Address: Pasaje Antofagasta, house No. 152, Población El Manzanal No. 6, Peñaflor Marital Status: Married Occupation: Painter Political Affiliation: Militant of the Partido Socialista Date of Detention: July 30, 1974

REPRESSIVE SITUATION

Gumercindo Fabián Machuca Morales, married, a militant of the Partido Socialista, was detained on July 30, 1974, at 03:40 in the morning at his home located in the town of Peñaflor by a group of six agents from the Dirección de Inteligencia Nacional (DINA), led by Osvaldo Romo Mena, a civilian official of the DINA. The captors were traveling in a red Fiat 600 and a white Chevrolet pickup truck.

At the moment the agents were taking the victim to the truck, his spouse, Gabriela Gárate, was able to recognize inside the vehicle Ramón Osvaldo Núñez Espinoza, who had been detained on July 25, 1974, and Ofelio Lazo Lazo, who had been detained that same night before the victim; both remain forcibly disappeared to this day.

The agents took Gumercindo Machuca to an unknown destination; furthermore, they did not present a search or arrest warrant issued by any competent authority.

During those days in July 1974, several militants of the MIR and the Partido Socialista who were friends of the victim were detained. Among them, in addition to those already mentioned, were Sergio Tormen Méndez (detained on July 20), Juan Bautista Barrios Barros (detained on July 27), and Eduardo Enrique Alarcón Jara, who was detained that same night at approximately 03:00 in the morning.

In all these detentions, the same DINA operational group acted under the command of Osvaldo Romo Mena, who on some occasions wore an Army uniform.

Subsequent investigations allow for the conclusion that the victim was taken to Calle Londres No. 38 (a house that had been a headquarters for the Partido Socialista and, after the Military Coup, was usurped by the DINA and used as a facility for the detention, interrogation, and torture of political prisoners), as it was possible to confirm the presence of the other detainees there alongside him.

All the aforementioned detainees, like Machuca Morales, remain in the status of forcibly disappeared.

JUDICIAL AND/OR ADMINISTRATIVE ACTIONS

His spouse, Gabriela Gárate Silva, filed a Writ of Amparo (Habeas Corpus) with the Court of Appeals on August 19, 1974, which was registered under case file No. 995-74. On August 20, the Seventh Chamber requested reports from the Ministry of the Interior and Defense.

It was not until September 20, 1974, one month after the writ was filed, that Army General Raúl Benavides, in his capacity as Minister of the Interior, reported that the victim was not being held by order of any administrative authority, adding that his Ministry was unaware of Machuca Morales's whereabouts.

On November 28, 1974, two months later, the Ministry of Defense reported that there were no complaints registered against the victim in the Military Justice system, nor did they have any records regarding him.

On December 2, 1974, the Court rejected the amparo based on the merits of the information provided by the administrative authority, ordering that the corresponding Tribunal be notified to initiate a summary proceeding.

In the Talagante Criminal Court, case file No. 23.002 was opened for the alleged disappearance of Gumercindo Machuca Morales, which was temporarily dismissed. Subsequently, in April 1979, the case was transferred to the 2nd Military Prosecutor's Office of Santiago, where it was lost; it has been impossible to find the file to this day.

On June 13, 1980, Gabriela Gárate filed a criminal complaint for the kidnapping of her husband, Gumercindo Machuca Morales, against Osvaldo Romo before the Visiting Judge Servando Jordán López, who was investigating cases of forcibly disappeared persons in the Metropolitan Region.

The document requested that the complaint be consolidated with case file No. 12.674 of the 9th Criminal Court for the alleged disappearance of Ramón Núñez Espinoza; case file No. 76.225 of the 7th Criminal Court for the alleged disappearance of Eduardo Alarcón Jara; the alleged disappearance of Ofelio Lazo Lazo, case file No. 12.725 of the 9th Criminal Court; and case file No. 13.294 of the 8th Criminal Court for the alleged disappearance of Sergio Tormen.

