

These people were transferred to the Maquehue Air Base and also to Infantry Regiment No. 8 'Tucapel' of this city, with the aircraft that transported them landing in both units, as the case may be. In the same way, transfers of detainees were carried out by land from the Maquehue air base to the Tucapel regiment, which were carried out by members of the special group described above and also on some occasion by reserve officers who received an order to such effects.

G.- That on the same day, September 11, 1973, the lawyer Óscar Alfonso Ernesto Podlech Michaud, who was also a reserve lieutenant of the Chilean Army, was called to collaborate with the new regime, who appeared at the 'Tucapel' Regiment to support the management of the Military Prosecutor's Office that operated inside the unit and that was in charge of the second commander, Major Luis Jofré Soto (deceased).

This officer, however, had to assume greater functions as second commander of the Tucapel Regiment shortly thereafter. From that day forward, civilians began to arrive at the regiment who were called to appear before the Military Prosecutor's Office through edicts published in the written press and on the radio, or who were brought as detainees from different points in the region by police and military patrols.

H.- That given the high number of detainees and people called to give statements, the Military Prosecutor's Office was reinforced to carry out its work with officials of the Judiciary who were requested from the Illustrious Court of Appeals of Temuco by the lawyer indicated above, who, acting as ad-hoc prosecutor, made a presentation to the plenary of the appellate court, after which some clerks from different courts and a rapporteur of the Court were assigned in commission of service.

I.- That due to the lack of knowledge in criminal procedural matters added to the weak character he had and the work as second commander of the regiment, Major Luis Jofré Soto (deceased) was delegating functions as military prosecutor to the advisory lawyer of the Prosecutor's Office, Óscar Alfonso Ernesto Podlech Michaud, who began to hold the position of de facto prosecutor, to the point that he carried out jail visits and that lawyers, family members, and even ecclesiastical dignitaries consulted him about the destination of the detainees.

However, Major Jofré Soto (deceased) continued to sign the administrative paperwork most of the time and participated in some interrogations of detainees.

J.- That the people called to appear at the Military Prosecutor's Office and those who were brought as detainees were kept in facilities located next to the guard and in the large gymnasium. Once interrogated by personnel of the Military Prosecutor's Office, by detectives of the Investigative Police attached to the regiment, or by the officers themselves who participated in these activities, some of them were released, others were sent to their homes under house arrest, and others were taken to the public jail where they remained while their procedural situation was resolved.

K.- That also for September 1973 in Infantry Regiment No. 8 'Tucapel' of Temuco there existed the Second Section of Information and Intelligence which was in charge of Captain Nelson Manuel Uldaricio Ubilla Toledo (deceased), under whose dependency some non-commissioned officers of that institution also carried out functions, work that was reinforced after September 11, 1973, with the addition of officials from Investigations and Carabineros, who delivered political information to the aforementioned officer regarding all those people subject to an investigation by the Military Prosecutor's Office. In the same way, some officers, enlisted men, and conscripts of the regiment joined the intelligence tasks.

L.- That as the days went by, the Military Prosecutor's Office and the Second Intelligence Section began to work together to interrogate the detainees who remained held in the jail or in some facility of the Tucapel Regiment.

To articulate this work, two locations were enabled in the military unit, located one between the Headquarters and Mortar companies and another in an old disused gymnasium that was located on the side of the conscript soldiers' 'mess hall'.

In this way, the detainees were taken and brought from the jail to the regiment by military personnel of the Second Section, being interrogated in the Military Prosecutor's Office and physically coerced in some of the facilities indicated above to 'soften them up' before or after these interrogations.

M.- That in both interrogation and torture rooms there were implements to tie up the detainees and apply electricity to different parts of the body, in addition to applying other types of torment such as kicks and punches.

Conscript soldiers and a Carabinero participated in this task, collaborating with Captain Nelson Ubilla Toledo and with the detectives of the Investigative Police who were there. Most of the officers of the 'Tucapel' Regiment and some enlisted soldiers from the Headquarters and Services, Mortar, Hunter companies, and the Second Section also participated in the interrogation and/or torture sessions of detainees in those places, all of whom entered these facilities at different times."

Source: pjud.cl, March 6, 2024