Case No. 633-2011: Qualified homicide case committed against LUIS ERNESTO ROMERO ROSALES

CONSIDERING

1.- REGARDING THE MERITS FIRST That by resolution on page 665, Cecilio del Carmen Acevedo Arias, Ruperto Antonio Sepúlveda Soto, and Juan Antonio Peña Tobar were judicially charged as perpetrators of the crime of homicide of Luis Ernesto Romero Rosales, which occurred on October 16, 1973, in the city of Santiago, a crime provided for and sanctioned under Article 391 of the Penal Code; 6.- Report from the Investigative Brigade for Human Rights Crimes on page 29, which determines that on October 16, 1973, around 10:00 hours, Luis Romero Rosales was detained at his home located at Avenida Principal Capitán Ignacio Carrera Pinto No. 1376 in the Conchalí district, by Carabineros officers and transferred to a police unit located inside the Eneas Gonel neighborhood; 7.- Statements by María Elena Romero Rosales on pages 35, 60, and 385, in which she indicates that at the time these events occurred, she was the person responsible for her brothers. Therefore, on that day, October 16, 1973, when her brothers Luis and Ricardo began a fight, she resulted with cutting wounds on her right arm and back inflicted by her brother Luis with a knife. Following this, she fainted and awoke at the San José Hospital in Conchalí; consequently, all the information she possesses was provided to her by neighbors in the area. Upon the aggression, her brother Ricardo fled, and Luis also fled to hide from the Carabineros, but they found him and pulled him out of a septic tank where he was hiding, then tied him with barbed wire and took him to the police unit inside the Eneas Gonel neighborhood of the Conchalí district. That same day, once recovered from her injuries, she went to the police unit with her sister Gloria, and they were able to notice that her brother was being held inside the police unit, tied to a tree with the same barbed wire. She saw him in that state for about three days, but by the fourth day, he was no longer there. Upon asking, the Carabineros informed her that he had been transferred to other facilities, but, unsatisfied with the answer, she decided to begin searching for him in various places until she managed to locate and identify him at the Legal Medical Service. Of her relatives who were eyewitnesses, her brother Ricardo suffers from schizophrenia, her brother Alejandro passed away, and only her sister Gloria can testify. In the same statement, she recounts an episode of sexual assault she experienced inside the Eneas Gonel Precinct on the last day she went to visit her brother, where the same subject they nicknamed "Tomato Face," along with another official, allegedly raped her—a fact she did not report to the authorities at the time. The subject she recognizes one hundred percent is the tall, fat man with a reddened face who was the one who attended to her at the Precinct and let her inside; 11.- That the defendant RUPERTO ANTONIO SEPULVEDA SOTO, already identified in the case files, is CONVICTED as the perpetrator of the crime of qualified homicide against Luis Romero Rosales, committed on October 16, 1973, in the Santiago district, to the penalty of FIVE YEARS of minor imprisonment in its maximum degree, and to the accessory penalties of absolute perpetual disqualification for political rights and absolute disqualification for public offices and positions during the term of the sentence, and to the payment of court costs. 111.- That, as the requirements demanded by Article 15 of Law 18.216 are met in this instance, the corporal punishment of the convicted person is substituted by the regime of supervised release for a period of FIVE YEARS. The convicted person, Ruperto Antonio Sepúlveda Soto, must remain subject to the conditions established by Article 17 of the same law, and it is imposed that in the event of a breach of any of the conditions without just cause, the benefit will be revoked and the convicted person must serve the prison sentence, with credit given for the days he remained deprived of liberty, from January 2 to January 6, 2014, as recorded on pages 498 and 525.

Source: Judiciary, March 13, 2015

Criminal Case No. 854-2015: Qualified homicide case committed against LUIS ERNESTO ROMERO ROSALES

First: That from the facts narrated by Ms. María Elena Romero Rosales on pages 34, 60, and 385, it is possible to establish that the victim—Luis Romero Rosales—was seen alive at the Eneas Gonel Precinct from the day of his detention on October 16, 1973, until the 19th of the same month and year.

Although the autopsy report and death certificate added from pages 43 to 50 state that the body of Luis Romero Rosales was found at the Panamericana Norte Km 11 on October 20 of that year, setting the date of death as October 16, 1973, at 22:00 hours, the truth is that the reports from the Legal Medical Service do not provide any evidence to conclude the date indicated in the official documents as the exact date of death, especially if one keeps in mind that the report on page 48—the autopsy—only describes "discreet rigidity." Under these conditions, the version of Ms.

María Elena is credible in that she affirms that her brother remained in the Carabineros Unit located inside the Eneas Gonel neighborhood from his detention for a crime of causing injuries and during the 3 subsequent days.

These facts are consistent with the date the body was found on the public road—October 20 in the morning hours—and with the date the forensic examination was performed at the Legal Medical Service—the 21st of the cited month—a document in which the physician records the state of the deceased without describing any injuries other than the fatal ones caused by multiple gunshot wounds.

With the statements of María Elena Romero, it is also possible to maintain that on the last day she was able to see her brother and hear him warning her to leave the place, a Carabinero whom she identifies in the proceeding on page 384 as Ruperto Sepúlveda attended to her at the Unit, let her inside the precinct, and she adds that three officials took her to a dark place and sexually abused her.