In an official letter to the Visiting Judge, the Talagante Criminal Judge reported that case No. 23.002 regarding the victim's alleged disappearance had been sent to the Military Justice system. For this reason, Judge Jordán incorporated into the proceedings his resolution of June 25, 1980, which states, in general terms, that the cases of the other detainees linked to the victim were sent to the Military Justice system, given that General (R) Manuel Contreras Sepúlveda is implicated in all the investigated cases, and for that reason, the files were sent to the 2nd Military Prosecutor's Office, where a complaint against the aforementioned officer is being processed, case No. 553-78. Therefore, as the cases fall under military jurisdiction, any consolidation or request related to them must be sent to the military justice system.

In relation to the above, on May 14, 1981, the Judge indicated that the complaint requested the reopening of the summary proceeding for the alleged disappearance of Machuca Morales, processed in the Talagante Court (case file No. 23.002), and that it be consolidated with the cases of the other persons detained under similar circumstances and dates mentioned above, without prejudice to the fact that the process instructed in Talagante does not fall under the jurisdiction of Judge Jordán's visit.

Furthermore, he added that the aforementioned case had been sent to the Military Justice system, according to information from the Talagante Tribunal, as were the processes linked to Machuca Morales, such as those of Eduardo Alarcón Jara, Ramón Núñez Espinoza, Ofelio Lazo, Julio Guajardo, and Sergio Tormen, all of which are consolidated with case No. 553-78 of the 2nd Military Prosecutor's Office of Santiago "against Manuel Contreras and others" for repeated kidnapping of persons; therefore, the complaint filed before the Visiting Judge must be sent to the aforementioned Military Prosecutor's Office as it corresponds to their jurisdiction.

The 2nd Military Prosecutor's Office accepted jurisdiction over the case, and on August 6, 1982, consolidated the complaint and the other mentioned cases with case No. 553-78.

On March 1, 1987, the closure of the summary proceeding was decreed, and on the 17th of the same month, the temporary dismissal of the case was decreed. Subsequently, after the Military Prosecutor's resolution was appealed, the summary proceeding was reopened on October 5, 1983.

On November 30, 1989, the temporary dismissal of the case was resolved again. On January 16, 1989, an appeal was filed with the Court Martial, and its ruling is pending. (For complete details of the complaint against Manuel Contreras, see the case of Eduardo Alarcón Jara.)

Without any investigative steps being taken for four years, on November 20, 1989, Army Lieutenant Colonel Enrique Ibarra Chamorro, Military Prosecutor General, requested the application of the Amnesty Decree Law (D.L. 2.191) for this case because the process had the exclusive purpose of investigating alleged crimes that occurred during the period between September 11, 1973, and March 10, 1978, and because during the 10 years of processing, it had not been possible to "determine the responsibility of any person." On November 30, 1989, the request was accepted by the 2nd Military Court, which dismissed the case totally and definitively—even though it was still in the summary stage—due to "the criminal responsibility of the persons allegedly implicated in the reported events having been extinguished." The plaintiff parties appealed this resolution to the Court Martial, which confirmed the ruling in January 1992. A Complaint Appeal was then filed with the Supreme Court of Justice, which, as of December 1992, had not yet issued its resolution.

Former DINA agent Osvaldo Romo Mena was finally arrested in November 1992. In the course of a series of investigative steps decreed in the case of the disappearance of Alfonso Chanfreau Oyarce, he was located in Brazil by Judge Gloria Olivares of the 3rd Criminal Court of Santiago.

He had arrived in that country at the end of 1975 under instructions from the DINA, as he was being summoned in several judicial proceedings. The DINA provided him with a false identity for himself and his family group and supported him with financial means and contacts for his settlement in the aforementioned country.

The former agent was arrested in Brazil in June 1992 and was expelled in November. As of December 1992, he had been charged in six cases of forcibly disappeared persons and in one case of a person who died in a DINA facility.

