The visiting judge for human rights violation cases at the Concepción Court of Appeals, Carlos Aldana Fuentes, issued a sentence in the investigation he is conducting regarding the crime of simple homicide of Marcos Hernán Montecinos San Martín, an illicit act perpetrated in the city in September 1975.

In the resolution (case file 8-2011), the visiting judge sentenced the former Carabineros first sergeant Guillermo Muñoz Espinoza, in his capacity as the perpetrator of the crime, to a penalty of 3 years and one day of imprisonment, with the benefit of supervised release, in addition to the accessory penalties of absolute perpetual disqualification for political rights and absolute disqualification for public offices and positions.

During the investigation phase, Minister Aldana was able to establish that at approximately 8:50 PM on September 3, 1975, while university student Marcos Hernán Montecinos San Martín was walking along Calle Edmundo Larenas, coming from the Central Library of the Universidad de Concepción, upon reaching the corner of Calle Victoria, he was intercepted by a vehicle carrying two officials from the Regional Intelligence Center (CIRE), Carabineros corporals Guillermo Muñoz Espinoza and Ernesto Floridor Jara Rivas (deceased). "One of these individuals ordered Montecinos San Martín to stop.

Upon failing to comply with the order, the two agents of the State's armed force got out of the vehicle and fired at him, inflicting two wounds, one in the left nipple and another in the back, one of which compromised his heart.

He was left in agony and passed away while being transported to a medical center due to acute anemia, a result of the aforementioned injury caused by the bullet fired by the State agents," the ruling indicated. Thus, Muñoz Espinoza, alias "El Cazuela," is favored by the light sentences and benefits of impunity that Minister Aldana is accustomed to applying.

Source: resumen.cl, December 13, 2016

Concepción Court sentences retired Carabinero to 5 years and one day of effective imprisonment for homicide on a public street in 1975.

The appellate court increased the sentence that Guillermo Muñoz Espinoza must serve from 3 years and one day to 5 years and one day of imprisonment, in his capacity as the perpetrator of the crime, after establishing that the mitigating factor of the convicted person's irreproachable prior conduct does not qualify as "highly qualified." In a unanimous ruling, the Concepción Court of Appeals increased to 5 years and one day of effective imprisonment the sentence that the former Carabineros corporal must serve for his responsibility in the crime of homicide of Marcos Hernán Montecinos San Martín, an illicit act perpetrated on September 3, 1975, in the city center. The sentence details that, as stated in the second consideration of the appealed judgment, the evidentiary elements brought to the process, which are detailed in the first consideration thereof, constitute judicial presumptions that satisfy the requirements of Article 488 of the Code of Criminal Procedure. These allow for the accreditation that on September 3, 1975, at approximately 8:50 PM, while Marcos Montecinos San Martín was walking along Calle Edmundo Larenas—located on the side of the Universidad de Concepción—from the Central Library of that institution, upon reaching the corner of Calle Victoria, he was intercepted by a vehicle carrying two officials from the Regional Intelligence Center, Carabineros corporals Guillermo Muñoz Espinoza and Ernesto Floridor Jara Rivas. They ordered the victim to stop, and upon his failure to comply with said order, the two police officials fired at him, inflicting 2 wounds, one of which compromised his heart. He passed away while being transported to a medical center due to acute anemia, facts that constitute the crime of simple homicide against the person of Marcos Hernán Montecinos San Martín, provided for and sanctioned in Article 391 No. 2 of the Penal Code. The resolution adds that regarding the request stated in the previous motive, and concerning the appropriateness of the mitigating factor of irreproachable prior conduct of the accused Muñoz Espinoza, these judges agree with the lower court that such a modifying circumstance of criminal responsibility does indeed occur in this case, as the defendant's criminal record and the testimonies of two witnesses are in the file, allowing it to be sufficiently accredited. However, regarding the discussion of whether it is possible—considering the background of the process—to grant the character of "highly qualified" to the aforementioned mitigating circumstance of responsibility provided for in Article 11 No. 6 of the Penal Code, this Court has reached the conviction that such a qualification is not appropriate. There is no evidence in the case file that allows for certainty or the presumption that the convicted person has been an example to society, or that he has contributed any intellectual, artistic, or other nature of contribution to consider his life blameless and an example for all; in other words, that he has truly been an outstanding person for society or his environment. The ruling further points out that for the qualification of irreproachable conduct, one must go beyond the mere lack of a criminal record, as it is necessary to establish that the individual has also stood out in their environment in other activities, as indicated above. This has not occurred in this case, since, in addition to the clean criminal record, only the statements of two people were added, who mention nothing about conduct that stood out prior to the crime in question, instead reproducing facts relative to his subsequent conduct, which is irrelevant to the matter that must be considered when performing the recognition and estimation required by the legal norm. It adds immediately that it should be considered, moreover, that the accused was a police official at the time, so such an absence of records, by itself, does not allow for such a determination, as the aforementioned circumstance is a minimum requirement for a person who exercises such functions, and is therefore not a factor of behavioral qualification in this particular case. Then, it affirms that for all the above, these judges consider that by having qualified the mitigating circumstance of irreproachable prior conduct, the appealed sentence contradicted Articles 68, 68 bis, and 69 of the Penal Code, since it applied a penalty lower than what was legally appropriate. Therefore, it will be revoked in this part as will be stated later, without prejudice to the fact that said mitigating factor will be maintained in its effects as a simple mitigating circumstance of responsibility. Therefore, it concludes that the final sentence of December 7, 2016, which appears on page 889 and following, is revoked in the part that recognized the mitigating circumstance of irreproachable prior conduct of the accused Guillermo Muñoz Espinoza as "highly qualified." In its place, it is declared that such a modifying circumstance is recognized without any qualification, and consequently, the accused Guillermo Muñoz Espinoza is sentenced in his capacity as the perpetrator of the crime of simple homicide to the detriment of Mr. Marcos Hernán Montecinos San Martín, perpetrated in Concepción on September 3, 1975, provided for and sanctioned in Article 391 No. 2 of the Penal Code, to the penalty of five years and one day of major imprisonment in its minimum degree, plus accessory penalties of absolute perpetual disqualification for public offices and positions and political rights, and absolute disqualification for professional titles for the duration of the sentence, plus the payment of the costs of the case.

Source: diarioconstitucional.cl, May 13, 2018