That is to say, the witness affirms that on October 19, 1973, the Carabinero Sepúlveda was at the Unit, without there being other elements of judgment in the case files to maintain that at that date and time, the accused Sepúlveda was in that place performing duties as chief of the guard and therefore in charge of the detainees.

Furthermore, in the proceeding on page 201, Ms. María Elena Romero, to whom the photographs added on pages 173 to 181 were shown, says she recognizes Corporal Luis Cornejo Martínez 70% as one of those who "were there that night" at the Eneas Gonel Post.

Consequently, it is unknown if Sepúlveda Soto, a 1st Corporal of the Unit, was performing duties that night as the senior non-commissioned officer or if he was doing so as chief of the guard, on patrol, or in another capacity.

To the above, it should be added that the sergeants of the Eneas Gonel Police Station, according to a document identifying the unit's staff, with the surnames Tejo, Lazo, and Madrid, passed away prior to the start of this process, as stated in the police report on page 203.

Furthermore, of that precinct's staff, Corporals Aravena, Varela, and Bustos registered their entry into the Institution in the years 1956, 1950, and 1953, respectively, and at the time of the investigated events, they held the rank of 1st Corporal.

On the other hand, the elements of conviction also lead to the conclusion that the Carabineros officials who, after September 11, 1973, became part of the Eneas Gonel Precinct, did not perform guard duties.

This is affirmed by Hugo Espinoza Garrido on page 331 and Juan Peña Tobar on page 312, and it seems reasonable as the command of the Unit remained in charge of Lieutenant René Ortega, who was always assigned to that precinct as indicated in the document on page 53, consisting of the Personnel List of the Carabineros of Chile, in which he appears as the only officer of the Eneas Gonel Precinct staff with the rank of lieutenant as of October 1973; from the document on page 215, it is noted that at the Juanita Aguirre Post as of September 1973, the staff was headed by 1st Sergeant Luis Condeza Cid, and Corporals Hugo Espinoza Garrido, José Ferrada Escobar, Acastulo Gaete Solis, Manuel Huillipan Millanir, and Ruperto Sepúlveda Soto. In the statement provided by Ramón González Sepúlveda, a Carabinero assigned in 1972 to the Juanita Aguirre Post, he refers that all personnel of that unit on September 11, 1973, were attached to the Eneas Gonel Precinct—on page 197—and that the detainees were in charge of the guard non-commissioned officer, duties performed by the most senior officials of the rank of 1st Corporal and Sergeant. Although the accused Sepúlveda held the rank of 1st Corporal in October 1973, the recognition by María Elena Rosales, even at 70% regarding another Carabinero of the same rank also present in the unit on October 19, prevents attributing to the accused the position of guarantor of the detainee held illegally in the Eneas Gonel Unit of the Conchalí district, and the mere fact that Sepúlveda joined the institution in 1958 is not decisive for reaching a different conclusion. Complementing this, the evidence related in the ruling under review is sufficient to establish that Sepúlveda Soto intervened in the police procedure through which Romero Rosales was detained. However, the lack of convincing evidence makes it impossible to determine the circumstances under which the detainee was taken out of the unit, executed, and his body left on the Panamericana Norte; the lack of indications also does not allow this court to presume, with the gravity, precision, and concordance that the law requires, the participation of the accused in the homicide of Romero. Indeed, Ms. Gloria Romero Rosales, an eyewitness to her brother's detention, affirms that she saw him alive in the afternoon of October 16, 1973, when she went to the Precinct with her sister, without being attended to, observing him in the courtyard tied to a tree, which she managed to visualize through a hole from the outside. From her statements, nothing can be inferred about what happened after the day of the detention nor about the participation of Sepúlveda Soto in the death of Romero Rosales. Seventh: That such being the case, sharing the opinion of the Judicial Prosecutor in his opinion on page 1241, it is appropriate to accept the request of the defense of Sepúlveda Soto and, consequently, to acquit the accused of the charge that was formulated against him. Eighth: That the acquittal of the accused and, therefore, the non-existence of any agent responsible for the investigated events, necessarily leads to dismissing the civil lawsuit filed by the plaintiff on page 701, in all its parts. Indeed, the indemnifications possible to grant in a criminal process, as provided by Article 10 of the Code of Criminal Procedure, are those generated by conduct that constitutes the punishable act and the responsibility of its author, which does not occur in the case at hand, for only in that event does the court have the authority to analyze whether or not the requirements that make civil liability appropriate are met. For these considerations and in accordance, furthermore, with what is provided by Articles 514, 527, and 529 of the Code of Criminal Procedure, the sentence of March 13, 2015, written on page 1148, is revoked insofar as it convicts the accused RUPERTO ANTONIO SEPÚLVEDA SOTO, who remains acquitted of the charge formulated against him in the indictment regarding being considered the perpetrator of the crime of qualified homicide against Luis Romero Rosales, committed in October 1973, in the Santiago district. The aforementioned sentence is also revoked insofar as it accepts the civil lawsuit filed against the Treasury of Chile, and it is decided, instead, that this action is rejected, without costs.

Source: Judiciary, October 15, 2015