The minister on extraordinary assignment for human rights violation cases in the jurisdictions of Temuco, Valdivia, Puerto Montt, and Coyhaique, Álvaro Mesa Latorre, sentenced eight former uniformed officers as perpetrators of the crimes of aggravated homicide, kidnapping, and torture, as crimes against humanity, against Mario César Torres Velásquez, José Mario Cárcamo Garay, Francisco del Carmen Avendaño Bórquez, Óscar Arismendi Medina, José Luis Felmer Klenner, and José Antonio Barría Barría, perpetrated in September and October 1973 at the Fundo El Toro, in the commune of Fresia, and in Puerto Montt.

In the ruling (case file 10.819), the visiting minister sentenced the former Air Force officer, squadron commander, and ad-hoc auditor of the FACH at the time of the events, Patricio Eugenio Rodríguez Encalada, to life imprisonment as the perpetrator of the consummated crimes of aggravated homicide of the six victims.

He also sentenced former Army personnel Eugenio Adrián Covarrubias Valenzuela (a captain at the time of the events, retired as a general, currently serving a sentence in Punta Peuco for other crimes against humanity), Fernando Luis Concha Giordano, and Francisco Javier Alarcón Castro; and former Carabineros members René Isidro Villarroel Sobarzo (a lieutenant at the time of the events, currently serving a sentence in Punta Peuco for other crimes against humanity), José Harnoldo Ule Guineo (a lieutenant at the time of the events), Gabriel Osvaldo Mejías Leyton, and Carlos Berríos Rodríguez to two 10-year prison terms each, as perpetrators of the kidnappings and illegal coercion applied to the six victims.

The victims Mario César Torres Velásquez was 32 years old, a linotype operator, and a member of the Revolutionary Left Movement (MIR); Francisco Avendaño Bórquez, 20 years old, was a normal school teacher and a member of the MIR; José Luis Felmer Klenner, 20 years old, an employee, agronomy student, and member of the MIR; José Antonio Barría Barría, 23 years old, an agricultural worker and member of the MIR; José Cárcamo Garay, 26 years old, an agricultural technician and member of the MIR; Oscar Arismendi Medina, 46 years old, was an agricultural worker and a Socialist militant.

War Council In the judicial investigation and first-instance sentence, Minister Mesa Latorre established that on the morning of September 20, 1973, a large military contingent composed of members of the Army, Air Force, and Carabineros de Chile entered a property located in the commune of Fresia, known as 'Fundo El Toro', proceeding to violently detain all the men who were there.

They were held at the same location for several hours, during which time they were subjected to illegal coercion, torture, and interrogation.

Uniformed officers René Villarroel Sobarzo, Osvaldo Mejías Leyton, Fernando Concha Giordano, Edinson Chávez Gallardo, Francisco Alarcón Castro, Jaime Serra García, Carlos Berríos Rodríguez, and José Ule Guineo participated in these events, as recorded in the report by the then-captain Eugenio Covarrubias, head of Section II of the N° 12 Sangra Regiment in Puerto Montt.

Said report also identifies six of the detainees (the subsequent victims), labeling them as guerrillas captured in the aforementioned operation, and includes a list of weapons supposedly found on that occasion.

Following the mass detention of the men at Fundo El Toro, a group of the detainees was transferred to the Fresia Police Station, while Mario César Torres Velásquez, José Mario Cárcamo Garay, Francisco del Carmen Avendaño Bórquez, Óscar Arismendi Medina, José Luis Felmer Klenner, and José Antonio Barría Barría were transferred to the city of Puerto Montt, where they remained detained at the Investigations Police barracks for approximately one month.

On September 23, the 6 men mentioned above, along with other civilians, were placed at the disposal of the Wartime Military Prosecutor's Office of Puerto Montt. Later, on October 11, a War Council was convened to sanction the detainees.

