Occupation: United Nations official (CELADE: Latin American Demographic Center) and student at the Universidad Técnica del Estado. (Fisheries) Repressive Organization: No information Date of Detention: October 5, 1973

REPRESSIVE SITUATION

Fernando de la Cruz Olivares Mori, 27 years old, married, a United Nations official, was detained at the Latin American Demographic Center (CELADE) located at the corner of José Miguel Infante and Providencia, in the city of Santiago.

Around 2:00 PM on October 5, 1973, a group of uniformed personnel from the National Navy arrived at the Center under the command of First Lieutenant Jorge Osses Novoa, who stated he was acting in compliance with orders from Commander Vergara.

Eyewitnesses to the detention included Ms. Carmen Miró Gandasegui, the director, and Mr. Jorge Arévalo, an official of CELADE, as well as more than fifty coworkers, all of whom were international United Nations officials.

In her account dated March 11, 1991, Ms. Carmen Miró stated that on October 5, 1973, she encountered a patrol composed of five men armed with submachine guns outside the international organization. The man in charge of the patrol identified himself as a Marine Infantry Lieutenant with the surname Osses.

He was a tall, white man with very good manners. He told her that, in compliance with superior orders, he had to take Fernando de la Cruz Olivares Mori. He added that he would take him to the Ministry of Defense as a detainee to ask him a few questions.

Ms. Miró informed the officer that he could not take an official who was inside an international organization. As the uniformed men persisted in their attitude, Olivares Mori chose to surrender himself to avoid the possibility of the military entering the headquarters violently and taking him by force.

Fernando Olivares went down accompanied by his superiors, Carmen Miró and Juan Carlos Elizaga, the deputy director of CELADE.

Ms. Miró ordered an official to accompany him. The military did not allow him to ride in the same vehicle in which they were taking the detainee, a private pickup truck. Consequently, the official Jorge Arévalo followed them in his vehicle to the Ministry of Defense, where the detainee was taken inside.

Mr. Arévalo entered the Ministry of Defense and was able to speak with the superior who had given the order to detain Olivares Mori, a Commander with the surname Vergara. This officer told Arévalo not to worry, that the detainee would remain at the Ministry of Defense, and that they should ask for him at the Estadio Nacional on Wednesday.

This was the last time Fernando de la Cruz Olivares Mori was seen. All efforts and inquiries made by his family thereafter to determine his whereabouts were fruitless.

JUDICIAL AND/OR ADMINISTRATIVE ACTIONS

On January 18, 1977, the victim's mother, Ms. Juana Mori Chandía, filed a complaint for alleged disappearance before the 6th Criminal Court of Santiago. This was processed under case file No. 95.524.

Previously, a writ of amparo (habeas corpus) had been filed on April 19, 1974, under case file 375-74. On May 31 of the same year, the 1st Chamber of the Santiago Court of Appeals rejected the writ. Another writ of amparo, filed on November 28, 1974, which was reviewed by the Fourth Chamber of the Court of Appeals under case file 835-74, met the same fate.

The substitute judge of the Sixth Criminal Court, Manuel Silva Ibáñez, and the acting judge, Cristina Palma Espinoza, processed the requests made by the complainant with extreme slowness.

Thus, two months after the complaint was filed, the Court had not ordered any action, except for the standard order to investigate. All official letters had to be reiterated by the complainant.

Only on March 17, 1977, did the Court order that official letters be sent to the Director of the International Red Cross and to the SENDET. With the negative response from the Investigations police, which limited itself to interrogating the complainant, and from the International Red Cross, which informed the Court of the confidential nature of its reports and requested that, in the future, it address government agencies, the Court ceased the investigation.

The complainant had to reiterate for a second time the request that the official letters requested three months earlier be processed, requesting that letters also be sent to the Directorate of Foreigners and International Police, the Legal Medical Institute, and Interpol.

As the SENDET did not respond to the official letters, the Court had to reiterate them. With negative responses to all letters sent and without ordering any action on its own part, the judge, on July 29, 1977, decreed a temporary dismissal on the grounds that "the existence of a crime had not been proven."

