c)
Víctor Manuel Ancalaf Llaupe was convicted by the investigating judge of
the Concepción Court of Appeal in a judgment of December 30, 2003, of three
criminal acts as perpetrator of the terrorist act consisting in to “[t]o place, send,
activate, throw, detonate, or fire bombs or explosive or incendiary devices of any
type, weapons or devices of great destructive power, or with toxic, corrosive or
infectious effects” (article 2.4 of Law 18,314).48 On June 4, 2004, the Concepción
Court of Appeal issued judgment in second instance, partially revoking the
judgment; acquitting Mr. Ancalaf of two of the criminal acts, and confirming the
conviction with the regard to one criminal act.49
34.
As the Court has indicated in this Judgment, at the actual stage of the evolution of
international law, the fundamental principle of equality and non-discrimination has
entered the realm of jus cogens. The whole legal structure of national and international
public order rests on it, and it permeates the whole legal system.50 In this regard, Article
24 of the American Convention prohibits de facto or de jure discrimination, not only with
regard to the rights recognized in this instrument, but with regard to all the laws adopted
by the State and to their application. In other words, it does not merely repeat the
provisions of Article 1(1) of this instrument as regards the obligation of State to respect
and ensure the rights recognized in this treaty without discrimination, but it establishes a
right that also entails the State’s obligation to respect and ensure the principle of equality
and non-discrimination in the safeguard of other rights and in all the domestic laws that it
adopts, because it protects the right to “equal protection of the law” so that it also
prohibits discrimination resulting from any inequality derived from domestic law or its
application.51 Article 1(1) of the American Convention proscribes discrimination, in
general, and includes prohibited categories of discrimination. Taking into account the
criteria developed previously, the Court established that the ethnic origin of an individual
is a category protected by the American Convention. This also means that, under Article
24 of this instrument, unequal treatment based on ethnic origin under domestic law or its
application is also prohibited.52
35.
In the following paragraphs, we analyze the criminal judgments convicting the
victims that we consider contain a language and reasoning that reveal that what is
involved is not the application of the presumption of the terrorist intent defined in the
Counter-terrorism Act in force at the time; rather, it is verified that these judgments
contain expressions or reasoning based on negative ethnic stereotypes and prejudices
and that this constitutes a violation of the guarantee of judicial impartiality.
A) The criminal judgment convicting Messrs. Norín and Pichún
48
Cf. Judgment delivered by the investigating judge of the Concepción Court of Appeal on December
30, 2003 (file of annexes to the Merits Report of the Commission 176/10 of the Commission, Annex 20,
folios 718 to 759).
49
Cf. Judgment delivered by the Concepción Court of Appeal on June 4, 2004 (file of annexes to the
CEJIL brief with motions, arguments and evidence, annex A.6, folios 1723 to 1733).
50
Para. 197 of the Judgment. Cf. Juridical Status and Rights of Undocumented Migrants. Advisory
Opinion OC-18/03 of September 17, 2003. Series A No. 18, para. 101, and Case of the Xákmok Kásek
Indigenous Community v. Paraguay. Merits, reparations and costs. Judgment of August 24, 2010, Series C No.
214, para. 269.
51
Para. 199 of the Judgment.
52
Para. 206 of the Judgment.
12
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