3.
Criminal procedural laws
101. Chile modernized its criminal procedural laws in 2000. On September 29 that year,
Congress promulgated Law No. 19,696, which established the Criminal Procedural Code to
replace the 1906 Code of Criminal Procedure.106
102. According to the evidence in the case file, the new Code meant passing from a criminal
procedural system of an inquisitorial nature to one of an adversarial nature. 107 This system is
characterized by the central role of the oral public trial before oral criminal trial courts.108 The
principles of the oral and public nature of trials are regulated in articles 291 and 289 of this
Code respectively. In addition, the evidentiary activity is governed by the principle of
immediacy, which means that, as a general rule, it must be submitted during the hearing of the
oral trial, save for the exceptions established by law.
103. The new Code gradually entered into force in the different regions of Chile. Its article
484 established the dates as of which it would enter into force for each region. The criminal
proceedings held against Víctor Ancalaf Llaupe were processed under the 1906 Code of Criminal
Procedure (Law No. 1853), because the acts for which he was tried occurred in the Region of
Bío Bío before the entry into force of the new Criminal Procedural Code in that region. In
contrast, the criminal proceedings held against the other seven presumed victims in this case
were governed by the 2000 Criminal Procedural Code (Law No. 19,696), because the acts for
which they were tried occurred in the Region of Araucanía following the entry into force of the
said code in that region.
104. Article 78 of the 1906 Code of Criminal Procedure109 established the confidentiality of the
preliminary proceedings, and its article 189 contained provisions on the confidentiality of the
identity of witnesses “with regard to third parties” and “special measures designed to protect
the safety of the witness” (infra para. 235). Article 182 of the 2000 Criminal Procedural Code
established the confidentiality of “certain actions, records or documents […] with regard to the
accused or others who intervene in the proceedings.” In addition, articles 307 and 308 regulate,
respectively, the authority of the “court” to order the “prohibition” “to disclose” the “identity” of
the witness and “to order special measures designed to protect the safety of the witness” who
requests this (infra para. 232.a). Article 15 of Law No. 18,314 in force at the time of the events
of this case regulated the authority of the Public Prosecution Service to order “special measures
of protection [… t]o protect the identity of those who intervene in the proceedings,” which can
be reviewed by the judge responsible for ensuring that the rights of the accused are respected
(juez de garantía) at the request of those who intervene in the proceedings; and article 16
regulated the authority of the court “to decree the prohibition to reveal […] the identity of
protected witnesses or expert witnesses” (infra para. 232.b).
106
Cf. Law No. 19,696 which “[e]stablishes the Criminal Procedural Code,” published in the official gazette on October
12,
2000
(file
of
helpful
evidence
presented
by
the
State,
folio
1067),
available
at:
http://www.leychile.cl/Navegar?idNorma=176595&buscar=19696, and Law No. 1853 “Code of Criminal Procedure,”
published on February 19, 1906 (file of annexes to the CEJIL motions and arguments brief, annex B.5., folios 1858 to
2006), available at: http://www.leychile.cl/Navegar?idNorma=22960&buscar=ley+1853
107
Cf. Statement made by expert witness Claudio Fuentes Maureira before the Inter-American Court during the public
hearing held on May 29 and 30, 2013, and affidavit prepared on May 17, 2013, by expert witness Claudio Alejandro Fierro
Morales (file of statements of presumed victims, witnesses and expert witnesses, folio 3). Similarly: Case of Palamara
Iribarne v. Chile. Merits, reparations and costs. Judgment of November 22, 2005. Series C No. 135, para. 122.
108
These are collegiate courts where decisions are taken by three judges. Cf. Judgments delivered on September 27,
2003, April 14, 2003, and August 22, 2004, by the Angol Oral Criminal Trial Court (file of annexes to the Merits Report
176/10, annexes 15, 16 and 18, folios 508 to 554, 555 to 574 and 607 to 687), and statement made by expert witness
Claudio Fuentes Maureira before the Inter-American Court during the public hearing held on May 29 and 30, 2013.
109
Code of Criminal Procedure promulgated on February 13, 1906 (file of annexes to the CEJIL brief with motions,
arguments and evidence, annex B5, folios 1858 to 2006).
37
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