The visiting judge for human rights violation cases at the Valparaíso Court of Appeals, Jaime Arancibia, indicted and ordered the pretrial detention of 13 former uniformed officers—two from the Carabineros and eleven retired members of the Navy—for the crime of kidnapping Viviana Victoria Fernández.

In the resolution (case file 144.137-2013), he indicted Gilda Mercedes Ulloa Valle, Alejo Esparza Martínez, Juan de Dios Reyes Basaur, Enrique Orlando Corrales Díaz, Ricardo Alejandro Riesco Cornejo, Valentín Evaristo Riquelme Villalobos, Bertalino Segundo Castillo Soto, Eduardo Mauricio Núñez Contreras, Jaime Erik Riesle Wetherby, Héctor Nelson Tapia Olivares, Juan Orlando Jorquera Terrazas, Ángel Segundo Lorca Fuenzalida, and Marcelo Alejandro Onofre Vargas Goas, as perpetrators of the crime of kidnapping Viviana Victoria Fernández Montenegro.

According to the records, the events took place in the second half of February 1974: "Due to the political ideas she professed, as well as those of her family, Viviana Victoria Fernández Montenegro, who was 14 years old at the time, was detained at her home in Cerro Florida, Valparaíso.

She was taken to the Silva Palma Barracks, adjacent to the Naval War Academy, the same place where her sister, Morelia del Rosario Fernández Montenegro, and her mother, Emma Mercedes Montenegro Mena, were taken; these detentions were carried out by members of the Navy and Carabineros of this city without an order from a competent court."

The resolution continues: "The victim, as well as her aforementioned relatives, were interrogated regarding the political activities they carried out and the existence of alleged weapons or caches of them that were supposedly hidden.

During these interrogations, they were sexually abused, and also received beatings, insults, death threats, and the application of electric shocks to their intimate parts, ankles, and fingers. The victim was subsequently released after approximately one week, but was required to sign in weekly at a Carabineros station in Cerro Alegre for one year, without any judicial process being initiated against her, neither in the military nor the ordinary jurisdiction."

Once notified of the indictment, the accused must be taken to the facilities designated by the Carabineros to serve their pretrial detention.

Source: rvl.uv.cl, July 19, 2016

Case File No. 144.133-2013: Kidnapping and torture case of Morelia del Rosario Fernández Montenegro

Twenty-fifth: That, regarding the participation of the accused Núñez in the illicit acts under investigation, according to his statement during the inquiry, he did not perform interrogator duties but was an operative (COC).

However, this statement is flagrantly contradicted by his service record, since Ricardo Riesco, his direct supervisor and also an accused in this case, between November 1973 and December 1974—that is, within the period the victim was detained—entered the same notations for him as for the other interrogators and co-accused, exactly the same, with the same words, as if it were a "standard" entry, all referring to the role of interrogators that they all fulfilled, with no mention of him performing any operative work as this accused indicates.

In the service record, it is not until October 1975 that there is an entry as an operative made by Carlos González Lira. Furthermore, regarding the suspect functions, another interrogator and accused, Juan Reyes, points out on page 114 that "among the other Marines who interrogated at the Silva Palma barracks were Corporals Carlos Ponce Álvarez, Eugenio Pinto Salas, Tuba (Eduardo) Núñez Contreras, Miguel Concha Rivera, and Bertalino Castillo Soto." That, in the aforementioned manner, it is clear that by attempting to hide his true functions at the place where torture was inflicted, precisely during the time the victim was detained, he unequivocally demonstrates his participation in the corresponding illicit act, given that his exculpation could not be proven and, furthermore, that he was part of the group of Marines specially trained to carry out interrogator duties. There being, therefore, sufficient judicial presumptions of his participation in this illicit act, he bears responsibility for them.

