Case File No. 7.039-A: Case of José Esaú Velásquez Velásquez and Rubén Alejandro Velásquez Vargas

Santiago, August 12, 2009. Having seen: In these proceedings No. 7.039-A, conducted before the Chaitén Criminal Court, by resolution of August 14, 2007, appearing on pages 2,193 to 2,316, corresponding to Volume V of these records, the following individuals were sentenced: Juan Hernán Garrido Gutiérrez, Noé Segura Santander, and Enrique Belmar Corral , to suffer a single temporary penalty of fifteen years and one day of presidio mayor in its medium degree, the pertinent legal accessories, and to pay the costs of the trial, for their responsibility as co-perpetrators of the crimes of qualified homicide against José Esaú Velásquez Velásquez, and the qualified kidnapping of Rubén Alejandro Velásquez Vargas , provided for and sanctioned under articles 391, No. 1, first circumstance, and 141 of the Penal Code, perpetrated on October 5, 1973, in the Lago Yunque sector of Palena province. Furthermore, Jorge Palma was imposed a penalty of ten years and one day of presidio mayor in its medium degree, the respective legal accessories, and to satisfy the costs of the lawsuit, for his responsibility as a perpetrator of the qualified homicide of José Esaú Velásquez Velásquez , mentioned above, and he was acquitted of the charge formulated in the indictment on page 1,481 regarding being considered a perpetrator of the crime of qualified kidnapping of José Esaú Velásquez Velásquez (sic); without granting the convicts any of the benefits contemplated by Law No. 18.216. In its civil section, the same decision upheld the claim filed by the plaintiffs Ana Soto Álvarez and Daniel José Velásquez Soto against Juan Hernán Garrido Gutiérrez, Noé Segura Santander, Enrique Belmar Corral, and Jorge Palma , who were ordered to pay compensation for moral damages of $60,000,000 (sixty million pesos). Regarding the other defendant—the Treasury of Chile—the exception of lack of jurisdiction of the court, raised by the fiscal defense in the main brief on pages 1,984 and 1,515, was upheld. The verdict was appealed by the defendants Garrido Gutiérrez, Belmar Correa, Palma, and Segura Santander at the time of their notifications, as evidenced on pages 2,322 verso, 2,325 verso, 2,327, and 2,335, respectively. Once the report from the Public Prosecutor's Office was submitted on pages 2,340 and 2,341, the Puerto Montt Court of Appeals, by ruling of June 27, 2008, appearing on pages 2,476 to 2,479 verso, reproduced the initial ruling with the exception of seven of its reflections, subsequently introducing a series of modifications and taking into account twelve others. It ultimately revoked the ruling insofar as it punished Jorge Palma for the charge of being a perpetrator of the qualified homicide of José Esaú Velásquez Velásquez, and instead declared his acquittal of that charge. The acquittal of the aforementioned Palma was also revoked regarding the charge of being a perpetrator of the crime of qualified kidnapping of Rubén Alejandro Velásquez Vargas (sic), and, in its place, he was sentenced as a perpetrator of that crime to three years and one day of presidio menor in its maximum degree, the corresponding legal accessories, and the payment of litigation costs, with the alternative benefit of supervised release, which shall extend for the same period assigned to his custodial sentence. Furthermore, the appealed judgment was confirmed in all other respects, with the declaration that Juan Hernán Garrido Gutiérrez, Noé Segura Santander, and Enrique Belmar Corral are definitively sentenced to suffer two penalties of three years and one day of presidio menor in its maximum degree each, the pertinent legal accessories, and to pay the costs of the case, for their responsibility as co-perpetrators of the crimes of qualified kidnapping of Rubén Alejandro Velásquez Vargas and simple homicide of José Esaú Velásquez Velásquez, without granting them any of the benefits of Law No. 18.216. Against this pronouncement, the defense for the four defendants filed an appeal for cassation on the merits, in the main brief on pages 2,481 to 2,498, based on subsections 2, 3, and 7 of article 546 of the Code of Criminal Procedure. 