The illicit acts mentioned are part of a process of recovering land for the Mapuche people,
which has been carried out through de facto means, without adhering to the legal
institutions in force. They have resorted to acts of force which are previously planned,
coordinated, and prepared by aggravated groups that seek to create a climate of
insecurity, instability, and fear among various sectors in regions eight and nine. These
actions can be summarized as making disproportionate demands and the exertion of
pressure by groups belligerent to the business owners and property owners. The latter
are warned that they will suffer all kinds of attacks if they do not meet the demands.
Many of these threats have materialized in physical attacks, robberies, thefts, arson,
damages to property and land takeovers against individuals and the property of various
18
people involved in agriculture and forestry in this part of the country.
28. The petitioners added that the conviction was issued by a court that lacked competence
because when the crimes occurred, procedural reform was in effect in the judicial district
where the trial took place. However, since the special law giving the court such powers was not
in effect yet, that court did not have jurisdiction. That law was enacted in 2002, whereas the
events occurred in 2001. Therefore there was a violation of the right to freedom from ex post
facto laws embodied in Article 9 of the Convention. That is, Mr. Norín and Mr. Pichún were
convicted of a crime that did not then exist in Chilean legislation, that of making terrorist
threats.
29. Regarding the requirements for admissibility of the petition under the Convention, the
petitioners stated that domestic remedies have been exhausted.
C.
The State
30. In its reply of November 29, 2004, the State made the general observation that in its view,
the petition applies a mistaken and confusing method of analysis, reaching conclusions based
on intentional suppression of the context in which courts conduct their reasoning. The State
added that the petitioners forget that internal procedural rules demand that all judicial
decisions contain a clear, logical, and complete explanation of the facts, circumstances, and
evidence that are considered by the court during the trial. The State added that, consequently,
a serious legal analysis must necessarily be done regarding the decision as a whole, and not
regarding phrases or partialities, which is the only way to know or reveal the judicial truth
established therein.19 For this reason, the State analyzed of the various infractions alleged,
presented a corollary on the criminal procedure reform process, and presented its specific
requests.
31. Regarding the transgression over the presumption of innocence, the State recalled that this
principle is recognized in the national Constitution, in the Criminal Procedure Code, and in the
text of several pieces of domestic legislation. As to the petitioners’ questioning of the Supreme
Court’s July 2, 2003 decision to grant the appeal based on procedural violations filed by the
Public Ministry and the private accusers, the State referred to the grounds and effects of a
procedural appeal as set forth in the Criminal Procedure Code. In this vein, it stated that an
isolated interpretation of Article 297,20 which is the basis for the petitioners’ reasoning,
necessarily leads to mistaken conclusions because that rule must be viewed in conjunction with
other precepts to which it is closely linked. Article 342 of the Criminal Procedure Code indicates
what a judicial decision must always contain, be it an acquittal or a conviction. This includes a
clear, logical, and complete explanation of each of the acts and circumstances that were
18
Judgment issued by the judges of the Retrial Court of the Angol Criminal Trial Courthouse dated September 27,
2003. Whereas clause 13 (5).
19
State’s brief of August 15, 2003, p. 2
20
Article 297 of the Criminal Procedure Code, Assessment of the evidence. The courts shall assess the evidence freely,
but shall not contradict the principles of logic, maxims of experience, or scientifically supported knowledge.
In its legal reasoning, the court must address all of the evidence produced, even that which it may have dismissed,
indicating in such cases the reasons for doing so. The assessment of the evidence in the judgment shall require an
indication of the mean or means of evidence whereby each of the facts or circumstances were proven. This legal
explanation must allow one to reproduce the reasoning used to reach the conclusions drawn in the judgment
6