The minister on extraordinary assignment for human rights violation cases of the Santiago Court of Appeals, Mario Carroza, issued a first-instance sentence for the qualified homicide of Miguel Emilio Estol Mery, a crime perpetrated on October 23, 1973, in the Metropolitan Region.

In the resolution, the presiding judge sentenced retired Army Brigadier Alfonso Gabriel Videla Valdebenito to an effective prison term of 7 years as the perpetrator of the crime. Likewise, he sentenced retired Army non-commissioned officer Víctor Manuel Muñoz Muñoz to a prison term of 5 years, with the benefit of intensive supervised release.

During the investigation stage, initiated in 2010 at the request of the acting prosecutor of the Supreme Court, Beatriz Pedrals, Minister Carroza was able to establish the following facts: "A first fact that must be established and which is of the greatest relevance at the time of judgment is that these events were triggered by an altercation on a public street; they occurred on August 23, 1973, and the participants were José Miguel Estol Larraín, the victim's son, and brothers Víctor Hugo and René Marcelo Arroyo Quijada, the latter a student at the Military Polytechnic Academy, which finally ended with an accidental gunshot that caused a wound to René Arroyo's hand, forcing him to go to the Military Hospital and report what had happened to the Military Polytechnic Academy, with the superiors ordering an internal administrative summary led by Captain Alfonso Videla Valdebenito. These circumstances constitute the context in which the events that caused the victim's death were subsequently framed. Having provided this explanation, we can maintain that the gathered evidence, outlined in the aforementioned foundation, allows us to establish the following: a) That on October 23, 1973, Captain Alfonso Videla Valdebenito, during the night hours, decided to gather a military contingent with personnel from the Military Polytechnic Academy for the purpose of raiding the property located in the commune of Las Condes and arresting José Miguel Estol Larraín, the alleged perpetrator of the events that caused the hand injury to one of the Arroyo Quijada brothers in August of that year, without any judicial or legal order to justify it; b) That once the military patrol was organized, they left the Polytechnic Academy in the direction of the property located at Calle Manquehue Sur No. 600 in the commune of Las Condes, where they arrived around 23:00 hours; they then distributed themselves throughout the sector, with two soldiers posted as security and others guarding the vehicles, while the rest entered the front garden of the house, an event that Miguel Emilio Estol Mery, José Miguel's father, noticed, and he went out to see what was happening, but once he opened the door and attempted to advance toward them, one of the soldiers in the patrol shot him with his Mauser rifle, striking his body twice, causing the wounded victim to fall to the ground; c) That, immediately thereafter, the captain and head of the patrol, Alfonso Videla Valdebenito, ordered them to enter the house and interrogate the wounded man's wife, realizing at that moment the error in identity, and therefore deciding, while Estol Mery was still alive, to take him to a medical facility; d) That the victim was admitted that night to the Hospital El Salvador, and although it has not been possible to determine with certainty the means by which he arrived, he died as a result of the thoraco-abdominal and thoraco-pulmonary gunshot wounds with projectile exit that caused his death."

Source: rodolfovarela.blogspot.com, January 7, 2016

And so it continues: Constitutional Court now suspends human rights cases

Not content with intervening to divert the democratic will in our country—authorizing profit in education, affecting matters such as consumer rights or the three-grounds abortion law—a new vein appears linked to abuses: protecting the impunity of criminals against humanity.

The Piñera government is preparing for 3 new appointments of ministers to that court. The "netting" is in full execution; it will leave a seven-to-three difference in favor of the right in the Constitutional Court (TC).

Its president, Iván Aróstica, in an unprecedented political speech, defended interventionism. Not only has the Chile Vamos parliamentary minority used and abused the Constitutional Court as a "third chamber" that stands above Parliament and even the Executive itself, but now human rights violators have taken the habit of resorting to that body to request that the legal precepts under which they are convicted be declared unconstitutional.

