devices indicated in this same law (including “explosive or incendiary devices”).1 The
Court concluded that the said presumption that the intent exists “to instill fear in the
general population” when certain objective elements exist violates the principle of
legality recognized in Article 9 of the American Convention and the presumption of
innocence established in its Article 8(2); and concluded that its application in the
judgments that determined the criminal responsibility of the eight victims in this case
violated these rights protected in Articles 9 and 8(2) of the Convention.
6.
The motive for our disagreement with regard to the said paragraph 229 of the
Judgment is that it does not contain a reasoning of how that legal presumption, which
is not even alleged to be discriminatory, had a negative impact on the impartiality of
the judges. To the contrary, we consider that the impartiality of the judges who heard
these criminal trials is indisputably called in question as regards their decisions in the
judgments convicting the victims regarding which the Court declared the violation of
Article 24 of the American Convention.
7.
Indeed, the observations of the Inter-American Commission on Human Rights
(hereinafter “the Commission”) in its Merits Report should be recalled in relation to the
violation of impartiality that occurred because the judges who delivered the guilty
verdicts convicting the eight presumed victims “assessed and classified the facts on the
basis of prefabricated concepts about the context that surrounded them, and […]
convicted the defendants on the basis of those biases.” According to the Commission,
“the judges on the oral criminal trial court came to this case with preconceived notions
about the law and order situation associated with the so-called “Mapuche conflict,”
biases that caused them to take as proven fact that Region IX was the scene of a series
of violent activities and that the events in the case the court was hearing ‘fit into’ that
string of violent activities; it also caused the judges to copy, virtually verbatim, the very
same reasoning the court had already used in judging the individual conduct on trial in
an earlier criminal proceeding.”2
8.
Similarly, in its motions and arguments brief, the International Federation for
Human Rights (hereinafter “the FIDH”) argued that “there was subjective impartiality
(sic) in the judgments convicting the accused in the case of the Lonkos and in the
Poluco Pidenco case” and that it endorsed the Commission’s conclusion in its Merits
Report, to which it added that “the application of an undue punishment to the Lonkos
also reveals prejudice.”3 In its final arguments, the FIDH affirmed that “the use of
concepts such as “well-known and notorious,’ ‘it is well-known’ as basic elements to
justify the serious conflict between the Mapuche ethnic group and the rest of the
population, contained in the judgments in both the case of the Lonkos and the Poluco
Pidenco Case, reveal that the victims were not tried by an impartial court, because the
case was approached with a bias or a stereotype.” Furthermore, it affirmed that “[t]hese
preconceived notions […] are also reflected in the fact that the Angol Oral Court copied
the judgment that it had delivered in the first trial against the Lonkos Pichún and Norín,
in which it handed down an acquittal and then, in the judgment of August 24, 2004,
delivering a guilty verdict against the victims in the Poluco Pidenco case, it copied
precisely the part relating to why it considered that the acts it was examining were
terrorist offenses.”
1
Paras. 168 to 177 of the Judgment.
2
Merits Report No. 176/10, paras. 282 and 283.
3
The FIDH brief with motions, arguments and evidence (merits file, tome I, folios 497 and 498).
2