This Council was composed of the then-colonel and commander of the Sangra Regiment Rubén Rojas Román (deceased), Air Group commander Renato Valenzuela (deceased), Carabineros lieutenant colonel Eduardo Partarrieu Navarrete (deceased), frigate captain Osvaldo Federico Schwarzenberg Stegmaier, major Patricio Lira Atkinson (deceased), squadron commander Fernando Roca Meroz (deceased), and, integrated as an ad-hoc auditor for the Air Force, squadron commander Patricio Rodríguez Encalada.

The spurious War Council issued a sentence condemning detainees Mario César Torres Velásquez, José Mario Cárcamo Garay, Francisco del Carmen Avendaño Bórquez, Óscar Arismendi Medina, José Luis Felmer Klenner, and José Antonio Barría Barría to death, accusing them of the absurd crime of treason.

Everything that took place there was merely a staged performance to achieve its objective, which was to execute the detainees.

The unheard-of sentence was carried out on October 19, 1973, at 9:00 AM. The six condemned men were executed by firing squad at Air Force facilities located in the Chamiza sector of the city of Puerto Montt. by Darío Núñez

Source: resumen.cl, December 17, 2023

Minister Álvaro Mesa sentences retired FACH officer to life imprisonment for homicides at Fundo El Toro

The visiting minister also sentenced retired Army personnel Eugenio Adrián Covarrubias Valenzuela, Fernando Luis Concha Giordano, and Francisco Javier Alarcón Castro; and the then-members of the Carabineros René Isidro Villarroel Sobarzo, José Harnoldo Ule Guineo, Gabriel Osvaldo Mejías Leyton, and Carlos Berríos Rodríguez to two 10-year prison terms each, as perpetrators of the kidnappings and illegal coercion applied to the six victims.

The minister on extraordinary assignment for human rights violation cases in the jurisdictions of Temuco, Valdivia, Puerto Montt, and Coyhaique, Álvaro Mesa Latorre, sentenced the squadron commander and ad-hoc auditor of the Air Force at the time of the events, Patricio Rodríguez Encalada, to life imprisonment as the perpetrator of the consummated crimes of aggravated homicide, as crimes against humanity, of Mario César Torres Velásquez, José Mario Cárcamo Garay, Francisco del Carmen Avendaño Bórquez, Óscar Arismendi Medina, José Luis Felmer Klenner, and José Antonio Barría Barría.

These crimes were perpetrated in September 1973 at the Fundo El Toro, in the commune of Fresia.

In the ruling (case file 10.819), the visiting minister also sentenced retired Army personnel Eugenio Adrián Covarrubias Valenzuela, Fernando Luis Concha Giordano, and Francisco Javier Alarcón Castro; and the then-members of the Carabineros René Isidro Villarroel Sobarzo, José Harnoldo Ule Guineo, Gabriel Osvaldo Mejías Leyton, and Carlos Berríos Rodríguez to two 10-year prison terms each, as perpetrators of the kidnappings and illegal coercion applied to the six victims.

In the civil sphere, the court accepted the filed claim and ordered the state to pay a total compensation of $2,750,000,000 for moral damages to the victims' families.

War Council In the sentence, Minister Mesa Latorre established the following facts: “A.- That on September 20, 1973, in the morning, a military contingent composed of members of the Army, Air Force, and Carabineros de Chile entered a property located in the commune of Fresia, known as ‘Fundo El Toro’, proceeding to violently detain all the men who were there, keeping them held for several hours, during which time they were subjected to illegal coercion (torture) and interrogations, all of which is evidenced, among other proofs, in the statements of Patricio Arismendi Añazco (at pages 61 and 93 of Volume I), Miriam Arismendi Añazco (at pages 64 and 102 of Volume I), Juvenal Sánchez Guarda (at page 131, Volume I), Pablo Carrillo Aburto (at pages 134 and 2492, Volumes I and V respectively), Guido Negrón Aburto (at pages 136, 2263, and 312, Volumes I, V, and VIII respectively), Jorge Ovando Agüero (at pages 138, 775, and 1391, Volumes I, II, and III respectively), Sergio Angulo Cárdenas (at pages 142 and 581, Volumes I and II), Luis Lopetegui Santana (at pages 423 and 1975, Volumes I and IV respectively), Graciela Vegas Soto (at page 1224 of Volume V), who were witnesses, direct and/or hearsay, to what happened there. These facts were also described in the indictment order on page 1293 and following (Volume III) dated February 26, 2016, issued by Minister Leopoldo Vera Muñoz and confirmed by the Illustrious Court of Appeals of Puerto Montt on page 1507 (Volume IV).

