Original article: En ningún caso
By Luis García-Huidobro
Article 226, subsection «u» of the criminal procedural code states that «under no circumstances can the court base a conviction solely on statements made by undercover agents, informants, and protected witnesses whose identity has been ordered to remain confidential» .
The purpose of this provision is clear.
For instance, consider a case where a lawmaker is accused by the prosecution of embezzling funds from her aides. To support this claim, the prosecution presents witness testimonies along with WhatsApp messages, bank statements, and other evidence. If the witnesses fear retaliation from the legislator, it may be deemed necessary to keep their identities secret. In such scenarios, the prosecution cannot secure a guilty verdict «under any circumstances» without presenting corroborating evidence, such as WhatsApp messages or bank documents.
If the witness’s identity remains undisclosed and no supporting messages are presented, the judge (regardless of political preferences) must maintain a reasonable doubt that the accused, in this case, the lawmaker, could be facing a false or erroneous accusation.
In this regard, the law is unequivocal and allows for no interpretation. That is the meaning of the phrase «under no circumstances.»
What about extremely serious cases? In situations involving terrorism, severe public disorder, or constitutional states of emergency? No, under no circumstances, says the law. Even less so! A court cannot risk convicting someone to 20 or 40 years in prison without absolute certainty of their guilt.
Article 226, subsection «u» is particularly relevant these days in the Cañete court as it prepares for the oral trial in the so-called «Grollmus Case,» regarding a violent arson attack that occurred on August 29, 2022, on a mill and museum from the era of German colonization in Contulmo. This incident is attributed to the Resistencia Mapuche Lafkenche organization, with nearly twenty Mapuche community members currently in preventive detention.
Throughout earlier stages of the process, the Guarantee Judge in Cañete, Cristian Rosenberg, has expressed difficulty regarding the prosecution’s case, primarily because it relies exclusively on confidential testimonies from protected witnesses.
The Guarantee Judge has argued that the standard for determining a precautionary measure (in this case, preventive detention) differs from that required to issue a conviction. He anticipates that the case will be «very complex» (presumably referring to public opinion and all those who expect a conviction given the severity of the events), as the evidence provided by the prosecution does not meet the reasonable doubt standard .
It is also essential to note that it is not only a matter of protected witnesses; according to their accounts, the testimonies do not claim to be eyewitness accounts but rather hearsay, further undermining their credibility.
As for the possibility that protected witnesses might lie or make mistakes, I speak from direct experience, having been held in preventive detention two years ago solely based on the account of a protected witness, who claimed I committed an arson attack in Carahue.
I am unsure of that person’s motives for accusing me (if they indeed did), but I was fortunate that on the day in question, I had made purchases with a card far from Carahue, and I was active on social media precisely when the attack occurred, what you might call an «alibi.»
For that reason, I was able to be released a few months after being held in preventive detention, and the prosecution was forced to drop the charges against me after more than two years of investigation during which they claimed to have «complete certainty» of my involvement in the alleged attack.
Who knows if the twenty defendants in the Grollmus case will have alibis like the fortunate one I had regarding the attack I was accused of in Carahue, but having gone through the experience, I can appreciate the importance of due process and the presumption of innocence, especially when accused by unknown parties.
The presumption of innocence should apply equally to lawmakers, social activists, or Mapuche community members, and judges should not be swayed by public opinion. Law enforcement and prosecutors should not use public sentiment to pressure judges in order to advance their cases.
There is no justification for someone to serve 20 or 40 years in prison without complete certainty of their guilt.
Luis García-Huidobro
NOTES
El Ciudadano
