JOINT DISSENTING OPINION OF JUDGES
MANUEL E. VENTURA ROBLES AND EDUARDO FERRER MAC-GREGOR POISOT
CASE OF NORÍN CATRIMÁN ET AL. (LEADERS, MEMBERS AND ACTIVIST OF THE
MAPUCHE INDIGENOUS PEOPLE) v. CHILE
JUDGMENT OF MAY 29, 2014
(Merits, reparations and costs)
1.
We issue this dissenting opinion in order to provide the grounds for the reasons
we disagree with what was decided in operative paragraph 10 of the Judgment of May
29, 2014, in the Case of Norín Catrimán et al. v. Chile (hereinafter “the Judgment”),
delivered by the Inter-American Court of Human Rights (hereinafter “the Court” or
“the Inter-American Court”), in which it declared that it was “not incumbent on the
Court to rule on the alleged violation of the right to an impartial judge or court
established in Article 8(1) of the American Convention on Human Rights” (hereinafter
“the American Convention” or “the Pact of San José, Costa Rica”), based on the
considerations in paragraph 229 of the Judgment.
2.
In this opinion we will set out the reasons why we consider that the Court
should have established that Chile incurred in a violation of Article 8(1) of the
American Convention owing to the lack of impartiality of the courts that delivered
criminal convictions against the victims in this case; above all, because these
convictions were based on negative ethnic prejudices and stereotypes that had a
decisive impact on the analysis of elements of the criminal responsibility.
3.
For greater clarity, we will divide this opinion into the following sections: (1)
object of the disagreement (paras. 4 to 11); (2) the right to an impartial judge or
court in accordance with international case law (paras. 12-32); (3) the lack of
impartiality of the judges who heard the criminal proceedings against the victims in
this case (paras. 33-41), and (4) conclusion (paras. 42-45).
1. Object of the disagreement
4.
First of all, we believe that the reason given by the majority opinion in
paragraph 229 of the Judgment is insufficient, when it considers “that it is not
necessary to rule” on the alleged violation of the right to an impartial judge. The
reason given in the judgment is that the allegations of a violation “are closely linked to
the presumption of the terrorist intent ‘to instill fear [...] in the general population’ (a
subjective element of the definition), that as the Court has declared (supra paras. 168
to 177) violates the principle of legality and the guarantee of presumption of
innocence established in Articles 9 and 8(2) of the Convention, respectively.” On the
basis of this reason, the majority opinion affirms that “[t]he alleged violation of Article
8(1) should be considered subsumed in the previously declared violation of Articles 9
and 8(2).”
5.
In this regard, we consider it necessary to recall that the Court examined
whether the legal presumption of the subjective element of the offense established in
article 1 of the Counter-terrorism Act (Law No. 18,314) entailed a violation of the
principle of legality and the principle of the presumption of innocence, by establishing
that “[t]he objective of instilling fear in the general population shall be presumed,
save evidence to the contrary,” when the offense is committed using the means or