. These crimes were perpetrated on October 4, 1973, in the commune of La Granja.

During the investigation stage, Minister Cifuentes established the following facts:

“That on October 4, 1973, around 10:00 PM, while Héctor Andrés Queglas Maturana and Luis Eugenio Morales Muñoz were at the home they shared, located in the commune of La Granja, they were unlawfully detained by Carabineros officers assigned to the La Granja Sub-precinct , which at that time was under the command of Captain Héctor Fernando Osses Yáñez and Lieutenant Aquiles Bustamante Oliva .”

“That, subsequently, Héctor Queglas Maturana and Luis Morales Muñoz were transferred to the aforementioned police unit, where they were kept unlawfully imprisoned until a Carabineros patrol, composed of Second Sergeant Armando Sáez Pérez—currently deceased—and Carabineros Segundo Baldomero Llanos Amariles, Luis Alberto Baeza Sanhueza, Fernando Rojas Velis—currently deceased—and Julio César Yáñez Illanes, among others, took them to the vicinity of the intersection of Avenida Departamental and Santa Rosa, where they were executed by means of firearm discharges.”

Prosecutions

In a second resolution (case file 30-2009 C), the magistrate indicted former officers Osses Yáñez and Bustamante Oliva as authors of the crime of qualified kidnapping of Juan Fernando Campos Gatica. This crime was committed on October 2, 1973.

During the investigative stage, the magistrate established the following sequence of events:

“ 1st That on October 2, 1973, in the afternoon, Juan Fernando Campos Gatica was unlawfully detained at his home, located at Pasaje 3 Norte No. 0467 in the San Gregorio neighborhood of the commune of La Granja, by Carabineros officers assigned to the La Granja Sub-precinct, among them Second Sergeant Armando Sáez Pérez, nicknamed “el manchado” (the stained one), currently deceased. 2nd That, immediately thereafter, he was transferred to the aforementioned police unit, which, at that time, was under the command of Captain Héctor Fernando Osses Yáñez and Lieutenant Aquiles Bustamante Oliva, where he was kept unlawfully imprisoned. 3rd That, instead of being placed at the disposal of the competent court, the detainee was executed during the night by a firearm discharge, which caused a cervicofacial wound that entered through the left lateral side of the neck, perforated the carotid artery, fractured the 3rd cervical vertebra, and partially severed the spinal cord, exiting through the right malar region.”

Finally (case file 30-2009 D), Minister Marianela Cifuentes resolved to indict Héctor Osses Yáñez and Aquiles Bustamante Oliva for their responsibility in the qualified kidnappings of Mario Ángel Candia Acevedo, Luis Humberto Muñoz Aguayo, and Luis Antonio Villarroel Rivera . These crimes were perpetrated on October 2, 1973, in the San Gregorio neighborhood of the commune of La Granja.

In this case, the following facts were established:

“ 1st That on October 2, 1973, in the afternoon, Mario Ángel Candia Acevedo, Luis Humberto Muñoz Aguayo, and Luis Antonio Villarroel Rivera were unlawfully detained at the corner of Pasajes 9 Poniente and 5 Norte in the San Gregorio neighborhood of the commune of La Granja by Carabineros officers assigned to the La Granja Sub-precinct , among them Second Sergeant Armando Sáez Pérez , nicknamed “el manchado,” currently deceased. 2nd That, immediately thereafter, they were all transferred to the aforementioned police unit, which, at that time, was under the command of Captain Héctor Fernando Osses Yáñez and Lieutenant Aquiles Bustamante Oliva , where they were kept unlawfully imprisoned. 3rd That, instead of being placed at the disposal of the competent court, the three detainees were executed during the night, with Mario Ángel Candia Acevedo dying from a thoracic wound caused by a ballistic projectile that entered through the right scapular region, damaging the lower, middle, and upper lobes of the right lung in its trajectory, partially severing the aorta, and exiting through the 1st left intercostal space; Luis Humberto Muñoz Aguayo dying from an abdominal wound caused by a ballistic projectile that entered through the left iliac fossa, perforating the colon and the right iliac artery, and exiting through the right iliac bone; and Luis Antonio Villarroel Rivera dying from three thoracic wounds caused by ballistic projectiles that entered through the back of the thorax, perforating both lungs and the aorta, causing a hemothorax and acute anemia.”

Source: elclarin.cl, August 9, 2017

Minister Marianela Cifuentes sentences retired Carabineros for qualified homicide and simple kidnapping in La Granja.

