Gary Nelson Olmos Guzmán, married, father of three, merchant, and former leader of the Supply and Price Control Board (JAP) of Población La Bandera, was detained by 4 plainclothes agents of the Military Intelligence Service (SIM) on August 24, 1974.

The agents arrived at the victim's home on August 23 at 11:00 p.m. and, not finding him there, decided to remain in the house to wait for him, forcing his spouse to stay on the premises. Two of the individuals remained there until the following day, when they threatened and attempted to strike the young Leonardo Parraguez, only 12 years old and a nephew of Gary Olmos.

Under this pressure, the boy indicated that his uncle was at a relative's house in the same Población La Bandera. The SIM agents arrived at the address on Calle Aviadores 540 in that neighborhood at 12:30 p.m., where the victim's mother-in-law lived, and took him away as a detainee.

They placed him in a green FORD pickup truck and drove him to an unknown destination. Upon their departure, the victim was seen inside the vehicle by an aunt, Mrs. Herminia Gallardo, who was on the street; looking through the canvas cover at the back of the truck, she saw the victim along with other people, including a blonde woman with a pale complexion.

During the agents' stay at the victim's home, his spouse, Hilda Muñoz, was able to determine that there were women working with them and that one of the subjects belonged to the Air Force, based on conversations held between the captors.

Previously, the victim had been detained in September 1973, following the Military Coup, because he was a leader of the JAP in his neighborhood. Three days later, on Tuesday, August 27, 1974, the agents appeared again at the address on Calle Aviadores 540; Mrs.

Avelina Aguilera was able to notice that they had left the victim in the vehicle. The subjects stole 18 pairs of shoes that Gary Olmos had for sale, as well as various documents, from the house.

Subsequently, on March 31, 1975, the victim's spouse encountered two of her husband's captors in Población La Bandera. On that occasion, she demanded they tell her where the victim was; one of them indicated that her spouse had been transferred to the Puchuncaví Prisoner Camp, or that he might still be held incommunicado.

The agents were traveling in a red pickup truck, open at the back, with an inscription on the front that read "ENTEL-CHILE." The vehicle's license plate was FM-965 from Las Condes.

In July 1975, the capital's newspaper La Segunda reproduced a report from the apocryphal newspaper O'Día of Curitiba, Brazil, which featured a list of names of Chileans killed in alleged clashes with the Argentine police in the province of Salta; Gary Olmos's name was among them.

All the people on the list had been detained by Chilean security agencies and remained in the status of forcibly disappeared. The information reproduced by the Santiago evening paper was so false that the Ministry of Foreign Affairs itself stated it had no records to verify it, and similarly noted that the Argentine government had not verified the veracity of the report either.

Since the date of his detention by agents of the Military Intelligence Service, Gary Olmos Guzmán has remained in the status of forcibly disappeared.

JUDICIAL AND/OR ADMINISTRATIVE ACTIONS

On September 2, 1974, Mrs. Hilda Muñoz filed a Writ of Amparo (Habeas Corpus) on behalf of her spouse, Gary Olmos, before the Santiago Court of Appeals, which was registered under No. 1.035-74.

On September 25, 1974, the Minister of the Interior, Army General Raúl Benavides, reported regarding the victim that he was not being held by order of his department or any administrative authority. The Ministry of Defense responded to the same effect on November 21, 1974.

Brigadier General Sergio Arellano Stark, Chief of the State of Siege Zone of the Santiago Province, informed the Court that Gary Nelson was not being held or prosecuted by agencies or tribunals under his command. The Air Force Command provided a similar response.

Based on the information provided by the aforementioned institutions, the Court resolved to dismiss the amparo requested on behalf of the victim, ordering the records to be sent to the 4th Criminal Court of Santiago.

In that court, a summary proceeding for the alleged disappearance of Gary Olmos was initiated, registered under No. 9.140, on December 18, 1974. That same day, the spouse filed a complaint for the kidnapping of the victim before the judge.

Regarding the license plate of the vehicle with the ENTEL-CHILE logo on the front, the General Manager of said company informed the judge on April 17, 1975, that in the entity's vehicle registry, "there is no pickup truck or any other vehicle that possesses the license plate FM-965 from Las Condes."

The National Executive Secretary of Detainees informed the Court that it had no records regarding the victim; the official letter is dated February 18, 1976. The Legal Medical Institute reported that it had no record of the victim's admission.

On April 21, 1976, the summary proceeding was declared closed and, noting that the existence of a crime had not been proven, the case was temporarily dismissed. On January 12, 1979, a request was filed to reopen the summary, arguing that the investigation was not exhausted, as there were a series of pending investigative steps.

The following day, the judge accepted the request from the victim's family.