The current right-wing majority of 6 to 4 in the TC, beyond all prudence, has chosen to suspend—in some cases for years—the fulfillment of sentences and proceedings, thereby protecting impunity. One of the cases that has been affected by this trickery is the so-called "Operation Condor," that intelligence plan designed and coordinated by the security services of the military dictatorships of Brazil, Argentina, Chile, Bolivia, Paraguay, and Uruguay, in collaboration with the CIA, which was headed by the then-director of the DINA in our country, Manuel Contreras, and whose purpose was to cooperate in the annihilation of dissidents from those countries. Dilatory tricks It is the duty of the president of the court to determine the so-called "docket," which corresponds to the cases that will be addressed by the highest constitutional body. Iván Aróstica, its current head, has omitted putting the aforementioned human rights issues up for discussion and resolution. Article 8, letter C of the Constitutional Organic Law (LOC) of the TC expressly places among the functions of the president of the body: "To form the dockets that correspond to the plenary and the chambers in accordance with the provisions of article 29." Not only that, but the provisions of article 46, letter C, second paragraph of the Constitutional Organic Law of the Constitutional Court have also been violated, which provides that "The deadline for issuing a sentence shall be thirty days, counted from the declaration of admissibility, a term that may be extended for up to another fifteen days, by a reasoned resolution of the Court." In other words, a rule that peremptorily sets a fatal deadline, of the so-called "numerus clausus" type, has been violated. Aróstica was not only appointed by Piñera in 2013, but during the first administration of the current president, he was also head of the Legal Division of the Ministry of the Interior and provided services to the Ministry of Public Works and the National Defense Pension Fund. He is a declared devotee of the lethal weapon used to kill Chileans during the dictatorship, the corvo (curved knife), an admirer of Jaime Guzmán, and various publications attribute statements to him from his university students that account for the denialism he has maintained regarding the forcibly disappeared, about whom he claims they live in Europe. Biological impunity For years, the human rights world has questioned the delay in judicial cases related to crimes against humanity, as the inexorable passage of time leads to the death of criminals without them confessing their misdeeds or the final destination of the victims, and they are exempted from serving sentences. Furthermore, it implies that family members and survivors are also dying without finding justice or reparation. The former Court of Appeals minister and human rights judge, Alejandro Solís, has told Cambio21 that "There is a lack of will to speed up these types of cases. Whether it is generic or individual, I do not know. If time passes, what does this translate into? The victims are dying, the witnesses are dying, and the accused, for health reasons, cannot go to prison. So, biological impunity is produced," he noted. In the same vein, Erika Hennings, widow of the forcibly disappeared Alfonso Chanfreau, told our media that, "considering biological impunity and that they (the criminals) are dying, urgency is required, but an efficient urgency." This does not happen in the Constitutional Court. To date, there are already 32 human rights cases in which lawyers for criminals against humanity have resorted to the TC to delay the fulfillment of sentences, reaching the scandal of even suspending a sentence from the Supreme Court, the country's highest court, which ends up placing the Constitutional Court as the highest non-democratic body that governs the destinies of Chile, without answering to anyone and without anyone being above this omnipotent body chosen by political quotas, but which lost its balance last year, remaining 6 to 4 in favor of the right, and where today it will be 7 to 3, thanks to the "netting" of the new government. Exasperating cases Aróstica has managed to delay—in the best style of Jacqueline van Rysselberghe in the Senate Human Rights Commission—several cases apart from the aforementioned Operation Condor. There are already more than 20 cases suspended in their processing—generally the fulfillment of sentences—out of the more than 30 that the TC is aware of. In practice, this directly implies impunity because the criminals who have been sentenced do not enter to serve their sentences until the TC rules, and, in fact, it does not do so. One of the most shameful cases, both for the time it has been without movement and for having suspended the fulfillment of a sentence issued by the Supreme Court, which implies a true coup d'état against legality, is that of Miguel Estol Mery, murdered in October 1973 on Calle Manquehue Sur in the Metropolitan Region. The sentence of what until now was believed to be the highest court, dated May 6, 2016, sentenced two retired military personnel for the crime: Alfonso Gabriel Videla Valdebenito, whose sentence it raised to 10 years, and retired Army non-commissioned officer Víctor Muñoz Muñoz, whom it sentenced to 5 years. Having exhausted all appeals in the judiciary, Videla Valdebenito chose in July 2016 to resort to the Constitutional Court, achieving the suspension of the sentence, which was granted on August 3 of the same year, so it has been almost two years with the case suspended and without a sentence having been issued or the suspension of the procedure having been terminated. The convicted man seeks to have at least the "half-prescription" (statute of limitations reduction) applied