American Convention, in relation to Article 1(1) of this instrument, to the detriment of Segundo
Aniceto Norín Catrimán, Pascual Huentequeo Pichún Paillalao, Juan Patricio Marileo Saravia,
Florencio Jaime Marileo Saravia, José Benicio Huenchunao Mariñán, Juan Ciriaco Millacheo
Licán, Patricia Roxana Troncoso Robles and Víctor Manuel Ancalaf Llaupe.
B)
Right of the defense to examine witnesses (Article 8(2)(f) of the Convention)
in relation to the criminal proceedings against Messrs. Norín Catrimán, Pichún
Paillalao and Ancalaf Llaupe
1.
Pertinent facts
231. In the criminal proceedings against Messrs. Norín Catrimán, Pichún Paillalao and Ancalaf
Llaupe the identity of certain witnesses was kept secret.
a.
Proceedings against Messrs. Norín Catrimán and Pichún Paillalao
232. In the proceedings against Messrs. Norín Catrimán and Pichún Paillalao, the Traiguén
guarantees judge, at the request of the Public Prosecution Service, ordered that the identity of
two witnesses be kept secret and prohibited taking photographs of them or recording their
image by any other means,256 based on articles 307 and 308 of the Criminal Procedural Code
and articles 15 and 16 of Law No. 18,314.
a)
The 2000 Criminal Procedural Code establishes the obligation of the witness to
identify himself and provide all his personal data,257 except when the “public indication of
his address could entail danger for [him] or another person,” in which case “the President
of the chamber or the judge, as applicable, may authorize the witness not to answer this
question.” Moreover, if the witness avails himself of this right, “the disclosure, in any
form, of his identity or information that would lead to this, shall be prohibited,” and this
shall be ordered by the court (Article 307). Also, the Code stipulates that the court may
order “special measures designed to protect the safety of the witness who requests this”
in “specific serious cases,” which “may be renewed as often as necessary” and, similarly,
establishes that “the Public Prosecution Service, ex officio or at the request of the
interested party, shall adopt any measures required in order to provide the witness,
before or after he has given his testimony, with appropriate protection” (Article 308).
b)
Article 15 of Law No. 18,314 contains norms that supplement “the general rules on
witness protection of the Criminal Procedural Code.”258 They establish that “if, during the
investigation stage, the Public Prosecution Service considers that, owing to the
circumstances of the case, there is a real risk to the life or physical integrity of a witness
or an expert witness” or of certain individuals to whom such persons are related by blood
or marriage, or through ties of affection, “it shall order, ex officio or at the request of the
interested party, any special measures of protection that are required […] to protect the
identity of those who intervene in the proceedings, their home, profession and place of
256
Cf. Application by the Public Prosecution Service, Traiguén local prosecutor, of September 2, 2002, addressed to the
Traiguén guarantees judge, requesting, among other matters, “[t]hat no mention is made in the investigation files of the
first name, last name, profession or trade, place of work, or any other information that could serve to identify the witnessed
who appear in the investigation as ‘Witness No.1 RUC 83503-6 and ‘Witness No.2 RUC 83503-6,�� using these codes as a
mechanism to verify their identity and eliminating their personal data from the said records,” and Decision issued on
September 3, 2002, by the Traiguén guarantees judge (file of annexes to the Merits Report 176/10, appendix 1, folios 4422
to 4424).
257
Article 307 of the Criminal Procedural Code establishes that: “[t]he statement of the witness shall commence
be indicating his personal information, especially his first names, last names, age, place of birth, civil status,
profession, trade or employment, and residence or domicile […].”
258
Article 15 of Law No. 18,314 establishes that: “[n]otwithstanding the general rules on witness protection of the
Criminal Procedural Code […].”
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