|
Santiago, fourteenth of September of the year two thousand
five.
Whereas:
The sentence appealed on twenty-ninth day of July of the year
two thousand five, comprised of pages 3758 to 3765, and is
hereby confirmed. That sentence is upheld with dissenting
votes from Judges Tapia, Galvez, Rodriguez Ariztia, Cury,
Kokisch and Ballesteros, who supported revocation of that
ruling, and consequently opposed the requests for deprivation
of immunity, due to the following considerations:
a. That, due to the complexity and volume of case N 2182-98
that encompasses a great number of events, the court record
is organized in several episodes or chapters, for procedural
ease, and certainly does not affect the unity of the case,
which still is one single case;
b. That the events under investigation in this case include
occurrences during the command of Army Commander in Chief
General Augusto Pinochet Ugarte, specifically, the travels
of former Army General Sergio Arellano Stark, to various regions
of the country in September and October 1973, a situation
that gave rise to the deprivation of immunity of Mr. Pinochet
Ugarte, as resolved by the Full Session of the Santiago Court
of Appeals on June 5, 2000 and consequently confirmed by this
Supreme Court on August 8 of the same year;
c. That, subsequently, July 9, 2001, a Bench of the Santiago
Court of Appeals partially and temporarily dismissed Augusto
Pinochet Ugarte, who had been arraigned at that time, and
on appeal, this Supreme Court invalidated that ruling on July
1, 2002, after concluding that the mental illness that afflicted
the accused renders him unfit to stand trial, and that he
is an individual who is procedurally incapacitated from standing
trial. This Court hereby ruled that "the proceedings shall
not continue" against him and ordered his definitive and partial
dismissal from the case. That ruling affects all trials against
him, and is not limited to a section of the episodes or files;
and
d. That due to the definitive dismissal that is founded on
the procedural incapacity that affects the defendant, it would
be judicially unacceptable that a subsequent ruling, in this
same and single court proceeding, make way for the deprivation
of immunity and newly prosecute his penal responsibility.Judge
Kokisch, founded his dissident vote also on article 418 of
the Code of Criminal Procedure, ruling for the definitive
dismissal to conclude the trial and considers the present
proceedings a situation of res judicata, regarding those individuals
affected by the case. Its effect is so conclusive that it
cannot be subject to appeal, as set forth in article 657 of
the Code of Criminal Procedure.
Agreed, with the objections noted above of Judges Rodriguez
Ariztia, Cury, Kokisch, Segura and Ballesteros, with the order
to conduct a psychological examination of the defendant, by
psychiatric experts, in order to determine the subsequent
procedure regarding the individual who has been deprived of
prosecutorial immunity.
Prior to any procedures related to the defendant, the Investigative
Judge shall order the medical examinations here cited.
Agreed,
on this part, with the dissenting votes from the Interim Court
President Mr. Benquis and Justices Galvez, Rodriguez Ariztia,
Oyarzun and Rodriguez Espoz, who were of the opinion not to
order the procedures.
Hereby take note.
Rol
N 3.840-05
.
|