in his favor, which the Supreme Court rejected because it is a crime against humanity. Father is not heard The lawyer for the Association of Relatives of Political Executions (AFEP), Francisco Jara, requested on March 29 that the Court issue a sentence, so far without success. Previously, since December 2017, he has repeatedly requested the lifting of the questioned suspension, without success, in case Rol No. 3150-16-INA. In this last presentation, Jara complains that since March 16, 2017, the occasion on which the case was seen by the court, "with the agreement on it being adopted that same day, having passed more than a year since then," there is no sentence, despite the legal deadline. He also complains "That due to the rejection of the requests to lift the suspension of the procedure promoted by the parties at fs. 320 and 321, resolution dated January 17, 2018, the concurring vote indicated that it corresponds to give progressive course to the files and issue a sentence," without it happening to this day. Not only that, he questions that the request to give progressive course to the process, "raised by the Human Rights Program Unit on January 22, 2018, has not even been provided for in more than two months," and adds that "dealing with the suspension of a trial for crimes against humanity, followed before the Honorable Supreme Court of Justice, the importance of safeguarding the right to judgment within a reasonable time must be considered (...) the suspension of the procedure has served the victimizers, as has been denounced by different organizations and human rights reports" to evade the fulfillment of the sentence and also that the "Court has a period of 30 days to issue a sentence, extendable for 15 more days; a term greatly exceeded by more than 300 days." "Netting" in full force A few days ago, in an evident unforced error that exposed what the right now in government really thinks, the Minister of Justice, Hernán Larraín, spoke before a UDI audience about doing "netting" in the appointment of judges, under the excuse that the majority of them were from the left. What he said specifically was that the time had come—for them—to appoint right-wing judges—beyond their technical capabilities and conditions—so that they would be compensated. In the matter of the Constitutional Court, such supremacy of left-wing judges—following Larraín's logic of political quotas—is inversely proportional, since since 2017 the right has held six of the 10 ministers and now, in the midst of Piñera's government, it is its turn to appoint one more, a position already vacant with the departure of Carlos Carmona due to the expiration of the legal term. Thus, there will now be seven of the 10 ministers who will operate from the right, of this supra-power that feels above all other powers of the Republic—and has operated as such in practice. As will be recalled, regarding the resolutions issued by this body, there is no appeal before any other superior authority. In the eye of the hurricane, the Constitutional Court, it will no longer be so easy for Piñera to obtain multiple drivers for his new backhoe in the TC, so he will be forced to negotiate. The politicization of the TC Just a few days ago, the President of the Constitutional Court gave a public account of the 2017 activities of the body he presides over, in front of an important part of national authorities. Said account, because it is a court, which should have been technical with the delivery of statistics, trends, and other requests of usual occurrence in these cases, was transformed into a political account, which broke all the historical molds of this body and showed the "new times" that its Iván Aróstica will seek to establish. The criticism did not only come from the opposition, but even Sebastián Piñera's own lawyer, Juan Domingo Acosta, complained about the authority's loss of direction, since the role of the TC president is to ensure the constitutionality of laws, in their formation and application: "He (Iván Aróstica) does not have a political function or one of safeguarding rights that are beyond the Constitution. What exceeds that is something that does not correspond to him, given that its members are not people chosen by the community, so as to give political opinions, but a purely jurisdictional court," said the jurist. For the lawyer and university professor Javier Couso, it is abnormal "that the TC pronounces itself not only by way of sentences, but through public statements (...) That is anomalous in constitutional courts and supreme courts of advanced democracies," he said, reaffirming that in consolidated rule-of-law states, courts "speak through their rulings." For his part, Senator Álvaro Elizalde told Cambio21 that "Aróstica must understand that he presides over a court of law, not a right-wing court," denouncing that the president of the Constitutional Court acts more like a political operator than a judge of the Republic, denouncing that Aróstica's statements "evidence the political control role of the Constitutional Court against the majority will of the citizens, expressed in the National Congress." The also president of the Socialist Party referred to what was pointed out by the magistrate, after he expressed in his public account that "legislative majorities do not last forever." Elizalde emphasized that "his words are expressions more typical of a political operator than of a judge of the Republic (...) the Constitutional Court has been transformed into a kind of third chamber that modifies what was approved by the National Congress, neutralizing popular sovereignty." The senator explained that the Constitutional Court "today performs the same function that appointed senators performed in the past." by Mario López M.