In the first ruling, Minister Cifuentes sentenced former officers Héctor Fernando Osses Yáñez and Aquiles Bustamante Oliva to 3 years in prison as authors of the crime of simple kidnapping.

The minister on special assignment for human rights violation cases at the San Miguel Court of Appeals, Marianela Cifuentes Alarcón, issued separate sentencing rulings against retired members of the Carabineros for their responsibility in the crimes of qualified homicide and simple kidnapping, crimes perpetrated in October 1973 in the commune of La Granja.

In the first ruling (case file 118-2011), Minister Cifuentes sentenced former officers Héctor Fernando Osses Yáñez and Aquiles Bustamante Oliva to 3 years in prison as authors of the crime of simple kidnapping, and to 12 years in prison as authors of the crime of qualified homicide; meanwhile, retired Carabinero Julio César Yáñez Illanes was sentenced to 5 years and one day in prison as an author of the crime of qualified homicide.

During the investigation stage of the case, the visiting minister established the following facts:

1st That on October 10, 1973, at night, while Juan Jorge Gallardo Núñez, 19 years of age, was at his home, located at Avenida Sur No. 0460 in the San Gregorio neighborhood, in the company of his father Juan Gallardo Mora, his stepmother María Agustina Ferrada Quilodrán, and his brother Claudio Enrique Gallardo Ferrada, he was unlawfully detained by police officers assigned to the La Granja Sub-precinct. 2nd That, at that time, the La Granja Sub-precinct was under the command of Captain Héctor Fernando Osses Yáñez and Lieutenant Aquiles Bustamante Oliva. 3rd That, subsequently, when the victim's mother went to the La Granja Sub-precinct to request information regarding his situation, she was told that he had been handed over to a military patrol, which was not true, as he had been executed in public in the Lo Valledor sector by a gunshot wound to the thorax by a Carabineros patrol from the aforementioned police unit, composed of, among others, Second Sergeant Armando Sáez Pérez—deceased—and Carabineros Desiderio Armando Arroyo Cabezas—deceased—, Maximiliano del Carmen Avendaño Herrera—deceased—, Fernando Enrique Valenzuela Rebolledo—deceased—, and Julio César Yáñez Illanes.

In the second case (case file 92-2011), the minister sentenced Héctor Fernando Osses Yáñez and Aquiles Bustamante Oliva to 3 years in prison, with the benefit of conditional remission of the sentence, as authors of the crime of simple kidnapping.

During the investigation stage of the case, the visiting minister established the following facts:

1st That on October 19, 1973, in the afternoon, in the vicinity of the intersection of Avenida Santa Rosa and Calle Bolivia in the commune of La Granja, Pedro David Otárola Sepúlveda was unlawfully detained, along with five other people, by Second Sergeant Temístocles Vergara Espinoza and personnel under his command, all assigned to the La Granja Sub-precinct, and subsequently transferred to the aforementioned police unit. 2nd That, at that time, the La Granja Sub-precinct was under the command of Captain Héctor Fernando Osses Yáñez and Lieutenant Aquiles Bustamante Oliva. 3rd That, starting on October 19, 1973, Pedro Otárola Sepúlveda was kept illegally and arbitrarily imprisoned in a cell at the La Granja Sub-precinct. 4th That while Pedro Otárola Sepúlveda was imprisoned in the aforementioned police unit, false information regarding his situation was given to his relatives, and the truth was falsified in the guard logbook, stating that he had been released on October 20, 1973, at 06:35 AM. 5th That, on October 21, 1973, in the early morning, Pedro Otárola Sepúlveda, instead of being placed at the disposal of the competent judicial or administrative authority, was taken to a vacant lot on Camino El Mariscal for the purpose of executing him.

Source: diarioconstitucional.cl, April 18, 2019

Supreme Court sentences retired Carabineros officers for qualified homicide in Lo Valledor

The Second Chamber of the highest court sentenced the then-Captain of the Carabineros Héctor Fernando Osses Yáñez and Lieutenant Aquiles Bustamante Oliva to 12 years in prison as indirect authors of the crime.

Meanwhile, retired Carabinero Julio César Yáñez Illanes was sentenced to 3 years in prison, with the benefit of conditional remission of the sentence, as the executing author of the homicide.

The Supreme Court accepted the appeal in substance filed by the Undersecretariat of Human Rights of the Ministry of Justice and, in a replacement sentence, condemned three retired members of the Carabineros who were assigned to the La Granja Sub-precinct at the time of the events for their responsibility in the consummated crime of qualified homicide of Juan Jorge Gallardo Núñez, a 19-year-old youth executed in the Lo Valledor sector in October 1973.