Source: Corporation Report

Juan Bautista Barrios Barros (27 years old), Gumercindo Fabián Machuca Morales (28 years old), and Eduardo Enrique Alarcón Jara (28 years old) were kidnapped at the end of July 1974 and taken to the illegal detention center known as "Londres 38," where their trail was lost.

The Supreme Court rejected a cassation appeal filed against the sentence that convicted the agent of the dissolved Dirección de Inteligencia Nacional (DINA), César Manríquez Bravo, to a sentence of 10 years and one day of effective imprisonment, as the perpetrator of the crimes of qualified kidnapping (disappearance) of Juan Bautista Barrios Barros, Gumercindo Fabián Machuca Morales, and Eduardo Enrique Alarcón Jara (pictured), perpetrated in Santiago, Chile, at the end of July 1974.

In a unanimous ruling (case file 82.388-2021), the Second Chamber of the high court—composed of ministers Haroldo Brito, Manuel Antonio Valderrama, Jorge Dahm, Leopoldo Llanos, and minister María Teresa Letelier—dismissed the appeal due to "manifest lack of foundation" and for formulating "mutually incompatible" requests.

The Facts In the first-instance sentence, the visiting judge Mario Carroza established the following facts: "1st.- The Dirección de Inteligencia Nacional, DINA, was for a large part of the military government a repressive organization that maintained throughout its existence a duly organized, hierarchical structure with its own means, such as various prisoner facilities that operated clandestinely.

The organization was always in charge of its director general, Army officer Manuel Contreras, currently deceased, to whom all its members were subordinate. In the particular case of the Metropolitan Region, the operational activities of the DINA were in charge of the Metropolitan Intelligence Brigade, which was under the command of an Army officer, and had as its objective the repression of all militants of leftist political movements and parties.

Their work teams were composed of members of the Army, Carabineros, and the Investigative Police, the same ones who had to report their work daily to their superiors, who were the ones who gave them the guidelines, objectives, and priorities to be fulfilled; 2nd.- One of the facilities that the DINA maintained at the beginning of its operations was located at Calle Londres No. 38, called Cuartel Yucatán, in which numerous people were kept deprived of liberty and locked up without a judicial order, with the sole purpose of being interrogated under torture.

It was the implementation of a State policy destined to dismantle and exterminate the members of movements or organizations contrary to the regime established at that time. This detention center, which held numerous people without legal right, was also under the command of an Army officer. 3rd.- Under these conditions prevailing in the country, the events of July 1974 unfolded against militants of the Movimiento de Izquierda Revolucionaria and the Partido Socialista.

For this reason, on the 27th, around 16:00 hours, the MIR militant Juan Bautista Barrios Barros, a 27-year-old young man, was detained by agents of that organization inside his house located in Villa Manuel Rodríguez, block 74, site 1392, in the commune of Pudahuel, and transferred to the Londres 38 barracks, where he was last seen on July 30, 1974.

In his political history, his involvement in propaganda and political training tasks with another detainee who was in that facility, the Partido Socialista militant Ofelio de la Cruz Lazo Lazo, detained on July 30, 1974, and currently disappeared, was highlighted for these purposes, as well as with his fellow militant Eduardo Enrique Alarcón Jara, who was detained on the same day, the 30th of that month and year, at his home located at Pasaje Aycará 6126 in the Kennedy neighborhood of Las Rejas Sur in Santiago, in the early hours of the morning, by agents who transferred him to the same facility and from where he disappeared. Alarcón Jara counted among his political links the aforementioned Ofelio de la Cruz Lazo Lazo and Juan Bautista Barrios Barros. But these activities did not stop, as on the same day, July 30, in the early hours of the morning, DINA personnel, among whom was Osvaldo Romo Mena, accompanied by Ofelio de la Cruz Lazo Lazo, detained the worker and Partido Socialista militant known by the political name Gustavo, Gumercindo Fabián Machuca Morales, at his home, located at Pasaje Antofagasta, house 152, Población El Manzanal in Peñaflor, put him in a pickup truck, and left with him for an unknown destination, presumably the aforementioned Londres 38 facility, since he was never seen alive again," states the investigation by Judge Carroza.

