Court allows participation of "faceless witnesses"

Beginning of historic case against mapuche chiefs

01 April, 2003

Just as in the Peruvian courts in the time of Alberto Fujimori, behind a screen and using a voice disguiser, two "faceless" witnesses for the prosecution will give evidence in the next few days against the three mapuche leaders who stand accused of the crime of "terrorist threats and arson" perpetrated in 2001, in various disputed estates in Traiguen in the province of Malleco.

This was, without doubt, one of the most talked about and controversial points of the emblematic trial which began yesterday in Angol and which aroused the interest of a variety of local, national and international media, including observers from Amnesty International, based in London. Journalists from Switzerland, Germany, Belgium and France, as well as two representatives of the aforementioned human rights organisation were in the public gallery with the aim of understanding in detail the historic trial of two lonkos (chiefs) from the area, the first to take place in La Araucanía under the Anti-terrorist Law created under the Pinochet regime.

Oral Testimony

After ten hours and amidst great anticipation on the part of the press, Pascual Pichún Paillalao, 49, lonko of the Temulemu community, Segundo Aniceto Norín Catrimán (42) lonko of the Didaico community and Patricia Troncoso Robles (34), arrived in court. They are all accused of a series of terrorist attacks carried out in December 2001, principally the arson attack on the estate of Nancahue in Traiguén, which destroyed the official home of the former Minister of Agriculture, Juan Agustín Figueroa; and the attack which took place in San Gregorio, in which more than 80 hectares of pine forest were consumed by fire, causing millions of pesos worth of loss.

The three accused remained calm and serene, although Patricia Troncoso was visibly affected as she entered the courtroom and came face to face - after nearly a year in Victoria prison - with the many "brothers and sisters" who had attended the trial in order to show their support for the accused. At the same time, about 70 mapuches - led by the werken (messenger) Juan Pichún, son of one of the lonkos, took part in a vigil outside the courtroom as a way of showing support for the three indigenous defendants.

Incidents

Under a heavy security operation carried out by members of the Carabineros (police) and Gendarmerie, one of the most eagerly awaited trials in the history of the so called "indigenous conflict" began. After a long debate, during which there were three recesses, the court, headed by the magistrate Waldermar Koch, Luis Sarmiento and Georgina Solís, authorised the media to photograph, record and film the opening and closing statements of the trial, but not the presentation of evidence, due mainly to security factors and to the large number of people in the gallery.

After overcoming this impasse, the prosecutors in charge of the investigation, Raul Bustos, Alberto Chiffelle and Francisco Rojas, as well as the two government lawyers and one for the ex minister Juan Agustín Figueroa, asked for the court's protection for two witnesses who have been reluctant to give evidence for fear of reprisals. After the second debate, the magistrates agreed to the prosecution request, affording both witnesses the protection of being allowed to give evidence from behind a screen and using devices which distort the voice, just as in the notorious Fujimori courts in Peru.

After a morning taken up with practicalities, the trial began at 1430. At the resumption, the defence - represented by Sandra Jelves, Carmen Gloria Ormeño, Miriam Reyes, José Martínez, Jaime Madariaga, Rodrigo Lillo and Jose Arraya - objected to the use by the prosecution in their opening statement of a data show system, a curtain in the court room on which they proposed to show images to explain to the court the case for the prosecution with respect to the violent activities carried out by the accused.

After ruling on this objection, the judge decreed that the prosecution would have to begin its opening statement without the visual aid they had prepared, since this method went against the principle of "oral testimony" which the new penal code seeks to maintain. In this fashion, after a succession of incidents lasting six hours, the prosecution proceeded to open its case.

Prosecution: "They manipulate the history of Chile

In his speech, the prosecutor Raul Bustos foolishly pointed out that "it is not the mapuche people who are on trial here, but rather certain people who have taken a radical stance which has lead them to commit the crimes set out in the investigation." He also added that the accused do not represent the mapuche people, but rather that they "constitute elements that have taken the path of crime in the name of reclaiming land".

