Occupations, breaking the law without consequences

A recent ruling by the Federal Criminal Cassation Chamber in Argentina has led to the acquittal of individuals previously convicted for the illegal occupation of land in Villa Mascardi. The court acknowledged that illegitimate occupations, dispossession of public and private property, and acts of violence and threats did occur.

However, the judges, in a majority decision, found that there was insufficient proof to demonstrate that the accused had personally carried out the acts or acted with full knowledge that they lacked any right to the properties. This decision overturned a prior conviction by the Oral Federal Court of General Roca. While the court did not recognize territorial rights for the self-proclaimed Lof Lafken Winkul Mapu community, it did concur that illegal occupations and dispossession had taken place through violence and threats.

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The responsibility for a crime is individual and requires proving the involvement of each accused in the attributed act, but one thing is to respect constitutional guarantees and another is to fragment the analysis of evidence to such an extent that it becomes practically impossible to establish any responsibility in a collective, prolonged action carried out deliberately under conditions designed to prevent the identification of its perpetrators.

The ruling has drawn criticism, with concerns that it makes it practically impossible to establish responsibility in collective, prolonged actions, particularly when participants use disguises like hoods or masks. The court's requirement for absolute certainty regarding who performed specific actions, such as cutting fences or initiating the dispossession, means that masked and collective behavior can lead to impunity.

Furthermore, the judicial process itself has been criticized for systematic delays. The federal justice system in Bariloche took over four years to execute a basic eviction and identification of the intruders. This prolonged delay, combined with the difficulty in proving individual culpability in group actions, has created a situation where, according to critics, the mechanism used to avoid identification ultimately benefits those who participated in the occupation.

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The outcome reached by Cassation holds an institutional consequence that is difficult to accept: the mechanism used to avoid identification (hoods, scarves, or masks) ends up operating in favor of those who participated in the occupation.