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CHILE: ‘Faceless Witnesses’ and the Rights of Mapuche Indians

Gustavo González

SANTIAGO, Apr 17 2003 (IPS) - Indigenous leaders in Chile and the defence lawyers representing three Mapuche Indians who spent 18 months in prison before being acquitted of arson charges have protested the use of ”faceless” or anonymous witnesses, who testifed against the defendants.

According to lawyers and indigenous activists, the misuse of anonymous witnesses violated the right of the three defendants to a legal defence, in what was merely the latest development in a longstanding pattern of discrimination by the justice system against Chile’s indigenous peoples.

Defence attorney Rodrigo Lillo and José Nain, a traditional leader of Chile’s Mapuche Indians, told IPS that the prosecutors had ”astutely” invoked the country’s anti-terrorism legislation in order to use anonymous witnesses, for the first time in a Chilean court room.

The ‘loncos’ or traditional Mapuche chiefs Pascual Pichún and Aniceto Norín, and indigenous rights activist Patricia Troncoso, were acquitted in a controversial trial held in the city of Angol, 575 kms south of Santiago. However, the prosecution is appealing the verdict.

The defence lawyers for the three defendants plan to file a suit against the Chilean state demanding the payment of damages for the 18 months that Pichún, Norín and Troncoso spent in pre- trial preventive detention.

The three were acquitted on Apr. 9, after an oral trial that lasted one and a half weeks. But the controversy will continue to rage for months or even years.

The case also took on political overtones, because one of those involved was Juan Agustín Figueroa, a former minister of agriculture under president Patricio Aylwin (1990-1994) who now sits on the Constitutional Court created by the dictatorship of Augusto Pinochet (1973-1990).

The two ‘loncos’ and Troncoso remain behind bars, awaiting another trial in which they will be charged with illicit association, based on their membership in the Arauco-Malleco Coordinating Committee, one of the more radical Mapuche organisations in this Southern Cone country.

Pichún, Norín and Troncoso were arrested in late 2001 and charged with carrying out an arson attack against the proprietor’s house on the Nancahue estate, which belongs to Figueroa, and 80 hectares of pine forest in the rural municipality of Traiguén, in the southern region of Araucanía.

That region is one of the focal points of long-standing land conflicts in southern Chile, which erupted once again in 1992 and intensified in 1998, when a number of Mapuche communities began to occupy land worked by logging companies, claiming it as part of their ”ancestral” territories.

According to local and international human rights groups, police have used excessive force against Mapuche demonstrators, including women and children, during protests and police operations.

The London-based rights watchdog Amnesty International has stated that the Mapuches lack equal access to justice in Chile, and have suffered abuse of power by police and discrimination at the hands of judges who do not respect their culture or their language, Mapudungún.

In its annual reports on human rights around the world, the U.S. State Department has also called attention to legal irregularities surrounding the situation of Mapuche detainees and abuses suffered by women and children.

In addition, the United Nations Committee for the Elimination of Racial Discrimination has condemned the Chilean government for the discrimination it exercises against indigenous people.

More than one million of Chile’s 16 million people are members of indigenous communities like the Mapuche – the most numerous in the country – and the Aymara.

Mapuche leaders and human rights activists at home and abroad complain that due to illegal seizures of land belonging to indigenous communities, large numbers of Mapuche people have been forcibly displaced from their land, and because of their extreme poverty have been forced to move to cities in search of a livelihood.

Due to the lack of redress in courts regarding Mapuche claims to their ancestral territory, the communities began to stage peaceful occupations of disputed land, demanding recognition as the legitimate owners.

Activists say the Chilean government responded by militarising Mapuche areas, and declaring martial law in a number of indigenous communities.

More than a thousand Mapuche people have been arrested over the past few years for their involvement in the struggle for their land rights.

Reforms of the legal system under the government of Eduardo Frei (1994-2000) incorporated oral trials and created a public prosecutors’ office to expedite the administration of justice. The reforms have begun to enter into effect in stages under the current administration of President Ricardo Lagos, and are being used in test cases in courts in several regions, including Araucanía.