The case for the prosecution "and which can be applied to the whole of the mapuche conflict in the region, is based on the following" explained the prosecutor.

Firstly "there exists a manipulation of the history of Chile, ideas which are at the service of the propaganda of these small radical groups. This manipulation consists of telling people and making them believe that mapuches are different from Chileans, as well as asserting that the prosecutors are racist, that the judges are also racist and that the Chilean state is also racist," said Bustos, and even quoted from a book by José Bendoa (History of the Mapuche People, 1982).

Secondly, "they spread the idea of the reclamation of land as a right, in order to then plant the idea that in these activities they do not recognise the rule of law and so any action, including committing crimes is valid in order to achieve its objectives. In this way, Temulemu and Didaico have become a territorial space ruled by a small group on whom people depend who wish to enter or leave these places, and those who live there.

Fourthly, victimisation. "They call themselves 'mapuche political prisoners' and as a consequence they do not accept that they have committed any offence. They consider themselves victims of the racist Chilean state and therefore, however serious their actions, they cannot be subject to the law."

Fifthly, they use the idea of "declared disputed territory". By this means, they unilaterally decide what territory or estate will cease to belong to its owner and they declare it disputed territory. From this, they begin a series of actions which include threats, the harrassment not just of large proprietors but also of many small ones, according to the prosecutor, which finally turn into serious crimes like the one which took place with the fire in the house and woods of Nancahue and the woods of San Gregorio which have been the subject of this investigation."

Sixthly "there's no respect for the decision of the community. If an indigenous community takes a vote on something, it doesn't matter whether the violent faction wins or loses, since they impose their will in any case, by means of violence and intimidation and threaten the rest of the community that doesn't share these methods.

Finally "they use the idea of infiltration a way of organising. They don't always belong to the mapuche ethnic group, like the accused Troncoso Robles, who took part in violent actions and who doesn't belong to the ethnic group as she is not a mapuche." The prosecutor Bustos ended his controversial speech with a question "what can the victims of terrorist attacks do?"

Defence demands acquittal

In their opening statement, the mapuche leaders' defence lawyers rejected the prosecution's theory and the arguments of the accusation regarding the existence of offences under the law 18.314 ("anti-terrorist").

In the first of 12 hearings to listen to the accusations against Pascual Pichun Paillalo, Patricia Troncoso Robles and Segundo Aniceto Norin Catriman the defence responded to the allegations of the state prosecutor Raúl Bustos Saldias "He has made accusations without specifying any facts which point to a crime" said the defence lawyers Miriam Reyes and Carmen Gloria Ormeño before the court.

The prosecutor for Angol accuses Pichún and Troncoso of a terrorist arson attack and threatening terrorist attacks and she is also accused of starting a forest fire. Norín is also charged with terrorist arson and threatening a terrorist attack, according to the opening statement, but the prosecution will not be able to present concrete evidence to support these accusations in the course of this trial" said Reyes.

So it was that the prosecution asked the court for "a judgement that was appropriate and in proportion to the charges", the defence demanded that they all be acquitted "since the offences cited are not covered by the anti-terrorist law and it has not been proven that Pichún, Troncoso and Norín took part in them". Miriam Reyes stated that "terrorist offences, according to the first article of the law which governs them, are those which affect, or are intended to affect, the whole of the population, which is not the case here, since the population is all over the country and not just on one private estate.

For his part, Pablo Ortega rejected the attempts of the prosecution to apply the anti-terrorist law on the grounds of the "fear" caused to the population and the "drop" in investment brought about by the conflict as indicated bby the latter in his opening statement. "In order for a crime to be considered a terrorist offence, we must not consider fear amongst the population or economic hardship brought about. If that were the case, rapists or the people in charge of Inverlink would also have to be subject to this legislation" he pointed out.

At the end of this first hearing, the defendants were moved to the Penitentiary Centre in Angol, where they will remain until the second day of this historic case against leading members of the Wallmapu.

By Kolectivo Lientur /

Kolectivo Mapuche Lientur
http://www.nodo50.org/kolectivolientur
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Translated by
Jo Skinner
Mapuche International Link

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