On June 5, 1979, the Municipality of Las Condes sent an official letter indicating that the aforementioned license plate belonged to a Chevrolet pickup truck owned by the DINA, with an address at Marcoleta No. 90 in Santiago.

When consulted by the judge, the CNI responded that it could not provide information because the vehicle was seen on a date when that agency did not exist. Subsequently, it stated that it did not possess records regarding the agents who occupied the vehicle under investigation.

On November 12, 1979, Mrs. Julia Guzmán filed a criminal complaint for the crime of aggravated kidnapping of her son, Gary Olmos, against the Military Intelligence Service (SIM). The complaint was joined to the case processed under file No. 9.140.

On February 28, 1980, the summary was declared closed as, according to the judge, there were no pending investigative steps. On March 14, 1980, the temporary dismissal of the case was decreed, because "the perpetration of the crime that gave rise to the formation of the process is not fully justified."

On June 27, 1980, after an appeal was filed before the President Aguirre Cerda Court of Appeals, that Court considered that the investigation was not exhausted, and therefore returned the case to the summary stage, sending the files back to the 4th Criminal Court so that the investigation could proceed in accordance with certain investigative steps decreed by the Court.

On October 31, 1980, the then-Minister of the Interior, Sergio Fernández F., informed the judge that it was not possible to disclose the names of the agents who occupied the red Chevrolet pickup truck in 1974, because no vehicle with those characteristics appeared as transferred in the CNI records, so it could have been sold before the transfer or it never belonged to the DINA.

The Minister stated this despite the report from the Municipality of Las Condes indicating that the owner of the vehicle was the DINA.

On December 31, 1980, the summary was declared closed again and, on January 12, 1981, the case was temporarily dismissed as the commission of a crime had not been established.

The case file contains the report of the Court Prosecutor approving the consulted resolution.

Source: Vicariate of Solidarity

In a unanimous ruling, the Second Chamber confirmed the first-instance resolution that sentenced Pedro Espinoza Bravo and Miguel Krassnoff Martchenko to 10 years in prison as authors of the crime of aggravated kidnapping of Gary Nelson Olmos Guzmán.

The Supreme Court accepted the appeal in cassation filed by the Human Rights Program of the Ministry of Justice and, in a replacement sentence, convicted two agents of the dissolved National Intelligence Directorate (DINA) for their responsibility in the crime of aggravated kidnapping of Gary Nelson Olmos Guzmán.

This crime was committed starting on August 24, 1974, in the commune of La Cisterna. The victim was taken to the Cuatro Álamos detention center, where he was kept illegally deprived of liberty, with his whereabouts and fate unknown since then.

In a unanimous ruling (case file 44.909-2021), the Second Chamber of the highest court—composed of ministers Haroldo Brito, Manuel Antonio Valderrama, Jorge Dahm, Leopoldo Llanos, and minister María Teresa Letelier—established an error of law in the challenged sentence, issued by the San Miguel Court of Appeals, for accepting the "half-prescription" (partial statute of limitations) and reducing the sentence to 7 years in prison.

Therefore, it reinstated the first-instance resolution that sentenced Pedro Octavio Espinoza Bravo and Miguel Krassnoff Martchenko to 10 years in prison as authors of a crime against humanity.

"That, in this regard, it is convenient to keep in mind that in this case we are facing an act that was classified as constituting a crime against humanity, a concept that, with the passage of time, has given rise to norms of customary law, that is, to general principles of law, independently of their consecration in international treaties specific to the subject.

Thus, then, they are seen as prohibited conduct in absolute terms, they constitute imperative norms or jus cogens and, of course, are mandatory for all of humanity, corresponding to norms of general international law, inexcusable and binding, which cannot be derogated except by a norm of the same entity," the ruling maintains.

The resolution adds: "In the same sense, it must be kept in mind that by Decree Law No. 3, of September 11, 1973, a state of siege was established due to 'internal commotion,' a concept that is subsequently fixed by Decree Law No. 5, of September 12, 1973, and in this it is indicated that the state of siege due to internal commotion must be understood as 'State or Time of War' for the application of penalties and all other effects; that these broad effects also encompass the circumstances of exemption, mitigation, aggravation, and those of the extinction of responsibility; that this state was maintained until September 11, 1974, when Decree Law No. 641 was issued, which deemed it unnecessary to maintain the declaration of internal war, indicating that the entire territory of the Republic was in a State of Siege, in a degree of internal defense, for a period of six months, a period that was renewed for another six months by Decree Law No. 1.181, of September 10, 1975, which declared that the country was in a 'state of siege, in a degree of internal security'; that, consequently, the State or Time of War was in effect at least until September 10, 1975, a date that makes the 1949 Geneva Conventions applicable, ratified by Chile and published in the Official Gazette on April 17, 1951; that, thus, with the 1949 Geneva Conventions being in force and fully valid, their Article 3 is applicable, relative to the protection of civilian persons in time of war, which obliges the contracting States, in the case of an armed conflict not of an international character occurring in their territory (which is precisely the situation of Chile during the period between September 12, 1973, and March 11, 1975), to humanitarian treatment, even of combatants who have laid down their arms, without any distinction of an unfavorable character, prohibiting, for any time and place, among others: a) violence to life and bodily integrity, and b) outrages upon personal dignity."

