Second War Council: October 29, 1973

On October 29, a War Council was convened, which decreed the death penalty for four individuals. They were executed at 06:00 on October 30, 1973, at the Pisagua Prisoner Camp.

The newspaper *El Tarapacá* reported the execution on October 31, 1973, referring to the alleged participation of the condemned in a plan intended to provoke civil war in Chile and rebellion within the Armed Forces. The following individuals were executed:

Rodolfo Jacinto FUENZALIDA FERNANDEZ, 43, civilian pilot, Regional Secretary of the Partido Socialista. Detained on September 11, 1973, at his home, transferred to the Carampangue Regiment, then to the Telecommunications Regiment, and from there to the Pisagua Prisoner Camp.

Juan Antonio RUZ DIAZ, 32, member of the Partido Socialista, customs official in Iquique. He turned himself in voluntarily to the Telecommunications Regiment.

José Demóstenes Rosier SAMPSON OCARANZA, 33, Public Relations Officer for the Iquique Municipality, socialist militant. He turned himself in voluntarily to the Carabineros of Iquique on September 21, 1973.

Freddy Marcelo TABERNA GALLEGOS, 30, Director of the Regional Planning Office (ORPLAN, currently MIDEPLAN) in Iquique, socialist militant. He turned himself in voluntarily on September 16, 1973, at the Telecommunications Regiment.

Regarding all those condemned by this Council, this Commission is convinced of the lack of legality in the processing of the case. This conviction is based on the following elements, without prejudice to those that apply generally to all such proceedings:

– There was no unanimity among the judges who concurred in the verdict. The sentence specifically notes that the Ad hoc Auditor "was in favor of imposing on the aforementioned defendants the penalty of ten years of *presidio mayor* in its medium degree, estimating that the norms of article 107 of the Penal Code should be applied in the degree of attempt, and that they are favored by the mitigating circumstance of their previous irreproachable conduct." Thus, in this Council, a basic principle established in the legislation was not met: that the death penalty can only be applied when all the sentencers agree on it.

– The prisoners were condemned for crimes that were not duly proven and for which it was not legally appropriate to charge them: the four defendants were condemned as authors of the crime provided for in No. 2 of article 245, in relation to article 246, of the Code of Military Justice.

The first of these norms, at that date, provided: "shall be punished with the penalty of *presidio militar mayor* in its maximum degree to death:… The military personnel who seduces Chilean troops or who is in the service of the Republic to pass to enemy ranks or deserts the flag in times of war"; Article 246 of the same Code established that: "if a non-military Chilean or an individual of the troop class incurs the crimes indicated in the previous article, the penalty may be reduced by one or two degrees according to the circumstances, …";

– The conduct for which the defendants were condemned, had it been real, was committed prior to September 11, 1973, contradicting the requirement of the imputed legal conduct, which is that it must occur in times of war;

– Had these acts been committed, they were not consummated. The sentence itself establishes this in its 3rd consideration: "That these acts, in the judgment of the War Council, constitute the crime referred to in articles 245 No. 2, in relation to article 246 of the Code of Military Justice, in the degree of frustration";

– The only means of proof cited in the sentence to accredit the participation of the condemned in the indicated crimes is the alleged confession of the defendants. Regarding the confessions, it must be kept in mind that the information received by this Commission allows us to affirm that torture was used systematically in the interrogations carried out at the Pisagua Detention Camp, which invalidates this means of proof in this instance.

The bodies of the victims were never returned to their families, despite the fact that it was morally and legally mandatory to do so. On October 30, 1973, some relatives of the condemned received a letter from the VI Division of the Ejército in which they were informed that: "… today, [name] was executed in Pisagua, by resolution agreed upon by the Military Tribunals in Time of War.

They were given a Christian burial in the Pisagua Cemetery." The next of kin were never told the precise location where they were buried. To date, their bodies have not been found.

This Commission is thus convinced that Rodolfo Fuenzalida, Freddy Taberna, Juan Ruz, and José Sampson were executed by State agents in a process that, by not conforming to the law, violated the rules protecting the human rights of the defendants.