The minister on special assignment for human rights violation cases at the San Miguel Court of Appeals, Marianela Cifuentes, sentenced four retired members of the Carabineros for their responsibility in the crime of simple homicide of Humberto Fernando Fernández Trujillo.

The illicit act was perpetrated in the La Bandera shantytown in September 1977. In the ruling (case file 129-2011), Minister Cifuentes sentenced Luis Hernán Correa Soto to an effective prison term of 6 years as the perpetrator of the crime.

Meanwhile, Fernando Elías Arancibia Sarmiento, Osvaldo René González García, and Luis Gilberto Soto Zamorano were sentenced to 541 days in prison, with the benefit of a conditional remission of the sentence, as accessories after the fact.

During the investigation phase, the visiting minister established the following facts: “ 1st That on September 7, 1977, around 01:30 hours, while Humberto Fernando Fernández Trujillo was sleeping in a makeshift dwelling in the La Bandera shantytown, in the La Granja commune, in the company of his wife Marta Gricel Irarrázabal Pérez, his two young daughters, and Marco Antonio Irarrázabal Pérez, the property was irregularly raided by Lieutenants Luis Hernán Correa Soto and Osvaldo René González García, 2nd Sergeant José Manuel Olave Saavedra—currently deceased—and 1st Corporals Fernando Elías Arancibia Sarmiento and Luis Gilberto Soto Zamorano, all police officers assigned to the Department of Drug Control and Crime Prevention (O.S.7) of the Carabineros de Chile, who broke down the access door and, immediately thereafter, entered the premises. 2nd That, immediately thereafter, without any provocation from Fernández Trujillo, Luis Hernán Correa Soto and José Manuel Olave Saavedra fired upon him, causing, among others, a wound in the thoracic area that compromised both lungs and the thoracic aorta, causing acute anemia and, subsequently, his death. 3rd That, subsequently, instead of reporting the circumstances of the commission of the aforementioned crime, the aforementioned police officers carried out a series of maneuvers to conceal them, both from police and judicial authorities, including altering the crime scene.” In civil matters, the state treasury was ordered to pay a total sum of $240,000,000 (two hundred and forty million pesos) to the victim's partner and daughters.

Source: elclarin.cl, March 29, 2018

Humberto Fernández Trujillo Case: The Supreme Court sentenced a former Carabinero for the execution of a La Bandera resident on September 7, 1977

Humberto Fernández Trujillo Case: The Supreme Court sentenced a former Carabinero for the execution of a La Bandera resident on September 7, 1977, and acquitted three other former Carabineros of the charge of being accessories after the fact.

On October 2, the Supreme Court sentenced retired Carabineros officer Luis Hernán Correa Soto to a prison term of 10 years and one day, without benefits, as the perpetrator of the crime of aggravated homicide of Humberto Fernández Trujillo.

In the judgment (case file 28.474-2018), the Criminal Chamber of the highest court—composed of ministers Carlos Künsemüller, Haroldo Brito, Manuel Antonio Valderrama, Jorge Dahm, and Leopoldo Llanos—also decreed the acquittal of retired officer Osvaldo González García and former non-commissioned officers Fernando Arancibia Sarmiento and Luis Soto Zamorano, as they did not reach a conviction of their responsibility as accessories after the fact.

