decision did not constitute effective judicial control because it did not include criteria that would
reasonably justify the need for the measure based on a situation of risk for the witnesses.
250. The counterbalancing measures implemented were adequate to safeguard the right of
the defense to examine witnesses. The defense had access to the statements made by these
witnesses during the investigation stage, so that they could be contested and, in the case of
“witnesses for the prosecution whose testimony had not been recorded during the investigation,
[this] motivated a divided accessory decision by the judges noting that their statements would
be considered insofar as they did not violate due process and would be assessed freely.”277 The
request by the Public Prosecution Service was accompanied by a sealed envelope containing
information on the identity of the witnesses for whom anonymity was requested; 278 their
statements were made in the hearing before the Oral Trial Court with the consequent
immediacy in the reception of the evidence, and the defense was given the opportunity to
examine them during the hearing and to know their identity, with the reservation that they
could not inform the accused (supra para. 234).
251. On the vital point of whether the convictions were based solely or to a decisive extent on
these statements (supra para. 247), there are differences between each of those convicted:
a)
Regarding the sentencing of Mr. Norín Catrimán, the testimony of anonymous
witnesses was not used as grounds for the declaration of his responsibility as perpetrator
of the offense of threat of terrorist arson against the owners of the San Gregorio
property. Although witness anonymity was allowed at the investigation stage, without
effective judicial control (supra para. 249), in this case it did not lead to a violation of
the guarantee established in Article 8(2)(f) of the Convention, because the testimony of
this witness was not decisive and, at the trial stage, specific counterbalancing measures
were guaranteed so that the defense could examine the anonymous witness and contest
his testimony (supra paras. 234 and 250).
b)
To the contrary, the criminal conviction of Mr. Pichún Paillalao as perpetrator of the
offense of threat of terrorist arson against the administrator and owners of the Nancahue
forest farm was based decisively on the testimony of an anonymous witness
(“anonymous witness No. 1”), because, even though reference is made to other types of
evidence, these alone would not have been sufficient to convict him, since the other
three persons who testified only knew about the events indirectly. Furthermore, the
judgment referred to an undated letter with supposed threats signed by Mr. Pichún, and
a cheque signed by the administrator of the Nancahue forest farm and made out to the
accused.279 It also mentioned a testimonial statement indicating that the Coordinadora
277
Cf. Judgment delivered on April 14, 2003, by the Angol Oral Criminal Trial Court, thirteenth considerandum (file of
annexes to the Merits Report 176/10, annex 16, folios 556 to 574).
278
Cf. Application of the Public Prosecution Service, Traiguén local prosecutor of September 2, 2002, addressed to the
Traiguén guarantees judge (file of annexes to the Merits Report 176/10, appendix 1, folios 4422 to 4424).
279
In the sixteenth considerandum of the judgment handed down on September 27, 2003, the Angol Oral Criminal
Trial Court indicated that “the following information indicates that the accused Pascual Pichún is guilty as the perpetrator of
the offense of threats against the owners and administrator of the Nancahue forest farm: […] [u]ndated letter signed by
Pascual Pichún Paillalao, as President of the Antonio Ñirripil community, addressed to Juan Agustín and Aída Figueroa Yávar,
requesting permission to thin out their pine forest, to pasture the community’s animals in the clearings in the forest and, if
there were no trees that needed to be thinned out, permission was requested to exploit 100 hectares of closed forest; the
letter added that some companies had agreed to grant this benefit, and it was well-known that some that had refused had
suffered harm that has caused alarm in the Lumaco sector, and they ‘did not want this to happen between us’ for any
reason. Also copy of cheque No. 1182177 on account No. 62300040301 of Juan A. Figueroa Yávar, signed by Juan A.
Figueroa Elgueta in favor of Pascual Pichún for the sum of $130,000 issued on February 26, 2001.” The other place in this
judgment where reference is made to the letter and the cheque is in subparagraph (C) of the eighth considerandum on the
evidence provided concerning the “threats of terrorist arson against the owners and administrators of the Nancahue forest
farm.” In the eighth considerandum, when referring to “[t]he documentary evidence […] incorporated,” it repeats the
content of the sixteenth considerandum. With regard to the cheque, there is no record of whether the court analyzed the
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