Court of Appeals TEMUCO
Lorenzo Morales Andrés Cortés, lawyer, residing in the City of Collipulli 43 Cross Street, identity card No. 12403302-0 , to U.S.. Iltma. respectfully say:
That pursuant to the powers vested in me by the State Constitution, Article 21 and related standards, in particular Art. 95 Clause 3 of the Criminal Procedure Code, I hereby lodge my client for CONSTITUTIONAL ACTION UNDER , in Against the Second Chamber of the Honorable Court of Temuco, built on that occasion by Second Chamber of the Chairman Mr. Minister Leopoldo Sagristá Llanos, Mr. Minister Fernando Ortega Carreño and Judicial Prosecutor Mr. Luis Troncoso Lagos , since that decision affects legitimate exercise of personal liberty and personal security of my Luis Humberto Marileo Sponsored Cariqueo defendant in the 1134-2009 rit, ruc: 09009692218-2, lodged in the court a quo of Victoria, calling from and accept it for processing and Finally, take immediate measures it deems necessary to restore the rule of law and ensure its proper protection, giving to some of the protective effect of art.155 of the Criminal Procedure Code, replacing the temporary internment measure hanging over his , all of this because of the findings of fact and law as noted below:
BACKGROUND.
My sponsored Luis Marileo Cariqueo is accused in the case rit 1134-2009, based on an accusation that weighs against him for Terrorist Conspiracy, attempted murder and burning of chattel, where he was arrested months after the event occurred by the figure of 18,314 law art.4 the leniency of a protected witness, where he was arrested On April 13, 2010 while was at the Lyceum Institute for Rural Education "located in the Town of Pailahueque, at about 9:00 am when he was inside a room I call it the class of the Liceo inspector to make it to his office. Arriving there, the inspector was accompanied by two men who carried their guns clearly displayed by his side. One of the men said they had orders to arrest in six types that came, who was removed from the office of inspector and took him to the outside of the Lyceum. At all times he was surrounded and showed him his weapon in a threatening manner. Arriving near the road put him in a white vehicle, inside this was a young woman with her were 4 types. Once the vehicle was launched and began to insult him by asking people from other communities Ercilla. Everybody was in civilian . A man asked for his cell phone and my nephew to tell him that I had not started to threaten and insult him by saying things racist groups. " From there he was transferred to 4 th Victoria Police Station, where he performed the identity check then transported to Victoria Hospital to document my injuries. After that I returned to the police station where he was placed in a cell of 3 x 2 meters. In had 4 people including a woman who was in the car in which I moved from the Lyceum to the Commissioner. While in the dungeon I sat in a chair, his hands cuffed and back. That began to beat him while I wondered names people. With no response from you, one of the subject hit him in the ears with the palms of your hands while , there was obviously dazed and disoriented after each blow, then continued the threats and insults, "Indian conchaetumadre, we're going to dry up in jail" . This treatment continued, beat him in the ears and face after each question, laughed and beat him, my nephew has this hard at least an hour. Luis lost consciousness and direction with each stroke but was replaced to remember their faces. You can describe them as big men and three women, this had white skin, wavy hair and freckles on her face. He says that if you see them again recognize them, they were all in civilian clothes. These serious treatment, says he has not seen or prosecutor or attorney at his place of detention, that is currently under investigation by the Military Prosecutor of Angol, last October we requested a review of precautionary which together with other villagers were denied the court a quo in order to review that decision were deducted respective appeal, raising the background before the Court of Appeals of Temuco, which this twenty October two thousand ten. (crl) Role No. 0900969218-2. -50-842-2010, ruling: "... CERTIFY: That on that date the hearing was to hear appeals by the defense net, appearing to hearing Mrs. Karina Riquelme lawyers, attorney Lorenzo Morales , the legal adviser of the Public Ministry Miguel Contreras, who is delegated the power to appear, with this in mind this Court and attorney Don Hugo Gonzales.