B.- That in the events described above, the following participated as apprehenders: René Villarroel Sobarzo, Osvaldo Mejías Leyton, Fernando Concha Giordano, Edinson Chávez Gallardo, Francisco Alarcón Castro, Jaime Serra García, Carlos Berríos Rodríguez, José Ule Guineo, as indicated in the report prepared by Captain Eugenio Covarrubias, found on page 2 of military file N° 11/73, a report that also mentions José Luis Felmer Klenner, Óscar Arismendi Medina, Francisco del Carmen Avendaño Bórquez, Mario César Torres Velásquez, and José Mario Cárcamo Garay as guerrillas captured in this operation, along with a list of weapons supposedly found on that occasion.

C.- That subsequent to what is related in letter A, a group of the detainees was transferred to the Fresia Police Station, while Mario César Torres Velásquez, José Mario Cárcamo Garay, Francisco del Carmen Avendaño Bórquez, Óscar Arismendi Medina, José Luis Felmer Klenner, and José Antonio Barría Barría (persons executed by order of the War Council) were transferred to the city of Puerto Montt, where they remained detained at the Investigations Police barracks for approximately one month, as can be inferred, among other proofs, from statements made by Gladys Arismendi Añazco (at pages 62, 99, and 563, of Volumes I and II), Miriam Arismendi Añazco (at pages 101, 1961, and 2291 of Volumes I, IV, and V respectively), Blanca Cárcamo Garay (at pages 86 and 72, of Volumes I and II), Luis Gallardo (at page 3145 of Volume VIII), and Jaime Benítez Sepúlveda (at page 3289 of Volume VIII). These statements also highlight the poor condition these men were in as a result of the torture they suffered.

D.- That continuing with the events, the 6 men mentioned above, along with other civilians, were placed at the disposal of the Wartime Military Prosecutor's Office of Puerto Montt, initiating case file N° 11/73 (added to this process and reviewed at page 72, Volume I), on September 23, 1973.

Later, on October 11, 1973, a War Council was convened, which was composed of Colonel Rubén Rojas (Deceased. Death certificate at page 3364 of Volume VIII), Group Commander Renato Valenzuela (Deceased.

Death certificate at page 3368 of Volume VIII), Lieutenant Colonel Eduardo Partarrieu Navarrete (Deceased. Death certificate at page 3363 of Volume VIII), Frigate Captain Osvaldo Schwarzenberg, Major Patricio Lira Atkinson (Deceased.

Death certificate at page 3367 of Volume VIII), and Squadron Commander Fernando Roca Meroz (Deceased. Death certificate at page 3366 of Volume VIII) as members, and integrated as an ad-hoc auditor for the Air Force, Squadron Commander Patricio Rodríguez Encalada, all of which is recorded on page 84 of the aforementioned military file.

E.- That the aforementioned War Council issued a conviction against Mario César Torres Velásquez, José Mario Cárcamo Garay, Francisco del Carmen Avendaño Bórquez, Óscar Arismendi Medina, José Luis Felmer Klenner, and José Antonio Barría Barría, sentencing them to death for their responsibility as perpetrators of the crime of treason contemplated in Article 248 N° 2 of the Code of Military Justice (Pages 92 to 97 of military file 11-73).