Despite the contrary opinion of the Prosecutor of the Court of Appeals, who in his report was in favor of "investigating the actions or participation of the persons indicated in the complaint, examining what happened in the writ of amparo, and interrogating Carmen Miró, who resides in Mexico," and adding that the ordinary justice system was not competent and therefore the dismissal should be set aside and the files sent to the Military Justice system, the Santiago Court of Appeals resolved to approve the dismissal, ordering the case to be archived on September 9, 1977.

In January 1978, the sponsoring lawyer requested access to the summary proceedings.

Several other steps were taken, including a letter sent by CELADE officials on November 23, 1973, to the Secretary-General of the United Nations, requesting his intervention with the Chilean authorities to determine the whereabouts of Fernando de la Cruz Olivares Mori.

The anthropometric data of Fernando de la Cruz Olivares Mori were attached to case 4449-AF of the 22nd Criminal Court of Santiago, regarding the crime of illegal burial in Patio 29 of the General Cemetery of unidentified persons who died between September and December 1973.

The investigating judge of the case ordered the excavation of 108 graves in September 1991. From there, 125 bodies were exhumed and sent to the Legal Medical Institute. Currently (late 1992), the expert identification reports are pending.

Source: Vicariate of Solidarity

The Ninth Chamber of the appellate court ordered the Treasury to pay compensation of $100,000,000 for moral damages to the spouse of Fernando de la Cruz Olivares Mori, an official of the Latin American Demographic Center (Celade), which is dependent on the United Nations.

He was detained on October 5, 1973, at the headquarters of the international organization, located on Huelén Street, by a military patrol that took him to the Ministry of Defense, from where his trail was lost.

In a split decision (case file 15.081-2021), the Ninth Chamber of the appellate court—composed of Minister Graciela Gómez, Minister Tomás Gray, and lawyer (i) Eduardo Jequier—rejected the exceptions of compensatory reparation and statute of limitations invoked by the Treasury, after establishing that an error of law was committed by accepting the exception of res judicata due to the existence of a criminal sentence in which the perpetrator of the crime of qualified kidnapping was ordered to pay compensation for damages.

"That, consequently, the duty of all State bodies to respect and promote the essential rights that emanate from human nature, guaranteed by the Political Constitution of the Republic as well as by international treaties ratified by Chile and which are in force, obliges compliance with such norms.

Therefore, when the right to comprehensive reparation invoked and based on such provisions is challenged, by application of the hermeneutic principle of favorability, the interpretation that is most favorable to the validity of Human Rights must be chosen and applied, so that the court must apply its internal regulations in accordance and in harmony with the aforementioned international norms, thus fulfilling the obligation to perform adequate control of conventionality, interpreting and applying national norms that could affect human rights in accordance with the international obligations contracted in the matter, without any norm of internal law allowing any distinction that goes against the fulfillment of such responsibility," the ruling maintains.

The resolution adds: "That it is also necessary to take into account that it is a general principle of international law that States are obliged to fulfill treaties in good faith, so the State cannot rely on the impossibility of fulfilling its international obligations because its internal legislation prevents it (Article 27 of the Vienna Convention on the Law of Treaties).

Therefore, given that the claim invoked is based on facts constituting crimes against humanity, once these have been so declared, it is appropriate to repair the victims, whether direct or indirect, in addition to guaranteeing their non-repetition, requirements that are met in the case under review."

"That consequently," it continues, "having performed the control of conventionality that corresponds to this court, as a member of the State, it is evident that the exception of res judicata in relation to the civil action that seeks full reparation for damages derived from the execution of this category of illicit acts could not have been invoked by the State of Chile, for not respecting the mandatory provisions inherent to International Human Rights Law.

Therefore, such a defense based on Article 177 of the Code of Civil Procedure should not have been accepted, and the cited international regulations must prevail, which impose on the State the duty to fully repair the serious human rights violations demanded by the plaintiff in the case."