In a majority ruling (case file 24.292-2020), the Second Chamber of the highest court—composed of ministers Haroldo Brito, Manuel Antonio Valderrama, Jorge Dahm, Leopoldo Llanos, and minister María Cristina Gajardo—sentenced the then-Captain of the Carabineros Héctor Fernando Osses Yáñez and Lieutenant Aquiles Bustamante Oliva to 12 years in prison as indirect authors of the crime.

Meanwhile, retired Carabinero Julio César Yáñez Illanes was sentenced to 3 years in prison, with the benefit of conditional remission of the sentence, as the executing author of the homicide.

In the ruling, the Criminal Chamber of the Supreme Court dismissed the claim of legal error in the sentence that condemned Osses Yáñez and Bustamante Oliva as indirect authors of the crime, as they were in command of the police unit in charge of the repression implemented after September 11, 1973, in the southern sector of the Metropolitan Region.

“That, in the case sub iudice, executing this general policy of repression at the local level required designating a fixed or rotating contingent of agents from the respective territorial unit for its fulfillment, assigning them a direct manager or person responsible for its operation—Sergeant Sáez Pérez, alias ‘El Manchado,’ as mentioned by several witnesses—and providing them with material means for the detention, transfer, and attacks against the victims—‘requisitioned vehicles’ and weapons.

All of the above required, it goes without saying, the intervention and approval of the chiefs or superiors of the police unit under examination,” the ruling maintains.

The resolution adds: “That, however, much more relevant and decisive for the real and effective execution of that general policy of repression at the local level was to assure the executing agents that the crimes committed in the fulfillment of the task would not be ‘really’ investigated or sanctioned, neither administratively nor criminally, precisely because these would constitute a manifestation and materialization of said policy, of which the institution to which they belong, and in particular the unit they comprise, had become a part.

In that line of thought, in a hierarchical and militarized institution like the Carabineros, the agent who is on the lowest rung of the ladder will only act to fulfill that general policy, even more so if it involves the commission of serious crimes, if it is ratified and endorsed, expressly or tacitly, by their direct superiors—the chiefs of the unit—the only guarantee that they will not later be pursued for its execution.”

“With that conduct, it is worth clarifying, the chiefs of the police unit do not only communicate or transmit an order that comes from very high up in the bureaucratic structure, but they make it their own and, therefore, the agent who disobeys it not only rebels against the distant and diffuse superior who distributes the infamous general instructions from the central offices of the institution, with improbable concrete adverse consequences, but challenges the nearby chief of their unit directly, exposing themselves to clear and imminent reprisals,” it adds.

For the highest court: “(…) in this context, contrary to what the defense of Osses believes, the accusation made against the chiefs of the La Granja Sub-precinct is not built on their omissions, passivity, or inactivity—that is, for not having stopped and prevented crimes from continuing to be committed by officials under their command and with material means under their administration, despite knowing or being unable to not know that this was happening—but rather, responsibility is observed here for an active or positive conduct, that is, the implementation of a national policy of repression at the local level, for which, as already outlined, a group of people is assigned under the charge of a sergeant, the use of vehicles and weapons at the disposal of the police unit is permitted for that purpose, and its execution is supervised daily through morning reports.”

“That—it delves deeper—the preceding considerations lead to qualifying the conduct of the chiefs of the La Granja Sub-precinct, at the time of the events, as indirect authorship by direction of the malicious instrument through an organized apparatus of power, since an indirect author is not only the supreme chief of a criminal organization, but anyone who, within the scope of the hierarchy, transmits the criminal instruction with autonomous command power, being able to be an author even when they act on behalf of a superior instance, thus forming a chain of indirect authors (Montoya, M. cited by Ríos, J. ‘De la autoría mediata en general y de si en Chile su inexpresividad legal constituye una laguna de punibilidad’ [On indirect authorship in general and whether its legal inexpressiveness in Chile constitutes a loophole of punishability]. Polít. crim. no. 2. A4, p.1-23).”

“By reason of such character, it is that the chiefs of the La Granja Sub-precinct might not have directly given the executing agent or agents the order to detain and kill anyone in particular, leaving the determination of whom and when to do so, as well as by which member of the commission formed for that purpose, to the chief assigned to it—Sergeant Sáez Pérez in this case.

Thus, the concrete executor of the detention and death of the victims becomes irrelevant to the indirect author, since they are nothing more than a fungible piece of this organizational apparatus, in which, in the face of the refusal or opposition of a police officer to execute the crime, they can be easily replaced by any of the many others who made up the unit, a circumstance that demonstrates the control of the act possessed by the indirect author, in this case, the chiefs of the La Granja Sub-precinct,” the resolution affirms.