An anti-terrorist law enacted during the Pinochet regime and amended in the early 1990s, which classifies arson as a ”terrorist” offence, was also applied for the first time in an oral trial in the proceedings against the three Mapuche defendants.

The prosecutors used the testimony of witnesses whose identity was kept secret, based on legislation that provides for the protection of witnesses in cases involving drug trafficking and terrorism charges.

Prosecutor Raúl Bustos, who was seeking sentences of between 15 and 25 years for the accused, called three ”faceless witnesses” to the stand, who testified behind a folding screen. They were also supposed to talk into microphones that disguised their voices, but that was not possible due to technical failures.

Although Bustos and his assistants spent a year and a half working on the case, they failed to present evidence that Pichún, Norín and Troncoso were the ”material authors” of the alleged arson attack of which they stood accused, according to the verdict read out by the president of the court, Valdemar Koch.

The plaintiffs blamed the verdict on ”a lack of professionalism” on the part of the prosecutors, an allegation that Bustos denied.

But the evidence presented was so weak that the defence lawyers did not even bother to call up witnesses of their own.

Aucán Huilcamán, ‘werkén’ (spokesman) for the Council of All Lands, Chile’s leading indigenous organisation, called in an open letter to President Lagos for the resignation of the Araucanía regional prosecutor Esmirna Vidal and prosecutors Alberto Chifelle and Francisco Rojas, who worked on the case with Bustos.

Huilcamán accused the prosecutors of ”abuse of power, racism and discrimination.”

José Camilo Vial, the bishop of Temuco, the capital of Araucanía, said the three defendants deserved indemnification for the year and a half that they ”unjustly” spent in prison.

Confidence in the technique of using anonymous witnesses could be lost due to the way it was ”misused” in this first test case, lawyer Felipe Marín, with the Criminal Justice Programme at the Diego Portales University, a private institution, said in an interview with IPS.

”It has been inappropriately applied, because there are two things at stake here: on one hand, the protection of witnesses to allow them to testify without putting their lives in danger, and on the other hand, the right to a defence,” he said.

”It is one thing for the witnesses to be behind a screen to keep the public from recognising them, but it is something else entirely for the defence lawyers to not know who they are questioning,” as occurred in Angol, said Marín.

”Chile’s laws do not permit a situation in which the defence lawyers are unaware of the identity of the witnesses, which amounts to a grave infringement of the right to a defence,” Rodrigo Lillo at the Catholic University of Temuco, who is one of the Mapuche defendants’ lawyers, told IPS.

Under such circumstances, he explained, lawyers ”cannot ask questions that would clarify the witness’s veracity and reliability, because they do not know their identity.

”Access to justice by Chile’s indigenous peoples has been severely damaged by their lack of familiarity with legal questions…and the misuse of the justice system by people who have abused the Mapuches and their rights,” Lillo added.

According to the lawyer, the judiciary tends to act in an ”erroneous and discriminatory manner” against indigenous people, and the office of the public prosecutor ”used strategies that violate Chile’s laws…and the right to a defence,” although ”that did not achieve the effect they wanted, which was to convict the ‘loncos’ of arson.”

Despite the acquittal of the three defendants, cases like this one will make indigenous people even more reluctant to go to court in efforts to reclaim their land, said Lillo.

Nain, another ‘werkén’ of the Council of All Lands, remarked to IPS that his organisation had hoped that the legal system reforms would take into account Mapuche culture and incorporate respect for indigenous traditions and forms of justice in courtroom procedures in Araucanía.

But that has not occurred, he said.

The fact that Pichún, Norín y Troncoso were charged under the anti-terrorism law, and the way it was applied in this case, is another demonstration of ”the political persecution (of the Mapuches) by this country’s courts,” argued Nain.

Mapuche organisations are demanding the release of all indigenous political prisoners, the implementation of an independent and impartial judicial system, the de-militarisation of the Mapuche territories, and the recognition of the Mapuche people as a people in their own right.

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