The Supreme Court rejected the appeals in cassation filed against the sentence that convicted two retired Carabineros officers from the former San Rafael Station for their responsibility in the crime of aggravated kidnapping of Justo Segundo Flores Martínez and Luis Enrique Pérez Balbontín.

These crimes were committed in October 1973 in the Pablo de Rokha neighborhood, in the current commune of La Pintana.

In a unanimous ruling (case file 16.830-2018), the Second Chamber of the high court—composed of ministers Carlos Künsemüller, Haroldo Brito, Manuel Antonio Valderrama, Jorge Dahm, and Leopoldo Llanos—confirmed the challenged sentence issued by the San Miguel Court of Appeals, which ratified the sentences to be served by Ricardo Morales Gallardo, 10 years and one day of imprisonment as the perpetrator of both kidnappings; and Miguel Arias Navarrete, 6 years of imprisonment for his participation as a perpetrator in the aggravated kidnapping of Pérez Balbontín.

"That, without prejudice to the fact that, having already dismissed the 1st and 5th grounds of the aforementioned article 546, the also invoked No. 7 of the same precept cannot prosper in isolation, it is worth noting that it does not even demonstrate the infringement of any rule regulating evidence that would allow for the alteration of the facts established in the appealed sentence.

Indeed, article 109 of the Code of Criminal Procedure establishes a mandate for the judge in the conduct of the investigation, but not in relation to the assessment of evidence when issuing a sentence, the onus probandi, or its admissibility.

Article 456 bis of the Code of Criminal Procedure, as the jurisprudence of this Court has been uniform, does not constitute a rule regulating evidence, since it is only a programmatic provision that indicates to judges the degree of conviction they must achieve to issue a conviction, but it does not indicate the weight of the evidence, nor does it reject a means of proof that the law allows, nor does it admit one that it repudiates, nor does it modify, deny, or alter the probative value that the law assigns to the various established means (SCS Case No. 5000-17 of May 29, 2017)," the ruling warns.

The resolution adds: "Regarding article 488 of the Code, that provision establishes various criteria for judicial presumptions to constitute complete proof of a fact, of which this Court has clarified through repeated jurisprudence that only the content of ordinal 1° constitutes rules regulating evidence that can be reviewed in cassation—that is, that judicial presumptions must be based on real and proven facts and not on other presumptions, whether legal or judicial—and that of ordinal 2°, the requirement of the multiplicity of presumptions.

The other requirements, that is, that the presumptions be serious; precise, in such a way that one cannot lead to different conclusions; direct, so that they lead logically and naturally to the fact deduced from them; and that they agree with one another, so that the facts are connected and all lead, without any contradiction, to the same conclusion that the fact in question occurred, cannot be considered rules regulating evidence, since it is left to the trial judges to affirm or deny their fulfillment as a result of an exercise of weighing and assessing the set of judicial presumptions, a function that is exclusive to the trial judges and cannot be controlled by this Court (SCS Case No. 5000-17 of May 29, 2017)."

For the high court: "Well then, the appeal does not specify which numeral of article 488 has been omitted, only indicating that none of its criteria are met and, consequently, it does not explain how any rule regulating evidence contained in that precept was violated, limiting itself to proposing a different appreciation and assessment of the background information, an exercise proper to an appeal but foreign to one of a cassation nature.

A correct and competent examination regarding the infringement of the aforementioned article 488 implies respecting the prohibition this Court has against delving into a new analysis of the weighing performed by the trial judges, as said scope escapes the control of this magistracy.

To do so would mean re-examining and re-assessing the evidentiary background that was already evaluated, in addition to reviewing the conclusions they reached, which is forbidden, as it distorts the remedy under study, which must be based exclusively on matters of law (SSCS Case No. 33.997-16 of October 13, 2016, Case No. 95069-16 of April 25, 2017, and Case No. 5000-17 of May 29, 2017)."

"Furthermore," it continues, "as read in the 24th motive of the first-instance ruling, to establish the participation of Arias Navarrete, the judges considered that at the time of the events—October 1973—he was attached to the San Rafael Station of the Carabineros de Chile, the place where Justo Segundo Flores Martínez was held illegally; that Juana Flores Martínez indicated that he was one of the police officers from the San Rafael Station of the Carabineros de Chile who, at around 1:00 PM, at her home, illegally detained her brother Justo and who, subsequently, at the aforementioned detachment, when asked about his whereabouts, led her to believe that he had already been released, a circumstance that did not correspond to reality, since Justo Flores Martínez, while deprived of liberty, was executed on a rural road and his body abandoned at the site."

"In this way, the presumptions used by the sentencers to conclude that Arias Navarrete executed the acts attributed to him immediately and directly are based on real and proven facts and not on other presumptions, and furthermore, they are multiple, so it is not possible to affirm the infringement of the only rules regulating evidence contained in the studied article 488.

Article 459 of the Code of Criminal Procedure, for its part, has not been applied by the sentencers, since it provides for the treatment to be given to the statement of two witnesses who meet the characteristics stated therein, which is not the case here, since as just explained, the ruling is based solely on the statement of Juana Flores Martínez and, given its singularity, it is precisely treated as a presumption as permitted by the second paragraph of article 464 of the same code—the infringement of which is not accused in the brief.

