A Fundaredes activist spent three years in prison, was pressured to plead guilty and tried for crimes not attributable to him

Alexis Bernardo Bustamante Molano is first lieutenant (GNB) and was an official of the DGCIM, until he retired from the Bolivarian Armed Forces and became an activist of the Fundaredes organization in Zulia state; his nightmare began in Táchira almost three years ago, on May 17, 2019, when he was talking to Captain Useche, a an Army officer attached to the General Directorate of Military Counterintelligence (DGCIM), who orders his arrest without a judge's order. For 13 days he was in forced disappearance, abducted by officials who refused to communicate with his family or private lawyer.

Two days after his arrest, Bustamante Molano was transferred from San Cristobal to the DGCIM headquarters in Boleita, Caracas. When he was later able to talk to his family, he said that at that time he was beaten and abused in various ways. Nine days later, on 26 May, after he was arrested, he was presented, with a public defender, before the Third Military Court of Control, Mickel Enrique Amezquita Pión, with clear signs of the torture he received. As is the case in most cases, they changed the day of detention to fit the periods of law and the medical examiner who checked him did not reflect the signs of torture in the report.

Faced with the carelessness of his custodians, the first lieutenant tried to flee the Tribunal, but was recaptured a few meters later and transferred again to the DGCIM, where as punishment for his attempted escape he was “beaten on different parts of his body and forced to remain half-naked in a cold room, standing, without food, without sleep, without water for two days, repeated beatings on the soles of his feet when he decayed or tried to sit”, he narrated shortly after when he was transferred, the May 29, 2019, to the Ramo Verde Military Prosecution Center: that day, for the first time, he was allowed to call a relative.

In August 2019, the Preliminary Hearing was held and the officer refused to assume the crime he was charged with instigating the rebellion, so the judge ordered his stay in the Ramo Verde prison. Time is ticking for those who are free, but for those who are in prison it runs slowly, one day every day, and so it has been two years since Bustamante Molano was arrested in his native Táchira.

Each of those more than 700 days the young soldier was waiting for the response of the authorities, but the one who came to visit was the military public defender, Supervising Sergeant Ángel González, who told him that he had not read the file very well but that what he could do was a writing so that Alexis Bernardo Bustamante Molano would assume, that is, plead guilty to what they were accusing him and thus “would speed up the opening and that by going down to it he would be released”. It is the same excuse with which hundreds of detainees have been broken, who desperately end up yielding to the “miracle proposal” of public defenders, including prosecutors and judges in the service of the Venezuelan regime.

¡que Defensor!

It arrived on October 28, 2021, almost two and a half years after being deprived of liberty, when Bustamante was transferred to the opening of trial by order of the First Trial Military Court; there were omitted aspects relevant to estimating the sentence, after the lieutenant had assumed, so it was ruled that it would be 5 years old.

In the middle of the act, the military public defender told Bustamante that “because of his madness in trying to leave the courts he had a line and that almost made him get into trouble”; the public defender's intention was never to defend Bustamante; it is the same fact of almost all military public defenders.

Bustamante Molano and his family considered that the Court's decision was not appropriate and requested appeal and/or review of the sentence, but the military public defender refused to perform the requested diligence. He told Bustamante very altered and emphasized that he “would not waste time on that or waste paper”, and that if he did not like the way things had turned out, he would look for another lawyer stating that there “the law is not followed but orders”.

Lieutenant Alexis Bernardo was left with no other option, given the refusal of the military public defender, who writes in his own way a written request for the respective appeal and processing it since November 1, 2021, that is, fulfilling the corresponding deadlines, through the Ramo Verde Prison Directorate, as an instance immediate and part of the justice system.

That request was obstructed, delaying the lapses and processed to the First Military Court of Trial on November 8, 2021, which serves as an excuse to the President of the First Trial Military Court, Brigadier General Luis Alberto Galavis González to reject the appeal, arguing that the defendant assumed the facts without being coerced, which is objectionable, because he was led to the decision by pressure, deception and delay in time.

A few weeks later, on December 1, 2021, the retired young soldier was transferred to the Military Annex of the Western Penitentiary Center in Santa Ana prison, Táchira state.

The Appeal

Bustamante insists on appealing his case, seeking the processing of the different remedies provided by law to achieve the review and rectification corresponding to his case. Among the arguments he makes are: the sentence imposed by Judge Galavis González was that the detainee was in a state of defenseless, which remains, since the moment when the military public defender refused to carry out the requested appeal procedure, according to Art. 440 of the Organic Code of Criminal Procedure, violating articles 26, 27 and 49, in their various paragraphs, of the Constitution of the Bolivarian Republic of Venezuela.

In addition, there is the fact that fundamental aspects were omitted that were not discussed by the public defence, including that “in his capacity as having been an assimilated official (article 102 of the Organic Law of the Bolivarian National Armed Forces), withdrawn at his own request (Art. 107 Nr. 4 and Article 108 of the LOFANB, as well as article 32 literal b.), Regulations of Professional Officers and Non-Commissioned Officers assimilated to the FANB, since November 2017 it has the legal qualification of being civil and article 487 of the Organic Code of Military Justice, which specifies the “reduction of one third of the sentence”, must be applied.

Another of the considerations that Bustamante Molano makes is that he has been charged with the crime Instigation to Rebellion, so, being alone in the case, among other conditions, the circumstances indicated in Article 486 of the COJM are not met, therefore, he has been convicted of an act that did not occur as a crime.

Likewise, in the case of an “unconsummated crime”, according to article 387 of the COJM (attempt), another reduction of one third is applicable according to Art. 423 of the said Code.

Another aspect is that the decision to take at the opening (almost two and a half years) corresponded, among other variables: (a) that the estimation of the highest sentence for assuming the accused crime, under the conditions indicated above, would be less than the time deprived of liberty (2 years and 3 months) as there are also precedents and jurisprudence in this regard with cases including of groups and effective officers.

There is no doubt that for Bustamante the procedural delay or delay, deception, pressure and well-founded expectation of an acquittal sentence granting freedom at the opening of the trial, also represented a mechanism of coercion.

Personal situations of the first lieutenant cannot be ignored, such as the family aspect when they made it difficult or prevented him from fulfilling his role as father of two children aged 5 and 6 years, the role of husband and his personal freedom for more than two years, which together with the pandemic and the economic situation prevented them from physical contact and even see each other.

The Military Public Defender's Office, through the military public defender, is aware of various irregularities while he was prosecuted; days after he was arrested on May 17, 2019, his relatives found it necessary to file a complaint with the Ombudsman's Office, Táchira section, for his disappearance, which indicates evidence of non-compliance with due process.

Lieutenant Bustamante Molano does not give up his request for review and rectification of the sentence before the Court Martial as a superior instance to the Tribunal, considering the legal aspects mentioned above, proving that it is appealable as referred to in Articles 443 and 444 in paragraphs 2 (Illogicity), 3 (Defenselessness) and 5 ( Wrong application of a legal norm), without sparing another applicable one.

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