Defenders of Kintuante: Analysis by the advocacy of the trial and sentence convicting Machi Millaray Huichalaf, Chile, November 2014
By Research and Defence Centre SUR.
Link to original text: Mapuexpress
On Thursday November 13 the verdict was given in the trial held against two Machi, Millaray Huicahalaf and Tito Cañulef and two other defenders of "Kintuante" (sacred place for the communities in the area) accused of Arson on the estate Pisu Pisue, before the second Chamber of the Court of Criminal Oral Judgment in Valdivia.
The acusation was led by of the Public Ministry of Los Ríos headed by prosecutors Sergio Fuentes and Juan Levedina along with the complainants of the Victims Unit of the Ministry of Interior and the Administration of Ranco, ie a triple representation of the state against the 4 Mapuche on trial, creating a sort of accusatory inflation, which hinders the adequate protection of the community members.
The defense of the accused consisted of Luis Soto from the Public Criminal Defense of Los Ríos and lawyers from the Center for Research and Defence South (CIDSUR) Karina Riquelme, Sebastián Saavedra and Paul Ortega.
The defense chose not to submit rebuttal evidence because they believe that the participation of the accused in the acts on trial could not be established.
This decision had its foundation in the vagueness of the evidence because prosecutors presented evidence unlawfully obtained by the National Intelligence Agency, through the departments of Police Intelligence Research, who noted that they carried out investigations against social leaders and Mapuche organizations as being "hostile" autonomously, ie without guidance from prosecutors or court order.
In these eleven days of trial, both the prosecution and the plaintiffs presented about 45 witnesses and experts among them the victims, firefighters, police officers from the stations in El roble Carimallin and Maihue, health clinic officials from Entre Lagos and dozens of officials of the PDI from Rio Bueno, La Union, Osorno, Puerto Montt, Santiago and Temuco. Besides profuse documentary evidence and material evidence which contributed to unnecessarily extend the trial, since in the opinion of the defense, nothing related the accused with the alleged crime or they related to other facts or situations not constituting crimes, included in the evidence provided by the accusers were references to the personal life of the accused, their readings, thoughts and other issues that are not a crime and belong to private life and that any citizen hopes will be respected for belonging to their sphere of intimacy.
Of the officials of the PDI the statement of more than six hours of Alexis Lara stands out. This police officer was responsible for finding the alleged perpetrators of the fire. He was also in charge of at least nine previous investigations which were added to the cause for which the community members were investigated. The defense learned of this situation only on the last day of the preparatory hearings, a "trick" that falls into a gray area that the courts have chosen not to elucidate, although some courts have pointed out that it is unlawful, in this case the Court of Appeals of Valdivia decided to include it in this the trial, causing a substantial injury to the right of defense of the accused.
This is much evidence, that was kept secret to the accused because it was collected in other investigations, which is included in the accusation "between cocks and midnight" by a surprise last-minute grouping. The purpose is obviously to prevent the defense to know the evidence and therefore be unable to defend against it. It is a pending issue for the judiciary, unacceptable for the defenses, but in this case supported by the Court of Appeals of Valdivia, which overrides any cleaning up of the evidence performed by the Court of Guarantee of Rio Bueno.
This position of the Court of Appeals, to maintain this jurisprudential trend, seriously affects the whole model of Chilean justice, as devoids the meaning of a key instance as is the preliminary hearing, which aims to clean up the trial of intrusive elements or violations of constitutional guarantees.
For example, they allowed police officers who worked under the Law No. 19,974, which regulates the functions of the National Intelligence Agency to declare and present their "theories" and that, in the cross-examination by the defense they will be safeguarded by the secrecy of their activities.
In this case they were in charge of monitoring the suspects and other citizens, obtaining telephone interceptions and gathering evidence in proceedings outside the guarantees envisaged by the Criminal Procedure Code. There is therefore de facto a "state of exception", as by invoking this Act which establishes the National Intelligence System (designed for other purposes) the constitutional guarantees for the Mapuche are suspended.
But that's not all, one of the curiosities of the evidence of Public Prosecutions was the declaration of a PDI psychologist who presented an analysis about the dangerous thoughts of the community members. This is what is called criminal copyright, which aims to criminalize people and not pursue acts at odds with the law.
He also analyzed educational materials on teaching the Mapudungun language, which he said would constitute the fundamental ideological indoctrination of new generations of Mapuche "very likely to engage in violent activities against dams, institutions and the Chilean state". A real scandal, to criminalize the recovery of a language, which is a right recognized by international law and even by the Chilean Constitution.
The verdict condemns the machi Millaray Huichalaf Pradines as a "concealer" and absolves the other defendants.
This verdict is highly symbolic, since there is no incriminating evidence, still they choose to condemn, in a divided vote, who appears as the most important public figure of the defense of the Kintuante, who also has an important spiritual function.
The question is why this sentence ?. We should note that the two women members of the tribunal voted for this conviction, who said she could not but know; she had the newspapers of the region, which reported the facts. Do not forget that there is the right to information, but in this case, apparently it is dangerous for the Mapuche to inform themselves on the topics that interest them, they can be convicted of covering up crimes.
It is true, there is still the possibility for Machi Millaray Huichalaf of appealing against this ruling, in short, that the courts amend the judgment. The signal sent by both judges is unmistakable, being female, free, a spiritual leader, a political spokesperson opposed to the energy projects, defender of sacred sites, is dangerous.
Center for Research and Defense SUR.
Sunday, November 16, 2014
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