2 On page 2,501, the case files were brought forward for consideration. Considering: First: That the present appeal is based on the second, third, and seventh numerals of article 546 of the Code of Criminal Procedure, arguing that the sentence, by making an erroneous classification of the crime of kidnapping under article 141 of the Penal Code, applied the penalty in accordance with that erroneous classification, which also violates the pro reo principle enshrined in article 19, number 3, paragraph 7, of the Political Constitution of the Republic. Furthermore, for having classified as a crime an act that criminal law does not consider as such, as it would be a legal fiction; and finally, for having violated the laws governing evidence, provided that this contravention substantially influences the operative part of the ruling, by convicting their client (without specifying which one), disregarding the merits of the process. Second: That the seventh ordinal of article 546 of the Criminal Procedure Code is developed regarding the violation of the guidelines governing evidence. It is argued here that the inquisitorial criminal procedure requires courts to play an active role in accessing the material truth of the facts, and that articles 6, 91, 107, 109, and others of the aforementioned code so provide. Regarding article 109, the duties of the court in this matter are synthesized, imposing the duty to investigate with zeal; article 6 establishes that: "Whatever the court called upon to hear a criminal trial, the learned judges with criminal jurisdiction are obliged to carry out the first investigative steps of the summary proceedings"; article 91 prescribes that: "upon receipt of the complaint and without further procedure, the judge shall immediately proceed to verify the reported fact"; article 107 stipulates that: "before continuing the criminal action, whatever the form in which the trial was initiated, the judge shall examine whether the background or data provided allow for the establishment that the criminal liability of the accused is extinguished. In this case, he shall pronounce a reasoned order beforehand to refuse to proceed with the trial"; and in turn, article 109 orders that "the judge must investigate, with equal zeal," not only the facts and circumstances that establish and aggravate the liability of the accused, but also those that exempt them from it or extinguish or mitigate it. Third: That the appellant highlights that all the norms cited in the previous reasoning were ignored, as military courts became aware of the facts in 1973 but did not sanction any of the accused. Subsequently, the Criminal Courts of Chaitén and Coyhaique carried out the first investigative steps when more than ten years had passed since the events occurred and the criminal action and the penalty were already time-barred, and that political pressure has prevented the investigation and evaluation in the ruling of the circumstances that extinguish the criminal liability of the perpetrators, since it was not investigated in a timely manner and only after thirty-five years had passed were the edicts issued, motivated more by political pressure than by the duty to do justice. It is added that article 160 of the Code of Civil Procedure stipulates that: "...sentences shall be pronounced in accordance with the merits of the process," which obliges the judge to weigh all the evidence presented in the case, without excluding or omitting any of them, so that by convicting their "client," the legal obligation imposed by the aforementioned provision has not been met. Fourth: That, in the same line of thought, Title II of Book Two of the Code of Criminal Procedure establishes a system of legal evidence for ordinary criminal procedure; thus, all evidence presented in the case must be invoked and weighed in the verdict in accordance with said precept. However, when analyzed in a joint and systematic manner, it is necessary to conclude with the acquittal of their clients, since the illicit act of kidnapping with which they are charged does not exist, with the "accused" being convicted as... [text continues]