II.- IT IS ORDERED that RICARDO ALEJANDRO RIESCO CORNEJO, JUAN DE DIOS REYES BASAUR, VALENTIN EVARISTO RIQUELME VILLALOBOS, ALEJO ESPARZA MARTINEZ, EDUARDO MAURICIO NUÑEZ CONTRERAS, HECTOR VICENTE SANTIBAÑEZ OBREQUE, JAIME SEGUNDO LAZO PEREZ, and SERGIO HEVIA FEBRES are CONVICTED as perpetrators of the crime of kidnapping with serious injury against Morelia del Rosario Fernández Montenegro, events that occurred in Valparaíso starting in February 1974, remaining in the Silva Palma barracks for approximately two weeks, being subsequently taken to the "Buen Pastor" women's prison, where she remained for another two weeks, until the second week of 1974; to the penalty of SIX YEARS of major imprisonment in its minimum degree, to the accessory penalties of absolute perpetual disqualification for public offices and political rights, and absolute disqualification for professional titles for the duration of the sentence, for each of them; and to the payment of the costs of the case.

Source: Judiciary, July 6, 2020

He was beaten and shocked: Navy members sentenced to six years of effective imprisonment for kidnapping with serious injury of a minor

He was 14 years old and was in Santiago visiting his relatives. "A friend arrived to warn him that two fellow cell members of the Communist Youth to which he belonged had been detained, and told him that his parents' house had been raided, and at the same time, they had left a summons in which they threatened not to release other young people who were his friends, so upon hearing this, he decided to return to Valparaíso."

That was the beginning of the case investigated by the visiting judge of the Valparaíso Court of Appeals, Jaime Arancibia, in which he convicted eight retired members of the Navy as perpetrators of the crime of kidnapping with serious injury of Óscar Ibaceta Jorquera, an adolescent who was 14 years old at the time of the events.

The illicit act was perpetrated at the Silva Palma barracks in February 1974.

In the civil aspect, the visiting judge accepted the filed claim, ordering the state to pay the victim compensation of $85 million for moral damages.

"He presented himself at the Navy's Naval War Academy and was immediately detained. After several hours, they transferred him to the Silva Palma Barracks, and before entering, they covered his face with the jacket he was wearing.

Then came endless days of interrogations, kicks and punches, electric shocks to the testicles and different parts of the body. After 20 days, Ibaceta Jorquera was released, having to attend the Cerro Alegre police station every Sunday to sign in for eleven months.

All of the above caused him serious psychological consequences, which are multiple and profound; it was difficult for him to return to his studies, as at that time he was in his first year of high school."

In the ruling, Judge Arancibia Pinto sentenced Ricardo Alejandro Riesco Cornejo, Juan de Dios Reyes Basaur, Juan Orlando Jorquera Terrazas, Alejo Esparza Martínez, Héctor Vicente Santibáñez Obreque, Jaime Segundo Lazo Pérez, Eduardo Mauricio Núñez Contreras, and Valentín Evaristo Riquelme Villalobos to six years of effective imprisonment, plus legal accessories, as perpetrators of the crime.

In the case, the visiting judge decreed the acquittal of Guillermo Tomás Morera Hierro, as his participation as a perpetrator in the crimes of kidnapping with serious injury and the application of torture to Ibaceta Jorquera was not proven.

Source: enestrado.com, September 4, 2020

Supreme Court convicts six retired Navy personnel for the kidnapping of an adolescent in Valparaíso in 1974

In a unanimous ruling, the Second Chamber of the highest court sentenced Juan Reyes Basaur, Valentín Riquelme Villalobos, Alejo Esparza Martínez, Eduardo Núñez Contreras, Héctor Santibáñez Obreque, and Sergio Hevia Febres to 6 years of effective imprisonment as perpetrators of the crime.

The Supreme Court rejected the appeal for cassation on the merits and confirmed the sentence that convicted six retired members of the Navy for their responsibility in the crime of kidnapping with serious injury of the adolescent, who was 17 years old at the time of the events, Morelia del Rosario Fernández Montenegro.

The illicit act was committed on two occasions, in February and May 1974, in the city of Valparaíso.

In a unanimous ruling (case file 45.519-2022), the Second Chamber of the highest court—composed of ministers Haroldo Brito, Manuel Antonio Valderrama, Jorge Dahm, Leopoldo Llanos, and lawyer (i) Ricardo Abuauad—sentenced Juan de Dios Reyes Basaur, Valentín Evaristo Riquelme Villalobos, Alejo Esparza Martínez, Eduardo Mauricio Núñez Contreras, Héctor Vicente Santibáñez Obreque, and Sergio Hevia Febres to 6 years of effective imprisonment as perpetrators of the crime.

