4. Conclusion
42.
The authors of this opinion consider that this reasoning – established by the
Court in paragraphs 227 and 228 of the Judgment — which is based on negative
ethnic stereotypes and prejudices, reveals that the judges had personal prejudices
with regard to the accused that were decisive in the establishment of their criminal
responsibility (essentially their participation in the criminal act or the special terrorist
intent). In other words, these personal prejudices had a decisive impact on the
analysis of the evidence of criminal responsibility. The facts described in the Judgment
reveal that those judicial decisions were reached in a context in which the social media
and segments of Chilean society had adopted unfavorable stereotypes and notions of
what they called “the Mapuche question,” the “Mapuche problem” or the “Mapuche
conflict” that delegitimized the land claims of the Mapuche indigenous people and, in
general, classified their social protest as violent or presented it as a cause of conflict
between the Mapuche indigenous people and the other inhabitants of the region. 61
43.
This reasoning set out by the courts in the judgments, which reflects the said
context, proves that the judges based their decisions on prejudices against the
defendants relating to their Mapuche indigenous ethnic origin and how the judges
perceived their social protest to claim their rights. This confirms that it was reasonable
for the defendants to have the impression that the courts that convicted them in the
specific cases lacked impartiality when handing down the guilty verdicts. In the instant
case, we are faced with a discriminatory difference in treatment that has no objective
and reasonable justification, does not seek a legitimate purpose and, in addition, there
is no proportionality between the means used and the end sought; all of which violates
the due process protected by Article 8(1) of the American Convention.
44.
In the context of dispensing justice, the discrimination against the eight victims
in this case — who were discriminated against based on negative ethnic stereotypes
and prejudices in relation to the Mapuche indigenous people and their territorial claims
— represents a serious violation of due process, because it deprived them of an
impartial judge. Thus, it is inconsistent that, having made a thorough analysis of the
content of the verdicts in the criminal trials and having verified these discriminatory
attitudes in the Judgment — by declaring the violation of Article 24 of the Pact of San
opposed to the Endesa project, because their land – which contains their ancestors, their
origins, their culture and their traditions – will be flooded when the Plant is built.
The acts took place in this context as a way of compelling the authorities to take decisions or
of imposing demands to halt the construction of the Plant.
20. That, to this end, on September 29, 2001, and March 3 and 17, 2002, two trucks and a
backhoe were set on fire and, subsequently, two more trucks; all vehicles working for Endesa.
The first incident involved several individuals all except one of whom wore hoods; they fired a
shotgun and hit the truck driver with a stick. The second incident involved at least two
individuals with their faces covered, one of them, armed with a shotgun, fired two shots into
the air. On the third occasion, a group of hooded individuals was involved, one of whom
carried a firearm and fired shots into the air. In all these incidents, inflammable fuel, such as
gasoline or a similar product, was used.
The illegal acts described above were carried out violently without observing the legal and
institutional order in force, resorting to previously planned acts of violence. Considering how the
events occurred, the place and the modus operandi, they were perpetrated to create situations of
insecurity, instability and anxiety, instilling fear in order to present demands to the authorities
under criminal pressure imposing conditions in order to achieve their objectives.
61
Cf. para. 93 of the Judgment.
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