For the appellate court, in this instance: "(...) in summary and reproducing the reasoning already expressed in various rulings of the Supreme Court, such as the one cited above, and those in case files No. 36319-19 and No. 144348-22, 'the validity and legality of previous rulings that declare the statute of limitations for the compensation action against the State of Chile are not questioned here, but it is only recognized that the exception of res judicata derived from those pronouncements established in the cited Article 177, an internal norm of a merely legal nature, must yield to the right to comprehensive reparation derived from the international treaties on human rights already referred to, which by provision of the second paragraph of Article 5 of our Fundamental Charter have a superior hierarchy'."

Likewise, the ruling states: "That the foundations of the Inter-American Court of Human Rights ruling cited above consolidate the conviction of this court to reject the defenses that have been detailed above, since they have been argued in contravention of the State's own actions, which not only maintains that it repairs obligations whose extinction by statute of limitations it postulates, but recognizes their validity before international jurisdictional instances, stating that the jurisprudential line developed and which recognizes the right to reparation without temporal objection for the damage caused by crimes against humanity is robust and consolidated. Faced with such conduct, it is useful to remember the theory of own acts, recognized by doctrine and accepted for some time by the jurisprudence of the Supreme Court (rulings No. 1696-2005 and No. 9.430-2009), which finds support in the principle embodied in the Latin phrase venire contra factum proprium non valet and is linked to the principle of good faith, in an ethical sense or good faith loyalty, consisting of the belief and trust that a subject has that a declaration will produce in a specific case the same effects that it ordinarily and normally has produced in equal cases."

"The effect produced by the aforementioned theory is, fundamentally, that a person cannot subsequently maintain, for reasons of their own convenience, a legal position different from the one they had during the granting and execution of the act, for having changed the circumstances and, ultimately, if they do so, the legal consequences of the first conduct must prevail, and the claim invoked, supported by a new thesis or idea, must be rejected for involving a change of conduct that is not accepted.

In this sense, the legal position that the defendant has presented in the trial seeks to assert a defense in contradiction with its conduct displayed in international jurisdictional instances already cited, which conflicts with good faith," the resolution explains.

For the Santiago Court of Appeals: "(...) once the above has been settled, and for the purposes of determining the claimed damage, it is convenient to take into account that moral damage consists of the injury or grievance, carried out culpably or maliciously, to a subjective right of an immaterial nature and inherent to the person and which is attributable to another.

This particularity means that the same rules used for the determination of material damages cannot be applied at the moment of specifying its existence and entity, because in such an event it is an external and easily perceptible alteration, which does not happen in the subjective plane."

"This impairment," it deepens, "due to its purely subjective nature, whose foundation stems from the very affective nature of the human being, is not of a purely economic order and does not imply, consequently, a real deterioration in the assets of the person who suffers it, susceptible to proof and direct determination, so it is entirely left to the prudent regulation of the instance judges, taking into consideration aspects such as the circumstances in which it occurred and all those that influenced the intensity of the pain and suffering experienced (SCS Case File No. 17842-2019 of October 11, 2019)."

"That in this understanding, having proven the reported facts, the context in which they were perpetrated and the culpable and punishable participation by law of the State agents who intervened, according to the merit of the sentence issued in the criminal case instructed for that purpose, the effectiveness of the suffering of moral damage arises, so the State must repair that detriment, due to the act of its agents, whose determination concerns the prudence of the court, and it could not be otherwise because materially it is difficult, if not impossible, to measure with exactitude the intensity of the suffering that the kidnapping and subsequent disappearance of her spouse, Mr. Fernando de la Cruz Olivares Mori, caused to Ms. Ágave Díaz Fernández, an event that occurred on October 5, 1973, and whose effects extend to this day," it concludes.

Therefore, it is resolved that

"I.- The sentence of September 23, 2019, issued by the Fifth Civil Court of Santiago in case C-16531-2017, titled 'Díaz with the State of Chile', which in its decision I.- accepted the exception of res judicata opposed by the defendant party, is revoked, and in its place it is declared that it is rejected.