During the investigation phase of the case, conducted by the minister on special assignment for human rights violation cases at the San Miguel Court of Appeals, Marianela Cifuentes Alarcón, the following facts were established: "1st That on September 7, 1977, around 01:30 hours, while Humberto Fernando Fernández Trujillo was sleeping in a makeshift dwelling in the La Bandera shantytown, in the La Granja commune, the property was irregularly raided by Lieutenants Luis Hernán Correa Soto and Osvaldo René González García, 2nd Sergeant José Manuel Olave Saavedra—currently deceased—and 1st Corporals Fernando Elías Arancibia Sarmiento and Luis Gilberto Soto Zamorano, all officials of the Carabineros de Chile. 2nd That, immediately thereafter, without any provocation from Humberto Fernández Trujillo, Luis Hernán Correa Soto and José Manuel Olave Saavedra fired upon him. 3rd That, subsequently, instead of reporting the circumstances of the commission of the aforementioned crime, the aforementioned police officers carried out a series of maneuvers to conceal them, both from police and judicial authorities, including altering the crime scene." Regarding the acquittal of the 3 former military personnel, the sentence indicated: "This Court agrees with the first-instance ruling that the collected evidence allows for the verification that there was an alteration of the crime scene through the aforementioned actions of moving the victim's body and concealing ballistic evidence, as well as qualifying such conduct as concealment under the aforementioned Article 17 No. 2; however, there is no concrete evidence in the file to conclude that such actions were carried out by González García, Arancibia Sarmiento, and Soto Zamorano in particular. Indeed, it being undisputed that the accused entered the victim's home, beyond that circumstance, no evidence is found to affirm that, in addition to said action—which the appealed ruling itself does not consider sufficient to qualify as perpetration or complicity—any of them was the one who eliminated the ballistic evidence and moved the victim's body, thereby altering the crime scene. Thus, there are no reasons to rule out that such specific actions—eliminating ballistic evidence and moving the victim's body—may have been executed by Correa Soto and/or Olave Saavedra—the perpetrators of the shots—and/or the group of Carabineros that arrived moments later under the command of Colonel Fontaine—whose arrival is mentioned by both the accused and eyewitnesses." The resolution adds: "That, on the other hand, the appealed ruling, in its reasoning 41°, also justifies the status of accessory after the fact attributed to González García, Arancibia Sarmiento, and Soto Zamorano, in that they stated 'before police and judicial authorities that the victim fired upon police personnel with a 6.35 mm caliber pistol.' Even if these accused had lied regarding how the events that preceded and caused the death of Fernández Trujillo unfolded, this can in no case constitute concealment by actual assistance under Article 17 No. 2 of the Penal Code, because this provision, regarding the conduct of 'concealment' that is relevant here, 'presupposes material conduct, of placing material things in a specific place where they are difficult to find. A simple lie is not concealment, especially if one considers that no one is, in principle, obligated to report a crime' (Etcheberry, Alfredo. El Derecho Penal en la Jurisprudencia, Editorial Jurídica de Chile, 2nd ed., 2005, Vol. II, p. 58)." In relation to the above, as Hernández Basualto explains, citing various authors in his support, the existence of types of self-omission, specifically types of omission of reporting, as would be the case here with Article 105 of the Code of Criminal Procedure in force at the time (or Article 84 currently of the same text, or Article 175 of the Criminal Procedure Code to which the aforementioned author alludes) "seems to oppose that possibility, because such types would express a specific legislative valuation on the matter and would be applied exclusively." "The same author clarifies that, 'It is a different matter if, in addition to omitting the report, positive conduct is carried out intended to conceal the crime or the person responsible, as occurred in the case handled by the Supreme Court against Jorge Pereira and others (1946), in which a police officer not only did not record the crime he became aware of in the logbook, but also instructed a subordinate not to report it' (Hernández, H. 'Article 17. Commentary', in Couso, J., and Hernández, H. (Dir.), Código Penal Comentado, 2011, pp. 421 and 422). Thus, this Court has resolved in Case No. 5235-18 of October 21, 2019, that 'it must be ruled out that the mere omission of reporting that was proven can configure any hypothesis of concealment under Article 17 of the Penal Code, and, based on the above, it should be noted that the ruling does not establish any fact that constitutes 'positive conduct' intended to conceal the crime or the person responsible.' Furthermore, false testimony is sanctioned under its own requirements in Article 206 of the Penal Code in force at the time, if it were provided by a witness in favor of the defendant, conduct which, however, is atypical if carried out by the defendant himself in his own favor, as would have occurred in this case." For the highest court: "(...) thus, in accordance with the provisions of Article 456 bis of the Code of Criminal Procedure, since no conviction has been acquired that in the crime of aggravated homicide of Humberto Fernando Fernández Trujillo, the accused González García, Arancibia Sarmiento, and Soto Zamorano had an intervention as accessories after the fact, they cannot be convicted, and therefore, the appealed sentence must be revoked in this part and, in its place, an acquittal must be issued." The acquittal decision was adopted with the dissenting votes of ministers Dahm and Llanos.

Source: derechoshumanos.udp.cl, October 2, 2020