The hearing took effect before the Second Chamber of the Chairman Mr. Minister Leopoldo Sagristá Llanos, Mr. Minister Carreño Fernando Ortega and Judicial Prosecutor Mr. Luis Troncoso Lagos.
The Court, bearing in mind the comments made by the participants in the hearing and by majority vote, for the minor defendant LUIS Marilee Cariqueo , agreed to revoke the decision appealed from October 19 this year, which upheld the internment temporary injunction and therefore leave no effect. Decision that was agreed with the vote against Mr. Minister Fernando Ortega Carreño, who was apparently to confirm the decision appealed and maintain such injunction.
Consequently, being a crime under Law 18,314, and served as provided in Article 19 No. 7, letter e), in conjunction with Article 9 of the Constitution, which requires the unanimously by the Ministers of the Board, the decision is appealed CONFIRMED , keeping the precautionary measure ordered the accused temporary internment ... ", we note that two long months have passed since that event and there have been two hearings in the same case in the city of victory, not proceeding to any debate because both judges have been disqualified, this defense can not articulate the exceptions relating to that the matching principle the Public Prosecutor downgraded behaviors I represented in terms of what the law requires 20,467, and also thinking about the principle of objectivity that we downgrade, but that has not happened yet maintaining the status of temporary admission of my sponsored Luis Marileo Cariqueo, before I conclude this action for relief that according to Article 21 of the Constitution of the Republic in relation to Article 95 of the Code of Criminal Procedure section 3 º by stating: "... However, if the detention has been ordered by court order, the legality may be challenged only by legal process corresponding before court that has given ... "It is true that the defense could have been another way for the implementation and restoration of the right but believes that the spirit of habeas corpus is the constitutional protection mechanism , precautionary and emergency in case the right is undisputed and undoubted nature as I believe is the case, it is also necessary to also indicate that the events described clearly constitute acts that endanger freedom staff, I submit to SS. I. that personal freedom and individual security is not only collected as a law Basic human in the Constitution of the Republic of Chile, but also in major international human rights instruments, such as the International Covenant on Civil and Political Rights, the American Convention on Human Rights or Pact of San José de Costa Rica and other international instruments are incorporated into national law by Article 5 of the Constitution of the State. However, CONSTITUTIONAL ACTION UNDER or HABEAS CORPUS , established in Article 21 of the Constitution of the State, and in clause 3 guarantees: "The same resource, and likewise, may be deducted for any person who illegally suffer any other deprivation, disruption or threat to his right to personal liberty and personal security ...", this further by incorporating the law in force at 20,467 and time of the allegations in which his article 3 º. states: "... If the acts described in Law No. 18,314 or in other laws to be executed by persons below eighteen years of implementing the principle of specialties are Always apply the procedure and reduced sentences provided for in Law No. 20,084, establishing a system of juvenile criminal responsibility ... "as well Law 20,084 and its message are accurate in recognizing the importance and value of international instruments in its provisions (article 2, paragraph two), ordering its implementation," the authorities shall take into consideration all rights and guarantees to which they are recognized in the Constitution, laws, the Convention on the Rights of the Child and other international instruments ratified by Chile that are in force. "posing as one of its objectives set an accountability system for adolescents between 14 and 18, but considering them as subjects of law should be treated with special care, requiring a "special responsibility appropriate to its subject matter of development" which seeks "to consider the adolescent as a subject of law which must be protected in their development and social and achieve targets for prevention crime. " The message stresses the rehabilitating purpose of under eighteen years, and in its wording, Article 20 expressly states that "sanctions and consequences established by this law are intended to establish the liability of adolescents who commit criminal acts of so that the punishment part of a broad educational intervention aimed at full integration partner. ( Santiago appeals court role 728-2010, May 14, 2010 ) plus The Convention on the Rights of the Child considers the placement of children, as it involves deprivation of liberty should be used only as a measure of last resort and for the shortest time. ( Court of Appeals of Santiago Role 31798-2004, November 13. 2004), The breaches mentioned in this resource affect not only mental and physical health, but is violated the self-life personal and social media community generating resentment could also enhance the search for actions individual to express their discomfort. This, far from being a threat to be considered when monitoring the quality of life for children and adults in the community following the conflict which has been a party. With regard to child rearing can not transmit values and principles to children as they are formed in an atmosphere of ambivalence, because on one hand are taught one thing at home or school and everything else is violated predicate, leaving the children in a situation of lack of understanding of social agents are supposed to be protective. While this process may be experienced with the characteristics described in the result can never have on children normal development of their potential. Moreover, considering that the main source of care, protection and responsible for introducing them into their culture, values and norms of society, the family is seriously threatened. Must emphasize that Chile has signed the International Standards Declaration on the Rights of the Child, and in regard to the Community Cacique José Wink is not being met, but on the contrary, they have violated more than one of the rights, know some of them:
1: A child means every human being under 18 years of Dad, except that under the law applicable to him has come of age. None of the children of the community has come of age and is immersed in criminal activities so that they all are the subjects of protection of their rights.