II.- The exceptions of compensatory reparation and statute of limitations invoked by the State of Chile are rejected. III.- The civil lawsuit for compensation for damages, filed by Mr. Adil Brkovic Almonte, on behalf of Ms.

Ágave Díaz Fernández, is granted, and the State of Chile is ordered to pay her the sum of $100,000,000 (one hundred million pesos) for moral damages, plus adjustments from the time the sentence is final until its effective payment and interest from the time it is in default, without costs for having had a plausible reason to litigate."

Decision agreed upon with the dissenting vote of Minister Gray, who was in favor of maintaining the sentence that accepted the exception of res judicata.

Source: pjud.cl 11/21/2022 Date: 11-21-2022

Family of political execution victim requested new expert reports to confirm his identity

Miguel Olivares Mori hopes to confirm that his relative's remains have been found.

This Thursday, three other identifications of remains from Patio 29 were made known. The family of Fernando Olivares Mori, the former official of the Latin American Demographic Center (Celade) who was a victim of repression during the dictatorship, requested a new review of his bones after it was learned this Thursday that his remains had been identified.

"The Legal Medical Service determined that a part of Fernando's body is not his, but corresponds to Francisco Zúñiga. We, as a family, not satisfied with Fernando's cranial and dental parts, requested the magistrate to perform a new expert report," said Miguel Olivares, brother of the deceased.

Olivares Mori's remains were identified as those of Francisco Arnaldo Zúñiga Aguilera in 1998, while the family hopes that the new checks requested from Judge Alejandro Solís will allow them to determine who was buried in his place.

"Yesterday (Thursday) we went to the cemetery together with the minister to carry out the exhumation. Subsequently, the corresponding DNA analysis will be performed on the skull part and we will have complete certainty of who is who," he affirmed.

Fernando de la Cruz Olivares Mori was detained by agents of the dictatorship on October 5, 1973, when he was 27 years old. After more than 17 years, his body was found in the early 1990s in Patio 29 of the General Cemetery.

In this same process, the true identity of the remains of Sergio Fernando Fernández Pavez was established, whose bones had been erroneously identified on October 27, 1994, as those of José Freire Medina.

Other cases where remains were identified were those of Carlos Fonseca Faúndez and Jorge Manuel Pavez Enríquez.

In addition, it was reported that there are more than 100 expert reports that have not achieved definitive results and that on April 27, the bone samples of the pieces that have been used in the DNA extraction process will begin to be delivered.

Source: cooperativa.cl 4/02/2010 Date: 04-02-2010

Case of forcibly disappeared person that inspired the documentary "Fernando ha vuelto" was misidentified

The identification of Fernando De la Cruz Olivares Mori, who inspired the work by Silvio Caiozzi, turned out to be wrong. The remains belong to Francisco Arnaldo Zúñiga Olivera, as established by the Legal Medical Service.

The errors in the identification of the forcibly disappeared persons buried in Patio 29 of the General Cemetery, which were uncovered in 2006, had a new and painful chapter this Thursday, when a mistake was established in the case of Fernando De la Cruz Olivares Mori, who inspired the documentary "Fernando ha vuelto" (Fernando has returned).

More than a hundred victims of Augusto Pinochet's dictatorship were misidentified, and since the case broke out, a thorough investigation was initiated within the Legal Medical Service.

Among the erroneous cases is that of Olivares Mori, who inspired the work that Silvio Caiozzi premiered in 1998, and which won international awards in Havana and Uruguay.

The remains delivered to the family belong to Francisco Arnaldo Zúñiga Olivera, according to the SML, which continues to analyze the cases and deliver the definitive identities.

Source: adnradio.cl 4/01/2010 Date: 04-01-2010

Behind the iron cross (BOOK)

Patio 29 used to be used for the burial of the indigent, psychiatric patients, and people who died without being identified (NN). However, between September 1973 and January 1974, its graves were used to hide victims of repression as NN.

Javiera Bustamante and Stephan Ruderer reconstruct the painful history of the place, using testimonies from the families of the forcibly disappeared, letters, documents, and other sources. The book also accounts for the arduous process of identification and delivery of the bodies, as well as the irregularities that characterized these proceedings.

