In a unanimous ruling, the Second Chamber of the highest court confirmed the sentence that condemned the appellants Ernesto Luis Bethke Wulf and Jorge Hugo Schudeck Toutin to 15 years and one day and 10 years and one day of effective imprisonment, respectively, in their capacity as authors of the crimes.

The Supreme Court rejected the cassation appeals filed by the defense against the sentence that convicted retired Army officers for their responsibility in the qualified homicide of Jorge Pedro Pacheco Durán, Denrio Max Álvarez Olivares, and Ernesto Domingo Mardones Román, who were detained and admitted to the former Public Prison of Santiago after September 11, 1973, a penitentiary facility from which they were removed and executed in Colina.

In a unanimous ruling (case file 63.256-2020), the Second Chamber of the highest court—composed of ministers Haroldo Brito, Manuel Antonio Valderrama, Jorge Dahm, and acting lawyers Carolina Coppo and Gonzalo Ruz—confirmed the contested sentence, issued by the Santiago Court of Appeals, which sentenced the appellants Ernesto Luis Bethke Wulf and Jorge Hugo Schudeck Toutin to 15 years and one day and 10 years and one day of effective imprisonment, respectively, in their capacity as authors of the crimes.

"Regarding this matter, our procedural system requires, in order to file an appeal for substantial invalidation, that the scope or meaning of the law alleged to be infringed be clearly specified and that the manner in which it has been violated be indicated determinately.

In other words, a true prosecution of the legal provisions whose disregard is invoked is indispensable, in order to demonstrate that they have been incorrectly applied, such that these judges are in a position to address the legal problems submitted for their decision in a concrete and defined manner, because otherwise these remedies would become a new instance of the litigation that the legislator expressly wished to avoid and which is precisely what underlies the brief in the case files," the ruling states.

The resolution adds: "That what the law seeks, by establishing that express mention must be made of how the contraventions of the law influence the dispositive part of the ruling, is an entire reasoning, an intellectual construction aimed at demonstrating, in an indubitable way, what result the appealed court would have reached in the event of having applied the law in the manner that the claimant deems correct; and to demonstrate, likewise, that having done so in a different and erroneous way has resulted in a ruling that is wrong in law."

"On the contrary, in the aforementioned brief, a series of deficiencies are noted, which due to their significance allow us to conclude that they do not meet the minimum requirements already noted above, which prevent it from prospering, as it is constructed by challenging the facts of the process established by the judges of the merits and attempts to vary them, proposing other decontextualized ones that, in the opinion of the appellants, would be proven," it adds.

For the country's highest court: "Such a purpose, certainly, is foreign to appeals of this kind, intended to invalidate a sentence in the cases expressly established by the law. That is, in cassation, the legality of a sentence is analyzed, which means that a scrutiny is carried out regarding the correct application of the law and the right, but not the facts as they have been sovereignly given as proven or established by the magistrates in charge of the instance, unless the effective infringement of rules regulating evidentiary value has been denounced and proven, which did not happen in the proposed case, since as is evident from reading the brief, the appellant only limits himself to stating the cause related to the infringement of the rules regulating evidence, without specifying the way in which those errors could have occurred concretely in the logical reasoning of the sentence, generically denouncing infringements of procedural rules that do not share the nature of rules regulating evidence—alluding to articles 451 to 487 of the Code of Criminal Procedure—and invoking those that do possess that quality, but without specifying the section of the referred precept that is deemed infringed, basing the denounced infringements on a weighting of the evidentiary elements brought to the process that is different from that carried out by the trial judges, as was pointed out."

"By virtue of all the above, the remedy filed in favor of the convicted Ernesto Luis Bethke Wulf cannot prosper and will be dismissed," the resolution affirms.

Likewise, the ruling records: "That, without prejudice to what was reasoned above, the constant jurisprudence of this Criminal Chamber has used the following arguments to dismiss the cause in question, based on the violation of article 103 of the Penal Code:

a) On one hand, the classification of a crime against humanity given to the illicit act committed forces the consideration of International Human Rights Law regulations, which excludes the application of both the statute of limitations and the so-called 'half-prescription' [partial statute of limitations] in this class of crimes, understanding such institutes 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.

b) On the other hand, it is emphasized that whatever interpretation may be made of the foundation of the legal precept in discussion, the truth is 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 (among others, SCS Roll No. 35.788, of March 20, 2018, Roll No. 39.732-17, of May 14, 2018, and Roll No. 2458-18 of July 27, 2019).

c) Finally, just as this Court has also maintained in previous rulings, article 103 of the Penal Code is not only contemplated in the same title as the statute of limitations, but is developed after it, and as both institutes are based on the passage of time as a justifying element for their application, the impropriety of applying the total statute of limitations must necessarily reach the partial one, since no reason is seen to recognize the time as having the effect of reducing the sanction, because both situations are based on the same element that is rejected by the international humanitarian penal system, so that neither is appropriate in illicit acts such as the one in the present case (SCS No. 34057-16 of October 6, 2016)."

"Under such conditions, this section of the cassation appeal under examination will be dismissed," it concludes.

In the first-instance sentence, the special judge Mario Carroza Espinosa established the following facts:

" 1.- That, on December 19, 1973, at 8:30 PM, a military patrol of the No. 1 'Buin' Motorized Infantry Regiment of the Chilean Army, led by Captain Carlos Enrique Rudloff Molina (deceased) and composed of Captain Guido Hermes Riquelme Andaur and Lieutenants Kenny Godofredo Aravena Sepúlveda (deceased), Ernesto Luis Bethke Wulf, and Hugo Jorge Schudeck Toutín, in compliance with orders issued by the unit commander, Colonel Felipe Geiger Stahr (deceased), which were transmitted to the officers by Captain Rudloff, proceeded to remove from the Public Prison of Santiago the detainees Jorge Pedro Pacheco Durán, Denrio Max Álvarez Olivares, and Ernesto Domingo Mardones Román, a circumstance that was recorded on the sheet with folio No. 284, order No. 50, of the Guard Service Book of that penal establishment, and they were transported in a ¾-ton pickup truck with side rails to an unpopulated area called Las Canteras in the commune of Colina;

2.- That once at the location, the commanding officers, Captains Rudloff and Riquelme, ordered the detainees, who had their hands tied and were blindfolded, to get out of the vehicle and ordered the rest of the patrol, Lieutenants Aravena, Bethke, and Schudeck, to execute them, which they carried out through long-distance gunfire, which caused the victims bullet wounds and resulted in their death at the same location;

3.- That once the crime was committed, the patrol took the lifeless bodies of these people and transported them to the Legal Medical Service, where they were finally abandoned.

The autopsy report established that the cause of death for Pacheco Durán was three thoracic bullet wounds and one cranial-encephalic wound, with projectile exit; that of Denrio Max Álvarez Olivares was two thoraco-abdominal wounds with projectile exit; and those of Ernesto Domingo Mardones Román were six wounds with projectile exit and one without projectile exit. "

The Supreme Court did not issue a ruling regarding the cassation appeals filed by the defense of two convicted individuals who died while the case was being processed.

Source: pjud.cl, December 8, 2023