They condemn usurpation and order the eviction of a Mapuche community in Bariloche

The criminal justice of this city imposesor suspended sentences of up to 18 months in prison for the five members of the Buenuleo community, tried for usurpation, and ordered the eviction of the 92-hectare property they occupied in September 2019, at the foot of Ventana Hill.

The ruling applied pless than those requested by the prosecution and the complaint, but he accepted all of their arguments. He pointed out that the lonko Ramiro Buenuleo and the other four members of the lof – who had already been sentenced last March – to serve a sentence of one year and three months for having appealed to the “de facto route” to exercise an alleged right of ancestral possession of the landswhich are also claimed by the complainant, Emilio Friedrich.

In addition to the lonko, Rosa Buenuleo, Sandra Ferman, Aucan Maliqueo and Lucas Denmark were convicted as “co-authors” of the crime of usurpation.

Ramiro Buenuleo received another three months in prison for a second act of threatssince his responsibility was proven in a call to warn about a false bomb in the court building during one of the hearings of the process, held two years ago.

The court made up of judges Ignacio Gandolfi, Romina Martini and Víctor Gangarrosa ruled unanimously, added behavioral guidelines for those convicted for a period of two years and ordered the “immediate eviction of the property.” object of litigation. This last point will not be met before giving the accused “the right to appeal” and compliance with the “double conformity”, that is, ratification by a higher court.

In the main vote, drafted by Gandolfi, He stressed that Friedrich, his brother and a partner named Sánchez bought the land in 2009 from an intermediary who had previously acquired it from Antonio Buenuleo.and although they do not have documented ownership exercised the right of “possession” in the placewhich included fencing and installing a home.

For the judges, it was proven that this land purchase operation “was not isolated or exceptional,” but rather that Buenuleo granted numerous “assignments”, without writingand many neighbors who bought it lived there for decades and made up the neighborhood that today is called Pilar II.

At the back of the neighborhood, flanked by the Ñireco stream, are the 92 hectares that Friedrich claimed as his own and that the Buenuleo community sought to recover because it was their “ancestral territory.”

For the judges, The sales of lots that Buenuleo signed, even without the express agreement of the community, imposed “a discontinuity of traditional possession”. And if the property that Friedrich claims is “trout,” as the defense alleged at trial, it must be resolved in civil jurisdiction.

The legal discussion

According to the ruling “It is unquestionable that for the indigenous community the term territory has a special connotation, since it is a symbolic expression of their ethnicity, their history and their culture.” He also accepted that community property represents a “new concept” that the law cannot ignore and that The National Constitution enshrines “the ethnic and cultural preexistence of the Argentine indigenous peoples.”

But he understood that according to the Civil Code the effective exercise of indigenous community property must emanate from “a special law”, that does not yet exist, and the absence of the law “does not enable the accused (even if they are members of the Buenuleo community), to use de facto roads” to enter the lands they consider their own.

According to the ruling, The accused acted “with violence”, because although they did not enter the property with weapons or hit anyone, they did break a padlock to enter the house, after a precarious agreement that allowed them to maintain a momentary presence in the patio. And also considered proven who acted “clandestinely”, because they were careful to act in the absence of the caregiver. Both conditions are sufficient to configure the “usurpation”.

The judges explained that This crime does not only punish those who enter a property to the detriment of a legitimate owner, but it is enough for the victim to “hold a real right”, derived from a simple act of possession. or effective presence.

In the grounds prior to sentencing, they established that in the trial “dispossession” was conclusively proven to the detriment of the complainant, which is another of the conditions for configuring usurpation.”

The reasons for the eviction

As requested by the prosecutor Betiana Cendón and the plaintiff Alejandro Pschunder, The court ordered as a precautionary measure the eviction of the lands where the Buenuleo have remained for more than four years, and which Friedrich hopes to recover.

Defender Marcos Cicciarello had rejected any advance along that line because National law 26,160 on indigenous survey suspends the eviction of communities. But the judges they skipped that imposition because They understood that “the aforementioned legal text is not applicable to criminally relevant facts and situations,” and that if this were the case it would mean “a carte blanche of impunity.”

They argued that to neutralize the eviction, indigenous possession “must be current, public, traditional and reliably accredited,” which was discredited during the trial.

The eviction is not imminent because an appeal process must be carried out and then a notification to urge voluntary withdrawal.

But if put into practice, there is evidence that will not put an end to the dispute, since during the trial Ramiro Buenuleo warned that the 92 hectares that Friedrich would recover are surrounded by pastoral lot 127, which belongs to the Buenuleo community and there is no controversy about that right.

“How is Friedrich going to get in if we are evicted? Not for our territory Are you going to make a road on the other side of the river, are you going to make a bridge? “Do you have a helicopter?” the lonko asked himself when he was given the floor at the last hearing.

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