The highest court rejected the appeal in cassation filed against the sentence that convicted retired Carabineros non-commissioned officer Arturo Óscar Contreras Tamayo to a penalty of 3 years and one day of imprisonment, with the benefit of intensive supervised release, as an accomplice to the crime of aggravated kidnapping of union leader Vitalio Orlando Mutarello Soza.

The Supreme Court rejected the appeal in cassation filed against the sentence that convicted retired Carabineros non-commissioned officer Arturo Óscar Contreras Tamayo to a penalty of 3 years and one day of imprisonment, with the benefit of intensive supervised release, as an accomplice to the crime of aggravated kidnapping of union leader Vitalio Orlando Mutarello Soza.

This illicit act was committed starting in September 1973, at the Pedro de Valdivia nitrate plant, in the commune of María Elena, province of Tocopilla, in the current Antofagasta Region. In a unanimous ruling (case file 23.156-2019), the Second Chamber of the highest court—composed of ministers Haroldo Brito, Jorge Dahm, Leopoldo Llanos, María Teresa Letelier, and acting lawyer Ricardo Abuauad—ruled out any error of law in the challenged sentence, issued by the Santiago Court of Appeals, which confirmed the resolution convicting Contreras Tamayo as an accomplice to the crime, by ruling out that he had direct participation in the events. “Regarding the first ground for cassation on the merits asserted by the appellant, and as this Court has already held in the judgment issued in case file No. 34.392-2016, of March 21, 2019, it is necessary to point out that, having established no violation of the rules governing evidence, the facts established by the lower court judges remain unalterable – in the case at hand, those relating to the degree of participation attributed to the defendant Contreras Tamayo – from which it is inferred that the complainant's allegations must be analyzed in light of such factual hypotheses, since it is not feasible for this Supreme Court, on the occasion of the study of the proposed ground for annulment, to attempt a new assessment of such evidence and establish facts different from those determined by the lower court,” the ruling maintains. “In this sense, and having determined as a fact of the case that the accused Contreras Tamayo did not have direct participation in the events, but rather cooperated in their execution through prior or simultaneous acts, the conclusion reached in the judgment under review – regarding his degree of participation – is correct, thereby ruling out the existence of the error of law denounced by the complainant in his first section of the appeal in cassation,” it adds. In the appealed sentence, the Santiago Court of Appeals held as proven the following facts, established in the first instance by the visiting judge Mario Carroza: “ 1°.- That in September 1973, after the military coup, in the Province of Tocopilla, the Carabineros Prefecture decided to establish a Military Prosecutor's Office in the area under the command of the Carabineros Sub-prefect and to grant it the support of Carabineros Intelligence officers to carry out its work, with these becoming the repression apparatus for militants or sympathizers of the left. In the fulfillment of their duties, they began operations aimed at carrying out raids and detaining people to lock them in the police unit's cells and interrogate them under torture, who were later mostly transferred to the city of Antofagasta or subjected to War Councils, where some were sentenced to death and others executed without prior trial; 2°.- That this modus operandi was recurrent throughout the Province of Tocopilla and those units that were under the control of the Prefecture and the jurisdiction of the Military Prosecutor's Office, one of them being the María Elena Police Station, which in turn had under its command the Sub-station of the Pedro de Valdivia Camp, the latter under the command of Captain Gerardo Maluje Abraham and, as second-in-command, Lieutenant Osvaldo Aniceto Muñoz Sanhueza, in addition to other non-commissioned officers who were in charge of the Carabineros of the Sub-station, such as Sergeant 1st Class Arturo Contreras Tamayo, who replicated in their jurisdiction the same repressive techniques of the Prefecture, since they raided, detained, imprisoned, and interrogated under torture people politically linked to the previous Government and who, in this case, corresponded to several people who provided services to the Pedro de Valdivia Nitrate Plant of the Soquimich company; 3°.- That, added to the above, the Head of the unit had an active participation in this political repression, since he was in charge of making calls through the media for the company's union leaders to surrender voluntarily and provide statements before them. Faced with this request and in the belief that those State agents who directed the police unit of the time were upright and reliable in their investiture as authorities of the area, since they had the duty to ensure the safety of the entire population, Vitalio Orlando Mutarello Soza decided to present himself voluntarily on September 12 or 15, 1973, while serving as President of the Workers' Union of the Nitrate Plant; 4°.- That regarding this voluntary surrender of Vitalio Mutarello to the police authorities of the Carabineros Sub-station, as well as his reception and detention in the guardroom of the police unit, there were numerous witnesses and he was recognized by the authorities themselves, but contrary to the assumptions that led him to present himself, those who had the duty of his custody and to guarantee his fundamental rights did not do so, because from that day on, there is no further news of his whereabouts and his death could not be established either ”. In the civil aspect, the sentence was confirmed that ordered the state treasury to pay a total compensation of $130,000,000 (one hundred and thirty million pesos) for moral damages to the victim's relatives.

Source: pjud.cl, October 15, 2021