"Likewise, that international instrument records, in its Article 146, the commitment of its signatories to take all necessary legislative measures to set the appropriate criminal sanctions to be applied to persons who commit, or order to be committed, any of the grave breaches defined in the Convention, as well as to search for such persons, having to bring them before their own courts and take the necessary measures to ensure that acts contrary to the provisions of the Agreement cease, which in its Article 147 describes what is understood by grave breaches, namely, among them, willful killing, torture or inhuman treatment, willfully causing great suffering or serious injury to body or health, unlawful deportation or transfer, and unlawful confinement," it adds.

"Consequently," it continues, "the State of Chile imposed upon itself, by signing and ratifying the cited Conventions, the obligation to guarantee the security of persons who might have participation in armed conflicts within its territory, especially if they were detained, with measures tending to protect the grievances committed against specific persons or to achieve impunity for their authors being forbidden, keeping especially in mind that international agreements must be fulfilled in good faith and, insofar as the Pact seeks to guarantee the essential rights that arise from human nature, it has preeminent application, since this Court, in repeated sentences, has recognized that the internal sovereignty of the State of Chile recognizes its limit in the rights that emanate from human nature, values that are superior to any norm that the authorities of the State may provide, including the Constituent Power itself, which prevents them from being ignored and, even less, violated."

For the highest court, in the specific case: "(...) in the same sense, it is convenient to record that the constant jurisprudence of this Criminal Chamber has used two arguments to dismiss the application of the mitigating circumstance of responsibility of the 'half-prescription,' in cases of crimes against humanity."

"On one hand, the classification of a crime against humanity given to the illicit act committed forces the consideration of International Human Rights Law regulations, which exclude the application of both total prescription and the so-called 'half-prescription,' by understanding such institutes as closely linked in their foundations and, consequently, contrary to the jus cogens regulations coming from that sphere of International Criminal Law, which reject impunity and the imposition of penalties not proportional to the intrinsic gravity of the crimes, based on the passage of time," it explains.

"But along with this," it delves, "it is emphasized that whatever interpretation may be made of the foundation of the legal precept in discussion, the truth is that the norms to which Article 103 refers grant a mere faculty to the judge and do not impose the obligation to decrease the amount of the penalty even if several mitigating circumstances concur (Supreme Court Sentences File No. 35.788-17, of March 20, 2018, and File No. 39.732-17, of May 14, 2018), so that the non-exercise of that attribution cannot constitute an infringement of the law."

"That, such being the case, by having accepted the mitigating circumstance of 'half-prescription' or gradual prescription of the penalty regarding the accused, the lower court judges have incurred an error of law that has substantially influenced the dispositive part of the ruling, insofar as its application allowed them to make a reduction of the penalty to be imposed, in a case not permitted by law, which is why the appeal in cassation of the Program will be accepted," it concludes.

Halcones In the first-instance ruling, the visiting minister of the San Miguel Court of Appeals, Marianela Cifuentes Alarcón, established the following facts: "1st That on August 23, 1974, around 10:00 p.m., four agents of the National Intelligence Directorate (DINA), among them Osvaldo Romo Mena, an operative agent of the Halcón group, appeared at the property at Calle Alicia Ramírez No. 9.931 in Población La Bandera, commune of La Granja, with the purpose of detaining Gary Nelson Olmos Guzmán, a militant of the Movement of the Revolutionary Left (MIR). 2nd That Olmos Guzmán was not in the aforementioned property, before which the agents decided to remain in the place, waiting for his arrival. 3rd That on August 24, 1974, in the morning, the adolescent Leonardo Parraguez Gallardo appeared at the property, who, after being interrogated and coerced by the agents, provided data about the whereabouts of Gary Olmos Guzmán, who was detained, without legal right, by the mentioned agents, at the property at Calle Los Aviadores No. 540 in the commune of La Cisterna. 4th That, subsequently, Gary Olmos Guzmán was transferred to the clandestine detention center 'Cuatro Álamos,' a place where he was kept illegally deprived of liberty, with his whereabouts unknown since then. 5th That, at that time, the National Intelligence Directorate (DINA) was directed by Army Colonel Juan Manuel Guillermo Contreras Sepúlveda, currently deceased, and, in the capacity of Subdirector of Intelligence, by Army Lieutenant Colonel Pedro Octavio Espinoza Bravo. 6th That, likewise, in the referred period, the Halcón operative team of the Caupolicán Brigade of the National Intelligence Directorate was in charge of Army Captain Miguel Krassnoff Martchenko."