Source: cambio21.cl, April 23, 2018

Supreme Court convicts retired military personnel for homicide during a home raid in Las Condes in 1973

The highest Court convicted, in a replacement sentence, Alfonso Videla Valdebenito to a prison term of 7 years and Víctor Manuel Muñoz Muñoz to 5 years in prison, with the benefit of conditional release, as perpetrators of the crime.

In a split decision, the Supreme Court convicted two retired military personnel for the qualified homicide of Miguel Estol Mery, a crime committed on October 23, 1973, in the commune of Las Condes, within the framework of an operation carried out by personnel from the Military Polytechnic Academy in retaliation for an incident with personnel from said military unit that occurred two months earlier.

The highest Court convicted, in a replacement sentence, Alfonso Videla Valdebenito to a prison term of 7 years and Víctor Manuel Muñoz Muñoz to 5 years in prison, with the benefit of conditional release, as perpetrators of the crime.

The sentence accepted the cassation appeal filed against the Santiago Court of Appeals sentence that refused to apply the qualified mitigating circumstance of "half-prescription" (statute of limitations reduction) in this case.

It maintains that regarding the application of Article 103 of the Penal Code, it is necessary to point out that gradual prescription constitutes a qualified mitigating circumstance of criminal responsibility, whose effects affect the determination of the quantum of the corporal sanction, independent of the prescription, with different foundations and consequences.

Thus, the former rests on the assumption of the forgetting of the crime, on procedural reasons, and on the need not to repress the conduct, which leads to leaving the criminal act unpunished; on the other hand, the mitigating factor—which is also explained thanks to humanitarian regulations—finds its reason for being in criminal policy motives related to events that occurred a long time ago, but which should not for that reason cease to be irremediably sanctioned, albeit with a lesser penalty.

The resolution adds that in this way, in cases like the present one, although the passage of time since the commission of the crime has been prolonged excessively, it does not cause the complete disappearance of the need for punishment, and nothing seems to oppose in the legal sphere that the courts resort to this mitigation of the penalty based on the time elapsed since the perpetration of the crime.

Finally, it concludes that, in short, gradual prescription forms a highly qualified mitigating factor whose effects affect only the rigor of the punishment and, due to its nature as a rule of public order, its application is mandatory for judges, by virtue of the principle of legality that governs punitive law, within the framework of the powers granted by Article 65 and following of the Penal Code.

Nor is there any constitutional, legal, or International Conventional Law restriction for its application, since those rules are only limited to the extinguishing effect of criminal responsibility that the prescription of the criminal action entails.

Therefore, concurring with the assumptions of Article 103 of the Punitive Code, no reason is seen that hinders considering the mitigating factor in question. Decision adopted with the dissenting vote of Minister Valderrama, who was of the opinion to confirm the appealed sentence, with the declaration of increasing the sanction to ten years and one day of major imprisonment in its minimum degree and legal accessories, as the perpetrator of the crime of qualified homicide of Miguel Estol Mery.

During the investigation stage of the case, the visiting minister Mario Carroza managed to establish the following sequence of events: "That the first fact that must be established and which is of the greatest relevance at the time of judgment is that these events were triggered by an altercation on a public street; they occurred on August 23, 1973, and the participants were José Miguel Estol Larraín, son of the victim, and brothers Víctor and René Arroyo Quijada, the latter from the Military Polytechnic Academy, which finally ended with an accidental gunshot that caused a wound to René Arroyo's hand, which forced him to go to the military hospital and report what had happened to the Military Polytechnic Academy, with the superiors ordering an internal administrative summary led by Captain Alfonso Videla Valdebenito. These circumstances constitute the context in which the events that caused the victim's death were subsequently framed. That on October 23, 1973, Captain Alfonso Videla, during the night hours, decided to gather a military contingent with personnel from the Military Polytechnic Academy, with the purpose of raiding a property located in the commune of Las Condes and arresting José Miguel Estol Larraín, the alleged perpetrator of the events that caused the hand injury to one of the Arroyo Quijada brothers in the month of August of that year, without any judicial or legal order to justify it. Once the military patrol was organized, they left the Military Polytechnic Academy in the direction of the property located at Calle Manquehue Sur No. 600 in the commune of Las Condes, where they arrived around 23:00 hours; they then distributed themselves throughout the sector, with two soldiers posted as security and others guarding the vehicles, while the rest entered the front garden of the house, an event that Miguel Estol Mery, father of José Miguel, noticed, and he went out to see what was happening, but once he opened the door and attempted to advance toward them, one of the soldiers in the patrol shot him with his Mauser rifle, striking his body twice, causing the wounded victim to fall to the ground. Immediately thereafter, the captain and head of the patrol, Videla Valdebenito, ordered them to enter the house and interrogate the wounded man's wife, realizing at that moment the error in identity, and therefore deciding, while Estol Mery was still alive, to take him to a medical facility."

Source: pdju.cl, March 26, 2019