The powerful photographs that illustrate the volume were taken by visual artist Mara Daruich. Bustamante, Javiera; Ruderer, Stephan

Source: pjud.cl 12/19/2023

Supreme Court orders the Treasury to compensate spouse of forcibly disappeared Celade official

In a unanimous ruling, the Second Chamber of the highest court rejected the appeals for cassation filed against the sentence that ordered the Treasury to pay compensation of $100,000,000 for moral damages to the spouse of the Latin American Demographic Center (Celade) official, Fernando de la Cruz Olivares Mori, who was detained by Navy personnel on October 5, 1973.

Since that date, his whereabouts and fate have been unknown.

The Supreme Court rejected the appeals for cassation in form and substance filed against the sentence that ordered the Treasury to pay compensation of $100,000,000 for moral damages to the spouse of the Latin American Demographic Center (Celade) official, Fernando de la Cruz Olivares Mori, who was detained by Navy personnel on October 5, 1973.

Since that date, his whereabouts and fate have been unknown.

In a unanimous ruling (case file 162.278-2022), the Second Chamber of the highest court—composed of ministers Haroldo Brito, Manuel Antonio Valderrama, Jorge Dahm, Leopoldo Llanos, and minister María Teresa Letelier—ruled out error in the challenged sentence, issued by the Santiago Court of Appeals, which rejected the exception of res judicata opposed by the Treasury and, consequently, the exceptions of compensatory reparation and statute of limitations, thus granting the civil lawsuit for compensation for damages.

"That the existence of all the situations referred to above forces us to consider whether, in the present case, the duty to grant comprehensive reparation for human rights violations contemplated in Article 63.1 of the American Convention on Human Rights prevents or does not prevent the application of the legal rule that provides for the exception of res judicata," the ruling states.

The resolution adds that: "However, for such a determination it is not possible to resort solely to the regulations of the Convention. Consideration must also be given to the interpretation that the Inter-American Court of Human Rights has made of such provisions, since the binding efficacy of its interpretations derives from the sovereign decision of the State of Chile to recognize 'unconditionally' as 'obligatory as a matter of law' its sentences, regarding the application of the Convention, but also its interpretation, as can be inferred from Article 62 of the Convention and confirmed by the declaration that accompanies the respective instrument of ratification, approved by the National Congress, as stated in official letter No. 458 dated August 14, 1990, of the Honorable Senate and which is accounted for by Decree No. 873 of the Ministry of Foreign Affairs, by which it 'Approves the American Convention on Human Rights, called the Pact of San José, Costa Rica'."

"That, therefore, it is essential then to keep in mind the interpretation that the Inter-American Court has made of Article 63.1 of the Convention, which, in a recent case, in which it precisely declared the international responsibility of the State of Chile for an issue identical to the lawsuit in the case, established that, consequently with the jurisprudential change recognized by this Supreme Court in order not to declare the civil statute of limitations for actions seeking reparations for moral damages caused by human rights violations, 'in this type of case the institute of res judicata should not constitute an obstacle for the victims of the present case—or persons who are in analogous situations—to finally access the reparations that may correspond to them through judicial means' (Case of Órdenes Guerra and Others vs. Chile, dated November 29, 2018 (Merits, Reparations and Costs) para. 114)," it adds.

"So that, understood in this way, Article 63.1 of the Convention not only imposes on this Court the duty to refrain from declaring such actions time-barred; but also the obligation to guarantee that the rule of Article 177 of the Code of Civil Procedure does not again represent an obstacle or a disproportionate restriction on the possibility of obtaining reparation for the consequences of state actions that have configured the violation of the rights whose protection is claimed," the ruling affirms.

For the Criminal Chamber: "(...) such a conclusion is also consistent with the provisions of Article 2 of the same American Convention, insofar as it provides that the State has committed itself to adopt, in accordance with its constitutional procedures and the provisions of the Convention itself, the legislative 'or other character' measures that are necessary to make effective the rights and freedoms that it recognizes."

