Translated by Elaine Fuller, a CSN Volunteer Translator
Source:Colectivo de Abogados José Alvear Restrepo
The Supreme Court ratifies conviction of eight members of the Army in a “false positive” case
The Criminal Division of the Supreme Court left standing convictions against eight military officers for crimes of forced disappearance, aggravated homicide, falsifying public records, embezzlement and conspiracy to commit crimes against others. These were committed in 2008 against Daniel Andrés Pesca Olaya and Eduardo Garzón Páez, poor young workers from Bogotá and Soacha respectively. They were assassinated and buried as unidentified bodies on the fourth of March in 2008.
Days prior to that date, the young men had been led by deception to Cimitarra, Santander and turned over to members of the Army belonging to the Rafael Reyes Battalion who put camouflage outfits over their civilian clothing and then shot them with official weapons. In the official report, the young men were presented as members of an organized criminal gang who were killed in a confrontation.
The Institute of Legal Medicine only succeeded in identifying the bodies on August 28 2008. They then delivered the mortal remains to the families so they could proceed with their burials. Only then could these families mourn the disappearance of their loved ones.
The convicted military officers in this case are the Commander of the Rafael Reyes Battalion, Lieutenant Colonel Wilson Javier Castro Pinto; the Chief of the B-2 Division of the Battalion, Lieutenant Eduardo Antonio Villani Realpe; and the Sargent of the B-2 Division, Jesús Eduardo Niampira Benadidez. They are all sentenced to 56 years in prison. Likewise, 54-year prison sentences were given to the following professional soldiers in the B-2 Division: Juan Carlos Álvarez, Nélson Ospina Tabares, Belancio Puentes Guapacha and Germán Augusto Oliveros Tabares. Another professional soldier from the B-2, Guillermo Pacheco Anzola, was sentenced to six years in prison for forgery and embezzlement.
In the analysis carried out by the Court, the Tribunal and the Judge, it was determined that in this case a criminal group was formed, whose members coauthored misleading information; that is to say, they had a division of work within a common criminal plan.
One of the most important aspects outlined by the Court’s Criminal Division was the relationship of this case to the crime of forced disappearance in which a person is deprived of his liberty in an arbitrary or deceptive manner until either their families or relatives actually find them alive or their mortal remains are found, identified and returned to their loved ones. Given this consideration, the Court reaffirmed that forced disappearance is a continuing crime against humanity as has been indicated by the Inter-American Court and the International Criminal Court. Also, this case did not deal simply with the disappearance of bodies as the legal defense of the military erroneously tried to present.
Initially, the defense strategy for the Battalion was one of discrediting the victims, showing that they were actually dealing with delinquents who had prior criminal records. Similarly, the defense made this argument against the alleged informant and protected witness of the Prosecutor, Mr. Wilson Pedraza González.
The Court found unquestionable the evidence used by the Prosecution: that the weapons were useless, that the trajectory of bullets was not consistent with the story of the perpetrators, that 48 cartridges were reported as the product of a fight when only three showed up from the weapon of the soldier Álvarez, that the camouflage outfits of the dead young men were new, that they were worn over civilian clothes and that the young men carried new boots.
The prosecution also established, through cell phone calls, links between three members of the B-2 Battalion, the victims and the group recruiter. The false informant who would have contributed the location coordinates of the alleged criminal group did not receive money; and the scene of the crime contained mounting evidence.
The prosecution also identified irregularities in the military procedures such as the participation of intelligence agencies, not verifying received information, and the absence of a military operation in accord with the protocols of combat. Following the investigation of these facts, the Attorney General of the nation, in a ruling on September 30, 2013, ordered the dismissal from the military of seven of those involved. There was also a special investigation carried out by the Inspector General of the Army, General Suarez, and the Vice-President of the Republic. The consequence was that these seven did not receive further promotion and were demobilized from the Army.
The legal representatives of these military men proposed a joint defense for the perpetrators and the planners thus preventing the defendants from admitting the charges and allowing them to receive a reduction in the sentences while collaborating with the judiciary in order to know the whole structure and those with maximum responsibility for these deeds. They maintained this inadequate defense until delivery of the final verdict.
In its decision, the Criminal Division of the Court unanimously upheld the judgment on appeal given by the Bucaramanga Tribunal. It denied annulment and ordered the prosecution to investigate other participants in these crimes against humanity.
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