This sentence was executed on October 19, 1973, at 9:00 AM, at the facilities of the Chilean Air Force located in the Chamiza sector of the city of Puerto Montt (Page 101 of military file 11-73), with the 6 aforementioned condemned men dying at the scene, as recorded in the death certificates on pages 14, 17, 19, 22, 54, 187, 758, and in the statements of Carlos Humberto Ovando Méndez (page 424 of Volume I), who transported the lifeless bodies to a FACH van; Juan Carlos Poloni (page 966 of Volume II), who was responsible for verifying the deaths of the condemned on the day of the execution; and Luis Eduardo Garrido Quiroz (page 146 of Volume I), who examined the bodies and issued the respective death certificates.

F.- That the aforementioned sentence refers to the vague statements of the prisoners, statements which, as a result of the mistreatment they received, make their words implausible due to the conditions the detainees were in.

Thus, said War Council was a predetermined act without foundation to end the lives of these detainees, because as evidenced, among other proofs, in the statements of José Purralef (pages 95, 2518, and 2719, Volumes I, V, and VI, respectively), Juvenal Sánchez Guarda (pages 131, 224, all Volume I), Eugenio Covarrubias (page 338 Volume I), María Langenbech (page 2289, Volume V), and Carlos Berríos Rodríguez (pages 3405 to 3407 and 3420 to 3421 vta., all of Volume IX), the prisoners did not possess the quantity and types of weapons detailed in the file, nor is it true that they were guerrillas.

G.- That according to the statements of the defendants' defense attorney, Mr. Hugo Ocampo Paniagua (pages 105, 569, 572 of Volumes I and III respectively), an adequate defense could not be developed in the case as he was not allowed the necessary time for it (2 days), nor could he familiarize himself with the facts since he could never have direct contact with the defendants for an interview, adding that he could perceive a series of contradictions in the detainees' statements, so the defense by a single lawyer was something laughable.

To the above, he adds that they were sentenced by making an aberrant retroactive application of D.L. N° 5 (Declaring that the State of Siege decreed due to internal commotion must be understood as ‘State or time of War’), as this significantly increased the penalties of Law 17.798 on arms control, since in its Art. 3, this Decree Law adds the death penalty to crimes that were only punishable by imprisonment, all with the flagrant contradiction of the norm contained in Article 11 of the Political Constitution in force at that time, which states ‘No one can be condemned unless they are legally tried and by virtue of a law promulgated before the act on which the trial is based’, and that contained in the first paragraph of Article 18 of the Penal Code, which in its text in force at the time of the investigated events states ‘No crime shall be punished with any penalty other than that indicated by a law promulgated prior to its perpetration’. This defense attorney indicated that there was a preconceived determination to appear to have a formal process, without granting the accused an effective and real opportunity for defense, despite the severity of the proposed penalties. Regarding the latter, it is necessary to recall what was stated by Ernesto Jhan Barrera on page 1388 (Volume III), where he testifies to having received the order to prepare personnel for the execution of the victims before the War Council was held.

H.- That it should be noted that from reading file 11-73, it was initiated for the crime of infringement of the arms control law and Article 248 of the Code of Military Justice. Regarding the events that began on September 15, 1973, according to consideration 2 of the sentence.

Now, the Government Junta issued D.L. N° 3 on September 11, which declared a state of siege for the entire country, published on September 18 of that year. Subsequently, D.L. N° 5 was issued on September 12, but its validity began on September 22, 1973.