"The foregoing," it continues, "agrees equally with the provisions of Articles 26 and 27 of the Vienna Convention on the Law of Treaties, insofar as they establish respectively that 'Every treaty in force is binding upon the parties and must be performed by them in good faith,' and that 'A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty'; and with the provisions of Article 5, paragraph 2, of the Political Constitution of the Republic; all of which allows us to conclude that in the case under study, the appellate court should not have confirmed the application of Article 177 of the Code of Civil Procedure."

Likewise, the ruling states: "That, in accordance with this reasoning and, also in accordance with the duty of all State bodies to respect and promote the essential rights that emanate from human nature, guaranteed by the Political Constitution of the Republic, as well as by international treaties ratified by Chile and which are in force; the State must comply with human rights norms and, by implicitly failing to do so after the request, when such principle of favorability that protects the affected person is challenged by any means, the court must apply internal law, in accordance and in harmony with said international human rights norms, thus fulfilling the obligation to perform adequate control of Conventionality, interpreting and applying national norms that could affect human rights in accordance with the international obligations contracted in the matter, without any norm of internal law allowing any distinction that goes against the fulfillment of such responsibility."

"That, to decide otherwise," it deepens, "would imply not only invoking provisions of internal Law to justify the failure to fulfill the duty to grant comprehensive reparation imposed by an international human rights treaty ratified and in force; but also—and even more seriously—it would mean compromising once again the international responsibility of the State, by depriving the appellants, for the second time, of the right to effective judicial protection which, under the interpretation of the Inter-American Court, includes the state obligation to guarantee an effective judicial remedy against acts that violate human and fundamental rights; an obligation that 'is not reduced simply to the mere existence of courts or formal procedures or even to the possibility of resorting to the courts. Rather, the State has the duty to adopt positive measures to ensure that the remedies it provides through the judicial system are "truly effective to establish whether or not there has been a violation of human rights and to provide reparation"' (Case of the Kichwa Indigenous People of Sarayaku vs. Ecuador. Judgment of June 27, 2012 (merits and reparations), para. 261; and already before in the Case of the Saramaka People vs. Suriname, Preliminary Objections, Merits, Reparations and Costs, para. 177)."

"Thus, what was expressed above could not have happened in this case, because in the first trial the lawsuit was rejected for having considered the reparation action time-barred and, in the second—whose second-instance decision is challenged by this means—the lawsuit was also rejected for having recognized the exception of res judicata to the Treasury, without in either of the two trials having managed to establish the existence or not of a human rights violation, with the consequent impossibility of accessing the comprehensive reparation that might have been appropriate," the Supreme Court highlights.

"That, finally," it continues, "based on what has been reasoned, it is also not possible to lose sight of the fact that, in the matter under study, the claim of the relatives of victims of serious human rights violations, who demand from the State reparation for the damage caused by its agents, is confronted with the claim of the State itself, which claims for itself the values that underpin res judicata, that is: certainty, legal security, and social peace; forgetting that the guiding principle that should prevail in this matter, contained in the third paragraph of Article 1 of the Political Constitution of the Republic, is that 'The State is at the service of the human person,' and not the other way around; and that, on the other hand, there can be no certainty, legal security, or social peace if, with its decisions, the State fails to fulfill the international commitment and the constitutional duty to respect and ensure the rights that emanate from human nature, protected by ratified and in force international treaties, to which it itself voluntarily and sovereignly bound itself."

"That the importance of the reasoning carried out translates into the fact that they allow us to assert that, by applying the control of conventionality, the irrelevance of any exception of res judicata in relation to the civil action that seeks full reparation for damages derived from the execution of this category of illicit acts is unequivocally confirmed, for not respecting the mandatory provisions inherent to International Human Rights Law," the ruling concludes.

Therefore, it is resolved that: "the appeals for cassation in form and substance, filed by the lawyer of the State Defense Council, against the sentence of November 18, 2022, issued by the Santiago Court of Appeals, Case File 15.081-2019, are rejected, which, consequently, is not void."

Source: pjud.cl 12/19/2023