Art N 2: States Parties shall respect the rights set forth in this Convention and ensure its implementation to each child within their jurisdiction without discrimination of any kind, irrespective of race, color, sex, language , religion, political or other opinion, national, ethnic or social origin, economic position, disability, birth or other status of their parents or legal guardians.
States Parties shall take appropriate measures to ensure that the child is protected / a against all forms of discrimination or punishment on the status, activities, expressed opinions or beliefs of their parents or their guardians or relatives.
Art # 5: States Parties shall respect the responsibilities, rights and duties of parents or, where appropriate, members of the extended family or community as provided for by local custom, guardians or others responsible for the child, to provide, in line with the evolving capacities, appropriate direction and guidance for the child of the rights recognized in this Convention.
Art No. 8: States Parties undertake to respect the right of children to preserve their identity, including nationality, name and family relations as recognized by law without unlawful interference.
When a child is illegally deprived of some of the elements of their identity or all States Parties shall render appropriate assistance and protection in order to quickly restore identity.
The Convention is the first human rights treaty (known for chile art. 5, paragraph 2 of the Constitution) that makes explicit reference to indigenous children as subjects and to exercise full rights as individuals or collectively their rights to culture, religion and indigenous language (Article 30). The Committee in its General Comment # 11 from 2009 on indigenous children, recognizing that children, indigenous children and adolescents are in a special situation of violation of their rights.
This is the same state that held a few months ago the first anniversary of the Juvenile Criminal Responsibility Law was a recognition that (after 20 years of signing the Convention) that children in conflict with the law require special treatment since they are children. The law of juvenile criminal responsibility is a special system of justice for young people between 16 and 18 which ensures they are processed by a specialized system that has as its goal the return of children to society, and not punishment.
So things Since there is a threat is imminent, order of the amparo remedy is to "take immediate measures it deems necessary to restore the rule of law and ensure due protection of the affected."
THEREFORE;
We ask U.S.. I, on the basis of the above and to the provisions of Articles 1, 5 and 19 No. 2, 19 No. 7, art. 21 of the Constitution, Supreme Court Decision on Remedy of processing, the International Covenant on Civil and Political Rights, the American Convention on Human Rights or Pact of San José de Costa Rica, and other applicable rules, have filed habeas corpus protection against the second room Lustra Honorable Court, process it and ultimately be brought to the attention of those concerned and to bring this action for defense and U.S.. I immediately take the measures it deems necessary to restore the rule of law and ensure personal freedom and individual security represented Luis Humberto Marileo my giving some of the cautionary Code art.155 Criminal Procedure.
FIRST ADDENDUM: I beg U.S.. I. together have the record of the settlement which was the subject of this action.
SECOND ADDENDUM: U.S. request. I. SS. trades:
- To the members of the second division in order to report on its resolution.
THIRD ADDENDUM: I pray SS. I. bear in mind that this resource tramitare personally because I am a lawyer authorized to practice the profession, residing at 43 Cross Street City de Collipulli.
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