The defense ofhe lonko Ramiro Buenuleo and four other members of that community who were convicted last month of usurpation and ordered to vacate the lands which they occupied four years ago on the banks of the Ñireco stream she did not give up and will seek to reverse the failure in the Court of Appeal.
The appealn presented this week by the official defenders Marcos Cicciarelo and Natalia Araya attacks the ruling for understanding that it treated the case as a simple dispute between individuals and “did not take into account the indigenous perspective.”
They also once again promoted the recusal of Judge Ignacio Gandolfi -one of the signatories of the ruling- because he had two previous interventions in the “intermediate” instance of the trial, which conditioned his impartiality. They already made a similar proposal before and it was rejected.
Gandolfi was the drafter of the sentence that sentenced the Buenuleos to sentences of up to 18 months in suspended prison, with the support of judges Romina Martini and Víctor Gangarrosa.
The challenge presented by the defenders emphasizes that the judge “generates ignorance of the conventional right to possession and community property“, although The National Institute of Indigenous Affairs recognized the Buenuleo community’s traditional possession of lot 127, within which are the 92 hectares that were claimed as their own by the complainant, Emilio Friedrich.
The defense said that Friedrich used “a private ticket” of questionable legitimacy to demonstrate his supposed real right to the land, and at the time he was also denounced by the Buenuleo for usurpation, but the Court acquitted him.
“Gandolfi’s reasoning regarding the act classified as usurpation is erroneous”maintained the sponsors of the Buenuleo. They accused him of not taking into account the testimonies in favor of the Mapuche community and of “only naming but not applying” indigenous law.
They insisted that “The main legal defect is the lack of knowledge of the effects of resolution 151/23 of the INAI, “which recognizes the current, traditional and public occupation of the Lof Che Buenuleo community of the property that includes the hectares claimed by Friedrich.”
They remembered that On the day they were denounced for the usurpation, in September 2019, the Buenuleos, together with members of other communities, held a religious ceremony at the site, Despite which, they were accused of using “de facto means” in the territorial recovery, by displacing its effective owner, who claimed to have previously purchased those lands, where he established a home.
According to the defenders “Only the denial of indigenous rights recognized by the National Constitution and the jurisprudence invoked can allow a ceremony that involves the exercise of the right to freely profess religion to be ‘de facto ways’ to exercise rights that they already possess, about a place that the national State itself recognizes.”
In another paragraph they stressed that “the sentencing evidences its partiality in favor of the counterparty by classifying the act as ‘violence’ when neither the complaint nor the prosecutor’s office charged that case.”
The expectations of the defenders
It also weighs on the Buenuleo an eviction order, which would only be executed if the ruling is ratified in a second instance. But The defense aspires to have the Court of Appeal review the sentence as “arbitrary” of the Bariloche chamber.
And to elaborate on his reasons he argued that “The application of indigenous law is not only a matter of legal and constitutional compliance, but also of social justice.”respect for cultural and environmental diversity and promotion of the autonomy and self-determination of indigenous peoples.”
So that It cannot be invoked – as the ruling did – that the lack of a specific community property law means removing its validity and “normative force.”the defenders stressed.
