The visiting minister for human rights violation cases of the San Miguel Court of Appeals, Marianela Cifuentes, convicted retired Carabineros officer Alejandro Saúl Jofré Melo as the perpetrator of the simple homicide of Mercedes Luzmira Polden Pehuén, committed on May 5, 1979, in the commune of La Granja.

In the ruling (case file 157-2011), the visiting minister sentenced Jofré Melo to 5 years and one day of imprisonment. During the investigation phase, Minister Cifuentes established the following facts: 1° That on May 5, 1979, in the early hours of the morning, while Mercedes Luzmira Polden Pehuén, 17, was in the company of Graciela Guillermina Ossa Olguín, Miguel Ángel Concha Palacios, and Oscar Nelson García Cepeda at a dirt soccer field located inside the Pablo de Rokha neighborhood in the commune of La Granja, known as “el hoyo,” they were stopped by Carabineros officers from the San Rafael Precinct, among them Alejandro Saúl Jofré Melo, who threatened them with the firearm he was carrying, a Ruby Extra brand revolver, .38 special caliber, serial number 701662. 2° That, given the situation, the young Mercedes Polden Pehuén, frightened, tried to take the firearm that Jofré Melo was carrying, and he, making excessive and irrational use of force, fired at her. The projectile entered the upper third of the back of the victim's left axillary region, perforating the lower lobe of the left lung, passing through both ventricles of the heart, and tearing the lower lobe of the right lung, an injury that caused a hemothorax, acute anemia, and death.

Source: elclarin.cl, October 30, 2017

San Miguel Court acquits former Carabineros officer for simple homicide in the Pablo de Rokha neighborhood in 1979.

The appellate court revoked the sentence issued by Visiting Minister Marianela Cifuentes, which had sentenced Alejandro Saúl Jofré Melo to 5 years and one day of imprisonment. In a unanimous ruling, the San Miguel Court of Appeals decreed the acquittal of the former police officer, after establishing that the homicide of Mercedes Luzmira Polden Pehuén, perpetrated on May 5, 1979, in the Pablo de Rokha neighborhood, corresponds to a common crime and not a crime against humanity, and therefore the statute of limitations for criminal action must be applied.

The sentence maintains that the merits of the case do not allow for the conclusion that the events investigated here are demonstrative of police activity or State agents aimed at the destruction of members of a specific opposing or enemy group, but rather that it is a common crime without political connotation or any other order, especially one harmful to persons.

Nor does the circumstance of the crime having been committed during the dictatorship transform the death of Polden Pehuén into a crime against humanity, since it has not been proven that the victim was the object of persecution for political, racial, or religious reasons; rather, her death was the result of the act of a third party, at a time when a police stop was being carried out in the early hours of the morning on a soccer field, but the background of the proceedings does not allow for abandoning the classification of a common crime.

Thus, it does not follow from the background information that the accused had knowledge of and desired through his actions to be part of a widespread attack against the civilian population, responding to a policy of the State or its agents.

The resolution adds that the illicit act investigated does not constitute a crime against humanity, and therefore, by applying the general legal statute, the action arising from it is subject to the statute of limitations.

The event that motivated the instruction of this case occurred on May 5, 1979, and from that date until the filing of the complaint by the Association of Relatives of Political Executions on March 4, 2011, which reactivated the action after being interrupted by the proceedings in the Military Prosecutor's Office between May 7, 1979, and September 1, 1981, it indicates that it remained in that state for more than 15 years.

Furthermore, the ruling points out that Article 94 of the Penal Code establishes that criminal action prescribes with respect to crimes for which the law imposes a penalty of life imprisonment, confinement, or relegation in 15 years.

In turn, Article 95 of the same body of law establishes that the term of the statute of limitations begins to run from the day on which the crime was committed, in the present case, as stated, May 5, 1979.

Thus, in fact, the term to declare the statute of limitations for criminal action in these proceedings has been more than exceeded. Therefore, it concludes that the appealed sentence of October 26, 2017, written on page 1284 and following, in which Alejandro Saúl Jofré Melo was sentenced to the penalties indicated therein, is revoked, and in its place, it is resolved that, because the criminal action of the case is time-barred, the defendant is acquitted of the charges brought against him in this process.

Source: May 11, 2018