In the civil aspect, the sentence that ordered the state treasury to pay a total compensation of six hundred and sixty million pesos to the victims' families was maintained.

In this case, agents Ciro Ernesto Torré Sáez and Miguel Krassnoff Martchenko were sentenced to 10 years and one day of imprisonment as co-perpetrators of the crimes. However, the former passed away in September 2021, so, consequently, the high court did not issue a ruling regarding the cassation appeal filed by his defense, ordering the referral of the records to the trial judge, who must issue the resolution that corresponds by law.

Meanwhile, Krassnoff Martchenko's defense did not appeal, so the ruling issued against him remains in force.

Source: elciudadano.cl, January 21, 2023 Date: 21-01-2023

Santiago Court of Appeals convicts DINA agents for qualified kidnappings in 1974

The appellate court confirmed the sentence that convicted Miguel Krassnoff Martchenko, Ciro Torré Sáez, and César Manríquez Bravo to 10 years of effective imprisonment as perpetrators of the crimes, with the declaration that the compensation the state treasury must pay to each spouse of the victims is increased to $100,000,000.

The Santiago Court of Appeals confirmed the sentence that convicted three agents of the dissolved Dirección de Inteligencia Nacional (DINA) for their responsibility in the crimes of qualified kidnapping of Juan Bautista Barrios Barros, Eduardo Enrique Alarcón Jara, and Gumercindo Fabián Machuca Morales. These illicit acts were perpetrated in July 1974 in the Metropolitan Region.

In the sentence (case file 6.195-2020), the Second Chamber of the appellate court—composed of ministers Mireya López, Inelie Durán, and Alejandro Aguilar—confirmed the challenged resolution, issued by visiting judge Mario Carroza, which convicted Miguel Krassnoff Martchenko, Ciro Torré Sáez, and César Manríquez Bravo to 10 years of effective imprisonment as perpetrators of the crimes, with the declaration that the compensation the state treasury must pay to each spouse of the victims is increased to $100,000,000 (one hundred million pesos).

"That in relation to the modifying circumstances of criminal responsibility, we agree with what was resolved by the Visiting Judge in order to accept in favor of the defendants their irreproachable prior conduct and dismiss the other exculpatory and mitigating circumstances invoked, as well as the application of Article 103 of the Penal Code given the nature of the crimes investigated—qualified kidnapping—in which, to date, the whereabouts of the victims are still unknown, so it is not possible to set a milestone for the start of the calculation of the period necessary to apply the last cited article," the ruling maintains.

The resolution adds: "That regarding the extent of the criminal sanction imposed, it is within the margins set by law, so no modification will be ordered in this aspect."

"That in the civil part," it continues, "the decision of the first instance to accept the civil claims filed against the State of Chile and thus dismiss the traditional allegations of full reparation, symbolic reparations, and statute of limitations, as the Extraordinary Visiting Judge has done, is also shared."

For the appellate court: "Regarding the amount of the compensation, it is necessary to consider the particular situation of the spouses of the three victims who are still disappeared, having to consider the grief and suffering they have faced over the years and that, in some way, the State must repair in the manner that the legislation considers for this type of case, namely, pecuniary."

"Within this perspective, the amounts regulated by the a quo judge seem insufficient for said spouses if the suffering experienced is considered, and consequently, they will be increased, setting the sum of $100,000,000 (one hundred million pesos) for them, maintaining what was regulated in favor of the children," it concludes.

Decision adopted, in the civil aspect, with the dissenting vote of Minister Durán.

Source: pjud.cl, 1/9/2021 Date: 01-09-2021