In the case of the convicted Esparza Martínez, due to evidence of possible mental alienation, the court of first instance was ordered to adopt the necessary measures to arrange for the execution of the imposed sentence.

In the judgment, the Second Chamber ruled out any error of law in the resolution that rejected the application of "half-prescription" (a reduced statute of limitations) as a highly qualified mitigating factor, as argued by the defense.

"That, without prejudice to what was indicated by the ruling, the constant jurisprudence of this Criminal Chamber has used two arguments to dismiss this ground for appeal, insofar as it is based on Article 103 of the Penal Code," the ruling states.

The resolution adds: "On one hand, the classification of the illicit act committed as a crime against humanity obliges the consideration of International Human Rights Law regulations, which exclude the application of both total prescription and the so-called half-prescription, understanding such institutions to be closely linked in their foundations and, consequently, contrary to the ius cogens regulations originating from that sphere of International Criminal Law, which reject impunity and the imposition of penalties not proportional to the intrinsic gravity of the crimes, based on the passage of time (among others, SCS Nos. 17.887-2015, of January 21, 2015; 24.290-2016 of August 8, 2016; 44.074-2016 of October 24, 2016; 9.345-2017, of March 21, 2018; 8.154-2016 of March 26, 2018; and 825-2018 of June 25, 2018)."

"But along with this, it is emphasized that whatever interpretation may be made of the foundation of the legal provision in question, it is certain that the norms to which Article 103 refers grant a mere faculty to the judge and do not impose the obligation to reduce the amount of the penalty even if several mitigating factors concur. (Supreme Court Judgments Case File No. 35.788-17, of March 20, 2018, and Case File No. 39.732-17, of May 14, 2018), so that the non-exercise of that attribution cannot constitute an infringement of the law, bearing in mind that, in any case, the estimation of gradual prescription regarding those responsible for the commission of crimes against humanity affects the principle of proportionality of the penalty, since the gravity of the acts perpetrated with the intervention of State agents determines that the response to the author of the transgression must be coherent with the impairment of the legal interest and the culpability with which they acted, so that, under such conditions, the appeal of those aforementioned will be dismissed," it concludes.

Therefore, it is resolved

"1st.- That no pronouncement is made regarding the appeal for cassation on the merits filed in favor of Ricardo Alejandro Riesco Cornejo.

2nd.- That the appeal for cassation on the merits formalized by the defense of Juan de Dios Reyes Basaur, Valentín Riquelme Villalobos, Alejo Esparza Martínez, Eduardo Núñez Contreras, Héctor Santibáñez Obreque, and Sergio Hevia Febres against the sentence written on page 970 and following, issued by the Valparaíso Court of Appeals on May 26, 2022, is rejected.

That without prejudice to what has been decided and attentive to the psychiatric report issued by the Legal Medical Service regarding the sentenced Alejo Esparza Martínez, which was submitted on January 26, 2022, the Instructor Minister must adopt the appropriate measures in relation to the execution of the sentence that was imposed on him."

Silva Palma Barracks

In the first-instance judgment, Minister Jaime Arancibia Pinto established the following facts:

"That Morelia del Rosario Fernández Montenegro was detained one night in February 1974 by members of the Chilean Navy at her home located in Cerro Florida in the commune of Valparaíso. The victim, who at the time of her detention was 17 years old, was put into the vehicle in which the naval personnel were moving and was taken first to the house of her cousin Patricio Fernández Avilés, who was also taken from his house under detention and put into the same truck as the victim in this case, both being transferred to the Silva Palma Barracks, located in the same city.

In said facility, she remained detained for about 2 weeks, without food or hygiene measures, subjected to interrogations, physical mistreatment such as beatings and the application of electric current, psychological mistreatment such as sleep deprivation and threats to both her physical integrity and that of her family, and verbal abuse.

She was then transferred to the 'Buen Pastor' women's prison, where she remained incarcerated for approximately 2 more weeks, being released during the second week of March 1974.

During the month of May 1974, she was detained again on two occasions by members of the Chilean Navy, who took her back to the Silva Palma barracks, where she was subjected to interrogations. On those occasions, the detentions lasted approximately two days each."

Source: pdju.cl, January 27, 2023