The Second Chamber of the highest court sentenced three retired members of the Army for their responsibility in the aggravated kidnapping of textile worker Jorge Leonel Gaete Espinoza. The crime was committed starting on September 20, 1973, in the current commune of San Joaquín.

In the ruling (case file 36.665-2019), the Second Chamber of the highest court—composed of ministers Haroldo Brito Cruz, Leopoldo Llanos Sagristá, María Teresa Letelier Ramírez, Juan Manuel Muñoz Pardo, and Dobra Lusic Nadal—sentenced officers Alejandro Emilio Valdés Vistainer and Iván de la Fuente Sáez to 5 years and one day of imprisonment as perpetrators of the crime.

Meanwhile, it confirmed the sentence of 3 years and one day of imprisonment imposed on Gilberto Ubaldo Sepúlveda del Pino and decreed the acquittal of Hernán Ricardo Ovalle Hidalgo.

The Supreme Court considered it an error in the second-instance sentence, issued by the San Miguel Court of Appeals, to reclassify the crime as simple kidnapping.

“It is now appropriate to analyze the first chapter of the appeal for substantial cassation proposed by the Human Rights Program Unit of the corresponding Undersecretariat, insofar as it reproaches the sentencers for having carried out a reclassification of the criminal type regarding the established facts, from the aggravated form of kidnapping, contained in the final paragraph of Article 141 of the penal code, in its wording in force at the time of the events, to the form of simple kidnapping in its first paragraph,” the ruling states.

The resolution adds: “That, to classify the crime attributed to the defendants as simple kidnapping, the appealed sentence estimated in its nineteenth consideration, as transcribed in the fifth foundation ut supra, ‘that the classification of kidnapping cannot be due to the fact that, on the occasion of the confinement or in the context of it, the agents caused the death of the victim.

Regarding the reference to ‘the agents’ who allegedly intervened according to the ruling in the execution of the victim, it is also questioned because it is worth remembering that the defendants are not charged with the crime of homicide, since it was not possible to prove who caused the death of Jorge Leonel Gaete Espinoza’, a flawed reasoning since it implies the precise determination of the perpetrator who caused the death; however, from the merits of the process, it appears that, after the deprivation of liberty, the victim appeared dead on the public thoroughfare, presenting six ballistic projectile impacts in the anterior region of the thorax, four of them with projectile exit. That is to say, the deprivation of liberty ended with his death.”

“However, the aggravating factor specified by the rule under study, that is, the serious harm to the victim—which does not rule out a fatal result in the wording of the time—is verified in this case, since the detention itself originates from a totally irregular and arbitrary procedure, in a context of nationwide repression that it was impossible to ignore, even less so for personnel of the Chilean Army, of the 3rd Company of the Combat Group Battalion of the Infantry School of San Bernardo, as they were the ones in charge of the Sumar company premises, among others of the Nylon section, as established in the sixth motivation of the first-instance ruling.”

“Well then, the deprivation of liberty and the subsequent subjection of the victim to interrogations and physical and psychological abuse, as established in the ninth foundation of the first-instance ruling, necessarily implies accepting the serious harm that is foreseen will be caused to that person by such action and, therefore, acting with eventual intent, which the form of kidnapping aggravated by the result of serious harm admits ‘and even negligence’ (Matus, Jean Pierre and Ramírez, María Cecilia.

Manual de Derecho Penal Chileno, 3rd ed., Tirant lo Blanch, 2019, pp. 246 and 247).”

“It is unnecessary to point out that in the established facts there is no break in continuity in their development, as they begin with the illegitimate deprivation of liberty of Jorge Leonel Gaete Espinoza by the defendants and concluded only with his death.”

It is further considered: “That in this way, there has been an error in the classification of the crime imputed to the defendants as constituting simple and not aggravated kidnapping, an error that has had an influence on the dispositive part of the ruling as it has enabled the imposition of a penalty lower than that which legally corresponds to them.”

Therefore, it is resolved that

“I. That the appeals for cassation on the merits, filed by the defenses of the accused Alejandro Emilio Valdés Visintainer, on page 2,766; Hernán Reinaldo Ricardo Ovalle Hidalgo, on page 2,775; and Gilberto Ubaldo Sepúlveda del Pino, on page 2,832, against the sentence of January 18, 2019, written on page 2,692 and following, pronounced by the Minister in Extraordinary Visit Ms.

Marianela Cifuentes Alarcón, are rejected.

II. That the aforementioned sentence is revoked, insofar as it sentenced Hernán Reinaldo Ricardo Ovalle Hidalgo as a perpetrator of the crime of aggravated kidnapping of Jorge Leonel Gaete Espinoza, perpetrated starting on September 20, 1973, in the commune of San Miguel—today San Joaquín—and, in its place, it is decided that he is acquitted of such charge.

III. That the aforementioned sentence is confirmed, with the declaration that Iván de la Fuente Sáez and Alejandro Emilio Valdés Visintainer are sentenced to the penalty of five years and one day of major imprisonment in its minimum degree and to the accessory sanctions of absolute perpetual disqualification for public offices and political rights, absolute disqualification for professional titles for the duration of the sentence, and the payment of costs, as perpetrators of the crime of aggravated kidnapping, in a consummated degree, committed against Jorge Leonel Gaete Espinoza, starting on September 20, 1973, in the commune of San Miguel—today San Joaquín.”

IV. That given the death of Víctor Daniel Guzmán Martínez, which occurred on March 6, 2022, the Minister in Extraordinary Visit, or whoever replaces her, must issue the resolutions that are legally appropriate.”

Decision to reduce the sentences of the convicted Fuente Sáez and Valdés Visintainer, with the dissenting vote of ministers Brito and Llanos.

Textil Sumar

In the first-instance ruling, the visiting minister of the San Miguel Court of Appeals, Marianela Cifuentes Alarcón, established the following facts:

“1° That, days after September 11, 1973, Jorge Leonel Gaete Espinoza, a militant of the Socialist Party, responding to the call of the new authorities of this country, presented himself at his workplace, the Sumar textile industry, Nylon plant, located at Calle El Pinar No. 205 in the commune of San Miguel (currently the commune of San Joaquín), at which time he was detained, without legal basis, with the consent of Army Major Iván de la Fuente Sáez, by soldiers from the Infantry School of San Bernardo, under the command of Lieutenant Alejandro Emilio Valdés Visintainer and officers Gilberto Ubaldo Sepúlveda del Pino (lieutenant), Hernán Reinaldo Ricardo Ovalle Hidalgo (second lieutenant), and Víctor Guzmán Martínez (second lieutenant).

2° That, days earlier, in compliance with an order from Major Iván de la Fuente Sáez, Lieutenant Alejandro Emilio Valdés Visintainer, together with soldiers, student corporals, and officers Sepúlveda del Pino, Ovalle Hidalgo, and Guzmán Martínez, all from the Infantry School of San Bernardo, had taken charge of the aforementioned textile factory, at which time Lieutenant Valdés Visintainer distributed the officers and subordinate personnel into the Cotton, Polyester, and Nylon sections.

3° That the aforementioned State agents, after detaining Jorge Leonel Gaete Espinoza, kept him deprived of liberty inside the facilities of the aforementioned factory, specifically in the Welfare office of the Nylon plant.

4° That on September 21, 1973, at night, Jorge Leonel Gaete Espinoza was found on the public thoroughfare, deceased, as a result of the impact of six projectiles in the thorax, which were fired with a firearm.”

Source: pdju.cl, January 5, 2023