Roberto Iván Avila Sepúlveda, 22 years old, a student at the Escuela Normal de Chillán living in the school's boarding facility, was detained in the courtyard of that educational establishment on October 3, 1973, at approximately 5:00 p.m., by four officials from the Chillán Investigative Service who were traveling in a white car, a Peugeot or Fiat 125, in the presence of witnesses.

According to information held by the National Commission for Truth and Reconciliation, the victim was handed over at the Chillán Investigative Police Headquarters to a member of the Military Intelligence Service (SIM), which operated inside the city's Regiment.

The events were communicated to Roberto Iván's mother, Mrs. Dora Sepúlveda Salazar, via a telegram signed by a fellow student of the victim. She, a resident of Tomé, traveled to Chillán on October 4, 1973, and learned of the circumstances of her son's detention.

She was told that detectives from Chillán had participated in the arrest, acting violently, separating the students who were talking to the victim at the time, and showing a badge to the victim. According to some of the young men, Roberto Iván Avila asked them, "and why me?"; without answering, he was forced into the vehicle and taken to an unknown destination.

Sótero Hernández Torres, a fellow student of the victim who testified before the Court on September 9, 1975, stated that in October 1973, he was in the courtyard of the Escuela Normal talking to Avila Sepúlveda when four civilians got out of a white car, a Fiat 125 or Peugeot, and, after speaking with the victim, proceeded to detain him.

With this information, Mrs. Dora Avila went to the Chillán Investigative Police, where, due to her insistence, officials told her that Sergeant Fuentealba of the Chillán Regiment had a complete report on her son's situation.

When she spoke with the soldier, he stated verbatim, "why does Investigative Police keep blaming only me for this kid's case?". Without obtaining further answers, she returned to Tomé after having visited the jail, Carabineros police stations, and the Regiment.

In her ceaseless search, in November 1980, while in Chillán, Dora Sepúlveda met a woman with the surname Pradenas, who told her that she knew the place where the bodies of the people who had been thrown into the river were buried.

She told her that there were at least 15 bodies, among them that of Arturo Prat Martí (currently a forcibly disappeared person), that of a young man with the surname Retamal from the town of Coelemu, and also, likely, that of her son. The place was located in the New Cemetery of Chillán, turning right at the end of a long path.

The truth is that, to this date, the fate of Roberto Avila Sepúlveda while in the power of his captors remains unknown.

JUDICIAL AND/OR ADMINISTRATIVE ACTIONS

On July 2, 1975, a writ of amparo (habeas corpus) was filed before the Court of Appeals of Chillán on behalf of the victim, registered under No. 95.679. In the filing, the mother recounts the circumstances of the detention and adds, "we have visited every organization that exists and has the power to detain people, without any positive result, despite the fact that my son's detention was a public act at five in the afternoon." On July 3, 1975, the Chief Commissioner of the Chillán Investigative Police, Ramón Lillo Inostroza, officially informed the Court that, after checking the Detainee Control Book, the detention of Roberto Iván Avila on October 3, 1973, was not registered, neither by personnel of that unit nor by any other jurisdiction.

Solely by virtue of this information and without any further investigation, the writ of amparo was rejected on July 4, 1975, and the records were sent to the Criminal Court on duty.

Thus, on July 7, 1975, the 2nd Criminal Court of Chillán initiated case file No. 43.973, issuing a broad order to investigate, summoning Mrs. Dora Sepúlveda to testify, and sending requisitions to the Criminal Judges of the Republic to locate Roberto Iván Avila Sepúlveda.

The victim's mother and the witness to the detention, Sótero Hernández Torres, appeared before the Court. The Chillán Investigative Police, responding to the respective judicial order, reported having made inquiries at the various Carabineros police stations, the Regiment, the local jail, hospitals, and the morgue, without obtaining results.

It was added that the victim's name was not registered in the Investigative Police's Detainee Control Book. (July 30, 1975). Without further action, on September 9, 1975, "deeming the investigation exhausted," the summary was closed and the case was temporarily dismissed "until better means of investigation appear." On September 23 of that year, the Court of Appeals of Chillán approved the consulted resolution.

On October 17, 1979, before the same Court, Dora Sepúlveda filed a criminal complaint for the crimes of kidnapping and possible qualified homicide committed against her son. Along with requesting investigative steps, she asked for the reopening of the previous case. There is no further information regarding this.

In addition, a series of administrative actions were carried out to determine the victim's whereabouts. On February 3, 1974, a request was sent to the Commander of the General Bernardo O'Higgins Regiment of Chillán, which received no response.

On August 10 of the same year, a similar request was made to the Commander-in-Chief of the III Army Division of Concepción, also without response. On April 22, 1976, Dora Sepúlveda sent a letter to the Minister of the Interior, asking for an investigation into her son's whereabouts.

The response was received on May 12 of the same year, in which the Division General and Minister of the Interior, Raúl Benavides Escobar, stated that Roberto Iván Avila did not have records in the files of that State Secretariat and that, according to information provided by the Chillán Investigative Police station, "the efforts aimed at locating his whereabouts are exhausted." Furthermore, in July 1976, Dora Sepúlveda sent a letter to General Pinochet, which was answered on August 27 of the same year, signed by Lieutenant Colonel Jorge Zincke Muñoz, Private Secretary.

In it, she was told that after all corresponding investigations were made, "no information has been obtained regarding your son." For his part, the Undersecretary of the Interior, Enrique Montero Marx, responded to Mrs.