Twenty-sixth: That, upon answering the accusation, the defense for the accused Garrido Gutiérrez, Segura Santander, Belmar Corral, and Palma, through their filing on page 2,010 and following, requested—among other aspects—as a substantive defense, the recognition of the cause for the extinction of criminal liability, consisting of the statute of limitations of the action of the same nature exercised in the case, without expressly raising the applicability of the mitigating circumstance of liability, referring to the gradual application of the former, contained in article 103 of the Penal Code.

Twenty-seventh: That, in turn, the first-instance sentence dedicated reasoning forty-three through forty-seven, both inclusive, to refer to the main request expressed above, without issuing any pronouncement regarding the latter.

Twenty-eighth: That, furthermore, the resolution issued by the Appellate Court adopted the first-instance ruling in the aspects being pointed out, adding the grounds contained in its fourth and fifth motives for greater abundance; from all of which it is possible to appreciate that the omission of any reasoning regarding the factual and legal grounds that made it appropriate or not to accept the mitigating circumstance referred to as the "half-prescription" provided for in article 103 of the Penal Code was maintained, which, notwithstanding not having been expressly requested by the defense of the accused, the court was obliged to address ex officio, provided it is present in the trial, according to the express mandate contained in article 102 of the Penal Code, so it constituted an obligation for the judge to issue a pronouncement in this regard. Twenty-ninth: That, from what has been stated, it emerges clearly, then, that the appellate judges proceeded—when reproducing the first-instance ruling—to set a penalty without taking into account all the necessary elements for it, and thus incurred an error of law, since they did not weigh the facts constituting the mitigating factor in question, which they had the duty to value ex officio, without it being possible to maintain that this was corrected by dismissing the ground for extinction of criminal liability consisting of the statute of limitations of the action raised by the defense, since that refers to a different allegation made. Thirtieth: That, consequently, the appellate ruling is incurred in the cause contemplated in the ninth subsection of article 541 of the Code of Criminal Procedure, in relation to article 500, Nos. 4 and 5, of the same compilation, as it has not been extended in the form provided by the law applicable in the case, by express provision of the final paragraph of article 541 already cited, a deficiency which, on the other hand, cannot be remedied except with the annulment of the verdict containing it, so this Court will proceed to invalidate it ex officio, issuing in its place the corresponding replacement sentence, in the terms provided in the second to fourth paragraphs of article 544 of the aforementioned criminal procedural compilation. Thirty-first: That, given the existence of the denounced defect, and what is described in the previous motive, and what is indicated by articles 535 of the Code of Criminal Procedure and 808 of the Code of Civil Procedure, the appeal for cassation on the merits filed by the defense of the four accused in the case, appearing between pages 2,481 and 2,498, is considered not filed. For these considerations and also in accordance with the provisions of articles 500, Nos. 4 and 5, 535, 541, No. 9, and 544 of the Code of Criminal Procedure and 775 and 808 of its homonymous Civil Adjective Code, the second-instance sentence dated in Puerto Montt on June 27, 2008, written on pages 2,476 to 2,480, IS ANNULLED EX OFFICIO, and is replaced by the one issued below, without a new hearing, but separately.

Agreed with the dissenting vote of Minister Mr. Rodríguez, who was of the opinion not to invalidate the appealed sentence ex officio and therefore to rule on the merits of the formalized appeal, given that, even though the appealed ruling did not estimate or weigh the circumstance of the half-prescription or gradual prescription, which it had the obligation to consider ex officio, this irregularity lacks significance and has no influence on the operative part of the resolution, since, in any case, the mitigating factor in question is inappropriate in this instance, in the opinion of the dissenter, because one of the crimes perpetrated was that of qualified kidnapping, regarding which both doctrine and jurisprudence have indicated that it is of a permanent nature, that is to say, it created a criminal state that has not ceased until now, despite the inquiries aimed at knowing the current whereabouts of the victim or their remains in case of death, so that this illicit state has been prolonged in time by the subsistence of the injury to the protected legal interest, therefore the statute of limitations period for the criminal action regarding said injustice has not begun, which is why the application of this institution is not viable, neither as a cause for the extinction of criminal liability nor as a mitigating factor thereof. Regarding the latter, the impediment derives from article 103 of the Penal Code itself, since the passage of half the period must have as a starting point the moment of the commission of the punishable act, a circumstance that is not possible to specify in the present situation, as has been established. Register. Drafted by Minister Mr. Rodríguez. File No. 4155-08. Pronounced by the Second Chamber composed of Ministers Mr. Nibaldo Segura P., Mr. Jaime Rodríguez E., Mr. Rubén Ballesteros C., Mr. Hugo Dolmestch U., and Mr. Carlos Künsemüller L.

Source: Judiciary, August 14, 2007

Supreme Court issues final judgment in Human Rights case

The Supreme Court issued a final judgment in the investigation into the qualified kidnapping of Rubén Alejandro Velásquez Vargas and the homicide of José Esaú Velásquez Velásquez, which occurred starting on October 5, 1973, in the Lago Yunque sector, Palena province, Los Lagos Region.

In a split decision, the ministers of the second chamber of the highest court determined a penalty of three years and one day for the former carabineros: Jorge Palma for the homicide of the farmer. An identical sentence was given to Juan Hernán Garrido Gutiérrez, Noé Segura Santander, and Enrique Belmar Corral for the kidnapping of Velásquez Vargas.

All were granted the benefit of supervised release. In the civil aspect, the claim for compensation and damages by the victims' relatives, Ana Soto Álvarez and Daniel José Velásquez Soto, was upheld, ordering the convicted individuals to pay the sum of $60,000,000 for moral damages. The claim against the Treasury of Chile was dismissed, upholding the exception of lack of jurisdiction of the court.

Source: elmostrador.cl, August 13, 2009