“That, then, it is worth being emphatic about this: said intermediation in no way diminishes the responsibility of the chiefs of the La Granja Sub-precinct, but on the contrary, aggravates it, because as has been aptly said, in this class of crimes, massive not only from the point of view of the victims but also of the perpetrators, ‘the measure of responsibility does not diminish, but grows, with the greater distance from the place of the events’ (Schröder, cited by Politoff et al, ob. cit., p. 412),” the ruling adds.

“That the sentence is also supported by various testimonies and establishes facts that allow for the affirmation of indirect authorship in the manner already extensively explained,” the Supreme Court highlights.

“With all that, and for greater abundance, it is worth keeping in mind that in the case of crimes against human rights, the jurisprudence of International Tribunals has considered that in the case of hierarchical structures—such as military ones—there exists, alongside the executing author, a particular author of the international infraction, which is the hierarchical superior, a form of participation that emanates from the orders they gave, with their responsibility being compromised in the capacity of hierarchical superior, provided that they are part of the chain of command,” the ruling states.

“This has been established by the jurisprudence of the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the former Yugoslavia, which has pointed out that the constituent elements for the responsibility of the superior come from Article 86-2 of the Additional Protocol to the Geneva Conventions, in addition to other international instruments, such elements being: 1.

The existence of a bond of subordination between the executor and the hierarchical superior; 2. The knowledge or implicit knowledge of the superior that the crime was going to be committed, was being committed, or had been committed; 3.

The omission on the part of the superior to take the necessary and reasonable measures to prevent the perpetration of the crime or to punish the author,” the resolution details.

In that sense, in the specific case, the convicted: “(…) Osses Yáñez and Bustamante Oliva, at the time of these events, were in charge of the La Granja Sub-precinct and, therefore, constituted that essential link for that state policy of repression with a national horizon to materialize at the local level, which allows their responsibility to be qualified as indirect authorship.”

“The direction—it continues—of the aforementioned unit by the defendants is a fact established in No. 2 of the 13th motive of the first-instance sentence, not modified by the appellate court, a factual conclusion that has full support in various testimonies of police officers who served there at the time, which are summarized in the 12th consideration of the first-degree ruling, all of whom, despite the different hierarchical rank of Osses Yáñez—captain—and Bustamante Oliva—lieutenant—coincide in attributing to them indiscriminately the command of the aforementioned police unit.”

“That finally, this court also takes into consideration that the estimation of the gradual prescription regarding those responsible for the commission of crimes against humanity affects the principle of proportionality of the sentence, since the gravity of the events perpetrated with the intervention of State agents determines that the response to the author of the transgression must be coherent with the affectation of the legal good and the culpability with which they acted, so that, under such conditions, the sentence incurred in the ground for invalidation on which the appeal in substance deduced by the Human Rights Program is based, by accepting the gradual prescription regulated by Article 103 of the Penal Code in a case where it was inappropriate, which had a substantial influence on the decision, since its estimation led the judges of the merits to impose on the sentenced parties a lesser punishment than that which legally corresponded, so that this cause of the remedy under study will be accepted,” the sentence concludes.

Execution

In the first-instance resolution, the special minister of the San Miguel Court of Appeals, Marianela Cifuentes Alarcón, deemed the following facts established:

“ 1.- That on October 10, 1973, at night, while Juan Jorge Gallardo Núñez, 19 years of age, was at his home, located at Avenida Sur No. 0460 in the San Gregorio neighborhood, in the company of his father Juan Gallardo Mora, his stepmother María Agustina Ferrada Quilodrán, and his brother Claudio Enrique Gallardo Ferrada, he was unlawfully detained by police officers assigned to the La Granja Sub-precinct. 2.- That, at that time, the La Granja Sub-precinct was under the command of Captain Héctor Fernando Osses Yáñez and Lieutenant Aquiles Bustamante Oliva. 3.- That, subsequently, when the victim's mother went to the La Granja Sub-precinct to request information regarding his situation, she was told that he had been handed over to a military patrol, which was not true, as he had been executed in public in the Lo Valledor sector by a gunshot wound to the thorax by a Carabineros patrol from the aforementioned police unit, composed of, among others, Second Sergeant Armando Sáez Pérez—deceased—and Carabineros Desiderio Armando Arroyo Cabezas—deceased—, Fernando Enrique Valenzuela Rebolledo—deceased—, and Julio César Yáñez Illanes. ”.

Source: pdju.cl, January 26, 2023