This D.L. established that the State of Siege decreed due to internal commotion must be understood as ‘State or time of War’ and also increased the penalties of the arms control law. Without prejudice to what has already been stated in the preceding letters regarding the simulation of the War Council for the purpose of executing the aforementioned victims, the sentence of the military file in motive 5° classifies the acts against those prosecuted at that time under the penal type of Art. 248 N° 2 (which stated ‘Shall be subject to the penalty of major imprisonment in its maximum degree to death: 2° He who, in case of war and with the purpose of favoring the enemy or harming Chilean troops, commits an action or omission that is not included in the preceding articles nor constitutes another crime expressly punished by the laws’) and for this, it indicates ‘That although it is true that the accused formed a militia or militarily organized group, it is no less true that their purpose and resolution are constituted by acts that had the precise aim of harming Chilean troops in time of war as can be inferred from the invoked statements…’. More specific is the sentence in motive 2, which expressed ‘That according to the merit of considerations 10 and 11 and especially to what is provided in Articles 418 and 419 of the Code of Military Justice already cited, it is evident that with the Republic in a state of war and Chilean troops facing the enemy from the very moment or instant they undertook security services against those guerrilla organizations, and even more so the very actions of subduing and reducing those same adversaries, who were paramilitarily prepared with the aim of avoiding greater damages than those already caused by the action of these, it is sufficiently demonstrated that the Chilean troops are facing the enemy.’

I.- That given what was described above by the normative hierarchy of Article 11 of the 1925 Political Constitution cited above and by the specialty of Article 18 of the Penal Code, a law pronounced subsequently that allows for the application of a type or a higher penalty cannot be applied to the detriment of the prosecuted or sentenced person.

In this case, as a state of war was declared, the penal type of Article 248 cited above was applied to the detriment of the sentenced. If a state of war had not been declared, this penal type could not have been applied.

It is in this sense that a violation of the principle of non-retroactivity of criminal law occurs, as it harms the prosecuted and violates the superior norm of the legal system of the time, which was Article 11 of the Political Constitution. In any case, as has been said in the previous letters, the War Council was only a form or a bad example of what is due process.

J.- That in the same line of reasoning, one must also keep in mind what was stated by Carlos Ebensperger on page 1290 (Volume III), in that he pointed out to the general that since the commission of this crime was prior to the date on which the state of war was decreed, the norms of this state could not be applied to him, much less the firing squad, reporting that because of that comment, the general became extremely annoyed and, at the end of September, dismissed him for treason to the fatherland, professional ineptitude, and lack of military courage.

K.- That the participants of this War Council, despite having been pointed out by the defense attorney the violation of the Political Constitution of the Republic that was being committed, and with the physical, procedural, and psychological condition of the accused being manifest, obvious, and serious, acted in a predetermined manner and without analyzing the merit of the procedure or the constitutional and legal norms described above, nor what Prosecutor Ebensperger (a person specialized in the matter) had pointed out to the general, approving the death penalty for the accused without making any objection, so it can only be classified as homicide.

L.- That having performed the preceding analyses, there is no doubt that everything that took place there was only a staged performance to achieve its objective, which was to execute the previously identified detainees, which happened, as recorded in the certification on page 101 of file 11-73.

M.- That in addition to what was stated above, one must consider the tendency of the time, which relates to using military courts in times of war to justify repressive actions without foundation. In this aspect, the report of the National Commission on Political Imprisonment and Torture, the ‘War Councils’ (added to pages 3307 to 3313 of Volume VIII), concluded that in them, the character and rights of the prisoners were not respected, nor were any of the precepts established in international conventions on war considered. ‘In effect, they limited themselves to receiving and recording information contrary to the accused, omitting any action or diligence that could benefit and exonerate them, even though it was their duty to investigate the truth of the facts and gather the information that would serve to prove them.’

N.- That also based on what was previously indicated, the Honorable Supreme Court has ruled regarding War Councils held at the time of the investigated events, invalidating them through the appeal for review, in cases file N° 27.543-16, N° 1488-20, N° 4176-2019, and N° 6889-2019, simple copies of which are attached to this process from pages 2104 to 2171 (Volume V), from pages 3166 to 3185 (Volume VIII), from pages 3475 to 3487 (Volume IX), and from pages 3488 to 3500 (Volume IX), respectively.”

Source: pjud.cl, December 13, 2023