Furthermore, contrary to what the appellant maintains, the statement of Rosa Flores Martínez cannot be considered contradictory to that of her sister Juana, because as the former clearly expresses in her statements recorded in the file, unlike the latter, she was not present at the time of his detention and only learned some time later that her brother had died.

Without prejudice to the above, even if the aforementioned depositions were considered contradictory on some point, as already explained, the sentencer is empowered by article 464 to assess their probative force and constitute judicial presumptions with them.

Regarding article 487 of the Code of Criminal Procedure, it deals with legal presumptions, and the ruling does not resort to any of that nature to establish the proven facts of these proceedings," the resolution states.

"Finally, given that the authorship of Arias Navarrete has been established based on the background information compiled during the investigation by the instructing judge, the presumption of innocence has not been violated in the manner accused by the appeal," it adds.

Executed in San Bernardo

During the investigation phase of the case, substantiated by the visiting minister of the San Miguel Court of Appeals, Marianela Cifuentes Alarcón, the following facts were established:

1. That on October 5, 1973, around 1:00 PM, at the property on Padre Hurtado Street No. 12.916 in the Pablo de Rokha neighborhood, Justo Segundo Flores Martínez was illegally detained by police officers from the San Rafael Station of the Carabineros de Chile, including Corporal Miguel Segundo Arias Navarrete, and subsequently taken to the aforementioned detachment. 2.

That on October 15, 1973, in the morning, while Luis Enrique Pérez Balbontín was attending to a newspaper kiosk on Bernardino Parada Street in the commune of La Pintana, he was illegally detained by police officers from the San Rafael Station of the Carabineros de Chile and subsequently taken to the aforementioned detachment. 3.

That Luis Enrique Pérez Balbontín suffered from total muscular atrophy in both legs and used orthopedic shoes and crutches to move around. 4. That on the indicated dates, the San Rafael Station was under the command of Lieutenant Ricardo Arturo Morales Gallardo—who served as the Station Chief. 5.

That, instead of being placed at the disposal of the competent authority, on October 16, 1973, at 7:45 AM, on an interior road of the Santa Adela estate in the commune of San Bernardo, Justo Segundo Flores Martínez and Luis Enrique Pérez Balbontín were executed by firearm shots to the skull and abdominal region, and their bodies were abandoned at the aforementioned location.

These acts were classified as the crime of aggravated kidnapping under article 141, final paragraph, of the Penal Code, attributing responsibility to Arias Navarrete and Morales Gallardo as perpetrators, the former under article 15 No. 1 and the latter under article 15 No. 2 of the Penal Code.

Source: cambio21.cl, November 29, 2020

Minister Marianela Cifuentes convicts Carabineros (r) from the San Rafael Station for aggravated kidnappings.

Ricardo Arturo Morales Gallardo, chief of the San Rafael station at the time of the events, was sentenced to a single penalty of 10 years and one day of imprisonment as the perpetrator of the aggravated kidnappings of Justo Segundo Flores Martínez and Luis Enrique Pérez Balbontín.

The extraordinary visiting minister for human rights violation cases of the San Miguel Court of Appeals, Marianela Cifuentes Alarcón, convicted a former lieutenant and a former corporal of the Carabineros as perpetrators of the crimes of aggravated kidnapping, illicit acts perpetrated in October 1973.

Ricardo Arturo Morales Gallardo, chief of the San Rafael station at the time of the events, was sentenced to a single penalty of 10 years and one day of imprisonment as the perpetrator of the aggravated kidnappings of Justo Segundo Flores Martínez and Luis Enrique Pérez Balbontín; meanwhile, Miguel Segundo Arias Navarrete (corporal of said unit) must serve an effective sentence of 6 years of imprisonment as the perpetrator of the crime of aggravated kidnapping of Flores Martínez.

In the case, the visiting Minister established the following facts: 1st That on October 5, 1973, around 1:00 PM, at the property on Padre Hurtado Street No. 12.916 in the Pablo de Rokha neighborhood, Justo Segundo Flores Martínez was illegally detained by police officers from the San Rafael Station of the Carabineros de Chile, including Corporal Miguel Segundo Arias Navarrete, and subsequently taken to the aforementioned detachment.

2nd That on October 15, 1973, in the morning, while Luis Enrique Pérez Balbontín was attending to a newspaper kiosk on Bernardino Parada Street in the commune of La Pintana, he was illegally detained by police officers from the San Rafael Station of the Carabineros de Chile and subsequently taken to the aforementioned detachment.

3rd That Luis Enrique Pérez Balbontín suffered from total muscular atrophy in both legs and used orthopedic shoes and crutches to move around.

4th That on the indicated dates, the San Rafael Station was under the command of Lieutenant Ricardo Arturo Morales Gallardo—who served as the Station Chief.

5th That, instead of being placed at the disposal of the competent authority, on October 16, 1973, at 7:45 AM, on an interior road of the Santa Adela estate in the commune of San Bernardo, Justo Segundo Flores Martínez and Luis Enrique Pérez Balbontín were executed by firearm shots to the skull and abdominal region, and their bodies were abandoned at the aforementioned location.

Source: poderjudicial.cl, February 8, 2018