Catrimán and Pichún Paillalao in the judgment with the guilty verdict in the Poluco
Pidenco case.
191. CEJIL alleged the violation of the “right to equal protection […] in relation to the general
obligation to respect rights” (Articles 24 and 1(1) of the Convention), and of judicial guarantees
(Articles 8(1), 8(2)(c), 8(2)(d) and 8(5) of the Convention), to the detriment of Víctor Manuel
Ancalaf Llaupe:
a)
Regarding the principles of equality and non-discrimination, it indicated that it
“endorsed” the observations made in this regard by the Commission. Referring to the
criminal proceedings against Mr. Ancalaf, it argued that “the existence of a discriminatory
bias was evident during its processing,” and that his case “illustrated the State’s practice”
of “selectively applying […] the anti-terrorist legislation against the members of the
Mapuche people.” It argued that “[t]he stereotype of the Mapuche was revealed not only
during the investigation [in the case of Mr. Ancalaf], but was also reflected in the
judgments delivered by the domestic courts as a decisive element for convicting the
Lonkos, the Werken and, in general, the Mapuche leaders and activists.” It affirmed that
“[t]aking into account a person’s membership in an ethnic group and, on this basis,
classifying an act as a terrorist action” without the “difference in treatment” being
justified, constitutes “an act of racial discrimination.” It indicated that it was “the
application of the Counter-terrorism Act that produced the discrimination and not the law
in itself.” It argued that its application in Mr. Ancalaf’s case should “necessarily be
understood in a context of the criminalization of the Mapuche people’s claims,” and that
“different national and international bodies have recognized the existence of this context
of discrimination.” It affirmed that the State “has used ‘ethnic origin’ as a criterion to
establish differences between individuals, inasmuch as the selective application was
addressed at the members of a specific ethnic group” without justification;
b)
With regard to these judicial guarantees, CEJIL argued that the criminal
proceedings against Víctor Ancalaf Llaupe violated his guarantees contained in Article 8(1)
(right to be heard by an impartial court and obligation to substantiate the accusation),
8(2)(c) (adequate means for the preparation of his defense), 8(2)(d) (right to be assisted
by legal counsel of his own choosing) and 8(5) (the public nature of the proceedings) of
the Convention, as well as the obligation established in Article 2 of this instrument. It set
out the reasons why it considered that “the trial and subsequent conviction of Mr. Ancalaf
Llaupe under a regime with inquisitorial characteristics – such as the one that was in
force at the time of the events – resulted in a series of violations of the guarantees of
due process.” Regarding the alleged violation of Article 8(1), in relation to Articles 1(1)
and 2 of the Convention, it argued that, under this regime, “[t]he structure and
regulation” of this inquisitorial criminal system did not guarantee his right to be heard
by an impartial judge or court, because “the charges were brought by a judicial decision
of the judge who had headed the preliminary investigation and who then delivered the
judgment.” It affirmed that, in the criminal proceedings against Mr. Ancalaf Llaupe, the
judge who conducted the investigation, then presided the trial, and delivered the
judgment convicting him. It also indicated that the Concepción Court of Appeal “failed to
comply […] with the obligation to provide sufficient reasoning to safeguard the right [of
Víctor Ancalaf] to due process,” because it decided that he had taken part in the facts
and established his criminal responsibility for them “based above all on the testimony of
anonymous witnesses.” The arguments of CEJIL with regard to the alleged violation of
Article 8(2)(c) and 8(5), in relation to Articles 1(1) and 2 of the Convention, refer to the
confidentiality of the preliminary proceedings established in the former Code of Criminal
Procedure and to the fact that all the proceedings in the trial were in writing. Regarding
the alleged violation of Article 8(2)(d) in relation to Article 1(1) of the Convention, CEJIL
stated that on the two occasion on which Mr. Ancalaf Llaupe made a statement before
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