The Supreme Court on Wednesday, June 1, the amparo appeal filed by the defense and ordered the immediate release of Nicolas Javier Lopez Fernandezconvicted as the author of two completed crimes of sexual abuse. Illicit acts committed in the district of Providencia, Metropolitan Region, in 2015 and 2016, respectively.
In a divided ruling (case number 17.252-2022), the Second Chamber of the highest court –composed of the ministers Haroldo Brito, Manuel Antonio Valderrama, Jorge Dahm, Leopoldo Llanos and the lawyer (i) Pía Tavolari– considered that there are no new precedents that merit preventive detention of the protected person.
“That in the hearing of April 26 of the current year, the Oral Criminal Trial Court of Viña del Mar rejected the request to modify the precautionary regime based on the fact that ‘the personal precautionary measures that affect the convicted person, Mr. Nicolás López , guarantee the purposes of the procedure, the fact that he has been convicted of two of the crimes for which he was accused, regardless of a change in circumstances that necessarily increases the need for caution of the aforementioned convicted person, on the contrary, what has been traditionally and repeatedly maintained by the International Court of Human Rights, that preventive detention cannot be constituted as an anticipated sentence, and in this sense, regardless of the fact that the Court has not yet entered the phase of analyzing the arguments presented by all the litigants in relation to to his petitions, regarding the individualization of his sentence, independently, even when the Court took into consideration arguments delivered by the Prosecutor, even decided to order an effective sentence, which has not yet been decided, even in that case, preventive detention could not be built or erected as a kind of anticipated sanction…’ To then add that the accused ‘he has appeared at all the hearings of the procedure, he has appeared at all the hearings, even when they are remote, and the interveners have not alleged any breach of the injunctions, which would make it necessary to aggravate them, in that sense ‘”reproduce the error.
The resolution adds: “That, later, at the hearing of May 20, to decree the preventive detention of the protected López Fernández and to accept the requirements of article 140 of the Code of Criminal Procedure, especially the one contemplated in letter c) and establishing that there were new records, the same court stated that it took into account ‘the seriousness of the sentence assigned by law, these are two serious crimes in the abstract, because they have been assigned a sentence of three years and one day to five years, and in this case there is also the circumstance of the crime of violating article 361 number one of the Penal Code, that is, using force and intimidation to commit the crimes. That is to say, the seriousness of the facts and of the penalty assigned by law is an issue that is not under discussion. Second, the effective sentence that was imposed is a sentence that does not allow serving in freedom because it exceeds the five-year framework established by Law 18,216, therefore, the sentence must be served in a penitentiary as established by the law.
It was also considered by the court that these are different victims, and therefore there is a plurality of people affected and injury to the legal right protected by the legislator, which is a very important legal right that constitutes freedom and sexual indemnity. of the victims, therefore, in the opinion of the court, the objective requirements concur for the purposes of ordering preventive detention.’
It adds that ‘Regarding the arguments of the defense, it is true that at the verdict hearing on April 26, 2022, the court denied grounds for preventive detention and it is also true that the case was put on that occasion, that eventually the ruling could impose an effective penalty. However, it is no less true that today we have a composition of the Court that is different, and it is also an analysis regarding different procedural stages. A verdict only has the decision of acquittal or conviction, in addition to giving in a generic way what are the grounds that serve for the Court’s decision, which in this case was conviction, regarding two crimes and acquittal regarding many others.
While the sentence is a different analysis. The ruling established several facts that, in the Court’s opinion, must be weighed in order to resolve this request for preventive detention. One of these facts is that a pattern of abusive behavior was established on the part of the accused, and not only with the two victims who, ultimately, were considered to meet the legal requirements for the configuration of the crime of sexual abuse, but also that pattern – and the ruling establishes it – affected other people.
Also to be considered is the matter of collaboration, which was something that the defense used throughout the trial and also in the sentencing hearing, which was ruled out by the Court. It is about objective antecedents and finally it is true what the accusers say that there is a third fact that is the one that affected the initial BCM victim, which only could not be punished because at that time it was atypical, it was not opposable, but rather it was only in 2019. Therefore, the reasoning of the ruling is not the same as in the verdict hearing, and the social report that accompanies the defense obviously does not change the discussion because it should focus on the hypotheses or the causes of article 140 of the Code of Criminal Procedure.
As for the fact that the accused has appeared at the acts of the procedure, this is true, he was present at all the hearings of the oral trial, but in reality that is his duty, that is, if he had not presented to any of them what would have happened is an arrest warrant. He has also appeared voluntarily today, but it is also his duty. We are not talking about a higher standard than what is ordinarily required in oral trials in our country and therefore, there is no different analysis regarding this defendant than others’”.
For the Criminal Chamber: “(…) taking into account the preceding reasoning, it is clear that the resolution challenged by this amparo appeal that ordered the preventive detention of the protected party, had as grounds the same background that was taken into consideration to deny the precautionary measure indicated in the hearing held on April 26, 2022, since on that occasion a conviction had already been issued regarding two crimes of sexual abuse, provided for and punished in article 366, in relation to articles 361 N 1 and 366 ter, all of the Criminal Code, with respect to two victims, having made express reference to the circumstances of risking an effective penalty and the appearance of the accused at all the investigation proceedings and at the hearings, ruling out the concurrence of new circumstances that could justify the imposition of pre-trial detention.
The ruling of the highest court recalls: “That article 144 of the Code of Criminal Procedure requires the concurrence of new records to decree preventive detention that was previously rejected, which, according to the reasoning in the preceding reason, does not occur in this case, because only the resolution that decreed it makes an apparent foundation on the concurrence of such new circumstances, since the resolution that ruled out its imposition refers to the same situations as the decision that orders it, those that were dictated with a little more than twenty days of difference, varying between both occasions only the fact that the final sentence had already been issued and communicated, but, in substance, the situation did not differ, since the risk of imposing an effective sentence and the appearance of the accused, had already been weighted as insufficient to justify the imposition of preventive detention, so that in the present case there has been no due examination of the debated, taking into consideration that the lack of justification for any of them makes the deprivation of liberty that emanates from it illegal.”
“That everything that has been reasoned clearly demonstrates that in the case there has been a manifest affectation of the personal liberty of the appellant by depriving him of it by means of a resolution that is devoid of any foundation, in terms of the existence of new antecedents that justify it, which is sufficient merit to accept the constitutional action attempted in these antecedents”he concludes.
Decision adopted with the vote against Minister Valderrama, who considered that there was no arbitrary action in decreeing preventive detention.
VIA: Power of attorney