Dora Sepúlveda on two occasions. On June 1, 1976, Montero Marx stated that, according to information received from the General Directorate of Carabineros, the efforts made by that institution were exhausted.

It was added that negative results had also been obtained from the Military Prosecutor's Office of Chillán, the 9th Mountain Infantry Regiment, Investigative Police, the Regional Intelligence Center (CIRE), and the Regional Intelligence Directorate.

The Undersecretary concluded by saying that inquiries had been made at the Escuela Normal de Chillán, which had been merged into the University of Concepción, establishing that the victim had attended classes only until October 1, 1973.

In May 1975, Dora Sepúlveda sent a letter to Lucía Hiriart de Pinochet. The response was received on August 1 of that year and came from the Provincial Governor of Concepción and Commander-in-Chief of the II Naval Zone, Rear Admiral Christian Storaker Pozo, who reported that "there is no knowledge of any detention order that would have affected him."

To this day, Roberto Iván Avila Sepúlveda remains in the status of a forcibly disappeared person.

Source: Corporation report

The Second Chamber of the highest court rejected the appeal in the form filed against the sentence that ordered the state to pay compensation of $150,000,000 for moral damages to the brother of Roberto Iván Ávila Sepúlveda, who was detained on October 3, 1973, in Chillán, the date from which his trail and destination were lost.

The Supreme Court rejected the appeal in the form filed against the sentence that ordered the state to pay compensation of $150,000,000 for moral damages to the brother of Roberto Iván Ávila Sepúlveda, who was detained on October 3, 1973, in Chillán, the date from which his trail and destination were lost.

In a split decision (case file 178.974-2023), the Second Chamber of the highest court—composed of ministers Leopoldo Llanos, Jean Pierre Matus, minister María Cristina Gajardo, and lawyers (i) Pía Tavolari and Andrea Ruiz—ruled out error in the challenged sentence, issued by the Court of Appeals of Talca, which increased the compensation amount set in the first instance.

"That, in the same sense and complementing the above, the adequate reasoning of judicial resolutions is an essential part of the guarantee of due process. The jurisprudence of the Inter-American Court of Human Rights is clear on this point: the guarantees of due process enshrined in Article 8 of the American Convention on Human Rights extend to all types of proceedings, including civil ones, insofar as they determine or affect the rights of persons (IACtHR.

Advisory Opinion OC-9/87. Judicial Guarantees in States of Emergency. Paragraph 28; IACtHR. Case of Baena Ricardo et al. v. Panama. Merits, Reparations and Costs. Judgment of February 2, 2001, Paragraph 124; IACtHR. Case of the Constitutional Court v. Peru. Merits, Reparations and Costs. Judgment of January 31, 2001. Paragraph 70)," the ruling maintains.

The resolution adds that: "The failure to observe the above constitutes a violation of the American Convention on Human Rights, as well as other International Human Rights Treaties that enshrine and protect the right to due process, and which are incorporated into our legal system by the provision contained in Article 5, second paragraph, of the Fundamental Charter of 1980."

Likewise, the ruling states: "That it is useful to bring up what has been expressed by national doctrine, and thus, precisely analyzing the cause of the aforementioned remedy, it has been pointed out: 'In the same sense, it has been pointed out to us that this cause concurs when the vice consists in the lack of considerations but not in the impropriety of these; the circumstance that the considerations are erroneous or deficient is not sanctioned with the nullity of the ruling, since that vice is constituted according to the law by the lack of considerations of fact or law, a situation that has been understood to occur, likewise, when they are contradictory to each other or destroy each other' (Mosquera Ruiz, Mario and Maturana Miquel, Cristián, Los Recursos Procesales, Editorial Jurídica de Chile, 2010, p. 250)."

For the Criminal Chamber: "(...) when analyzing the challenged sentence, it becomes evident that the denounced vice does not occur, since in its fifth motive, it makes an analysis of the background that led to confirming, with the declaration of increasing the sum to be compensated for moral damages, pointing out: 'That, regarding the amount for which the claim will be accepted, although it is clear that the pain caused by the application of torture and the affliction for the disappearance of his brother, which was caused to them by the illegitimate action of the State and its agents, cannot be objectively valued in money; according to the psychological sequelae and their entity, according to the nature of the narrated facts and the affectation that has been caused, and continues to cause, it is concluded by reason of said merit, that they must be granted satisfaction for the damages that, in justice and equity, corresponds to the sum that will be indicated in the resolution, weighing the damage actually caused, and the negative effects of the same on the development of their life, and which cannot be less than $150,000,000'."

"That, with the court's reasoning formulated in this way, there is no merit to question it through the remedy under examination. It is a different case if the challenger does not share the legal reasoning or the application of a particular rule regarding its legal requirements.

However, such discrepancies cannot serve as a basis to build a cause that is only aimed at controlling that the sentence complies with certain formal requirements, but not to question the application or non-application of regulations, since the law has reserved such reproach for substantive cassation, for which reason the formal nullity cause under analysis will be dismissed, for which reason the appeal cannot prosper," the ruling concludes.

Therefore, it is resolved: "That the appeal in the form filed by the State Defense Council against the sentence of July 4, 2023, issued by the Court of Appeals of Talca in case 2350-2022 Civil, is rejected, and it is not null."

Decision agreed upon with the dissenting votes of Minister Gajardo and lawyer Tavolari.

Source: pjud.cl 5/11/2024