In the civil aspect, the sentence that ordered the treasury to pay a total compensation of $340,000,000 (three hundred and forty million pesos) to the victim's relatives was confirmed.

Source: pjud.cl 2/27/2023 Date: 02-27-2023

Espinoza Bravo and Krassnoff Martchenko sentenced for aggravated kidnapping in La Cisterna

The visiting minister for human rights violation cases of the San Miguel Court of Appeals, Marianela Cifuentes, sentenced the agents of the defunct National Intelligence Directorate (DINA) Pedro Espinoza Bravo and Miguel Krassnoff Martchenko for their responsibility in the crime of aggravated kidnapping of Gary Nelson Olmos Guzmán, an illicit act perpetrated in August 1974, in the commune of La Cisterna.

In the ruling, the magistrate sentenced Espinoza Bravo and Krassnoff Martchenko to 10 years of effective prison time as authors of the crime.

In the civil aspect, the ruling orders the State of Chile to pay a total compensation of $340,000,000 (three hundred and forty million pesos) to the victim's spouse and children.

In the investigation stage of the case, Minister Cifuentes managed to establish the following facts:

«1st That on August 23, 1974, around 10:00 p.m., four agents of the National Intelligence Directorate (DINA), among them Osvaldo Romo Mena, an operative agent of the Halcón group, appeared at the property at Calle Alicia Ramírez No. 9.931 in Población La Bandera, commune of La Granja, with the purpose of detaining Gary Nelson Olmos Guzmán, a militant of the Movement of the Revolutionary Left (MIR). 2nd That Olmos Guzmán was not in the aforementioned property, before which the agents decided to remain in the place, waiting for his arrival. 3rd That on August 24, 1974, in the morning, the adolescent Leonardo Parraguez Gallardo appeared at the property, who, after being interrogated and coerced by the agents, provided data about the whereabouts of Gary Olmos Guzmán, who was detained, without legal right, by the mentioned agents, at the property at Calle Los Aviadores No. 540 in the commune of La Cisterna. 4th That, subsequently, Gary Olmos Guzmán was transferred to the clandestine detention center «Cuatro Álamos», a place where he was kept illegally deprived of liberty, with his whereabouts unknown since then. 5th That, at that time, the National Intelligence Directorate (DINA) was directed by Army Colonel Juan Manuel Guillermo Contreras Sepúlveda, currently deceased, and, in the capacity of Subdirector of Intelligence, by Army Lieutenant Colonel Pedro Octavio Espinoza Bravo. 6th That, likewise, in the referred period, the Halcón operative team of the Caupolicán Brigade of the National Intelligence Directorate was in charge of Army Captain Miguel Krassnoff Martchenko».

ARMY OFFICER (RET.) SENTENCED TO 10 YEARS IN PRISON FOR AGGRAVATED KIDNAPPING IN SAN BERNARDO

The visiting minister for human rights violation cases of the San Miguel Court of Appeals, Marianela Cifuentes Alarcón, sentenced a retired Army officer for his responsibility in the consummated crime of aggravated kidnapping of Juan Domingo Martínez Aldana. The illicit act was perpetrated starting on December 3, 1973, in the commune of San Bernardo.

In the ruling (case file 3-2020), the visiting minister sentenced Alfonso Faúndez Norambuena, an Army lieutenant at the time of the events, to an effective penalty of 10 years in prison as the author of the crime, with the accessory penalties of absolute perpetual disqualification for public offices and political rights, and absolute disqualification for professional titles for the duration of the sentence; plus the payment of court costs.

In the civil aspect, the ruling accepted the filed lawsuit, ordering the treasury to pay a total compensation of $160,000,000 (one hundred and sixty million pesos) for moral damages to the victim's two children.

The resolution established the following facts:

«1st That on December 3, 1973, at night, soldiers from the San Bernardo Infantry School detained, without legal right, Juan Domingo Martínez Aldana at his home, located at Avenida Central No. 452 in the Santa Laura neighborhood of the same commune. 2nd That, subsequently, the victim Juan Domingo Martínez Aldana was transferred to the facilities of the San Bernardo Infantry School at Cerro Chena, a place where he was kept illegally deprived of liberty, being subjected to interrogations and mistreatment. 3rd That, at that time, the Cerro Chena prisoner camp was in charge of Army Lieutenant Alfonso Faúndez Norambuena. 4th That Juan Domingo Martínez Aldana was executed, outside the legal framework, by multiple firearm shots, on December 7, 1973, inside the aforementioned prisoner camp».

Source: adprensa.cl 09/29/2020 Date: 09-29-2020