30 July 2013
The Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism visited Chile from 17 to 30 July 2013. He thanks the Government of Chile for having extended an invitation to visit the country, and for the constructive and co-operative way in which all Government representatives approached the visit. He particularly commends the transparency shown by the various official authorities during their engagement with him, which allowed a frank and open dialogue on the content and application of the anti-terrorism legislation 18.314, as well as compliance with the rule of law and the protection of human rights.
During the course of his visit the Special Rapporteur had productive meetings with the Minister of Justice; the Vice Minister of Interior and Public Security and a representative of the Ministry’s human rights program; the Director General for Multilateral Affairs and the Director for Human Rights of the Ministry of Foreign Affairs; as well as a regional representative of the Ministry of Social Development. He also met with the National Prosecutor (Attorney General) and with the Chief Prosecutors responsible for regions VIII and IX. He further met with the National Chief of the Public Defender’s Office and the Chiefs responsible for the regions of Araucanía and Biobío; with representatives of the Legal Assistance Corporation and the Indigenous National Development Corporation (CONADI); and with the Director of the human rights unit of the Prison Service. Members of the judiciary included the President of the Supreme Court as well as the magistrate responsible for coordination of human rights matters, as well as the President of the Constitutional Court.
The Special Rapporteur also met with various representatives of the Carabineros, including the General Director, the Chief of the Department for Human Rights, the Chief Inspector General responsible for regions VIII, IX and XIV, and the Chief Officers of regions VIII and IX. He further met with the National Chief of human rights crimes of the investigative police and with the Regional Chief of the investigative police of Araucanía. During a visit to the National Parliament, the Special Rapporteur met with the Presidents of the Committees on Human Rights, Nationality and Citizenship and on Constitution, Law, Justice and Regulation of the Senate; with the President of the Committee on Human Rights, Nationality and Citizenship of the Chamber of Deputies; and with individual Deputies. In addition, he met with the Director and representatives of the National Institute of Human Rights.
During his visit, the Special Rapporteur also met with lawyers, academics, representatives of the Church, including the Archbishop of Temuco, associations of victims of rural violence, private sector representatives, and civil society organizations, including NGOs. Furthermore, he met with a significant number of representatives of different Lof (Mapuche communities or territorial units).
The Special Rapporteur conducted visits to three detention facilities, notably the Temuco City prison, the prison of Angol and the El Manzano prison in Concepción which all house detainees from Mapuche communities, both those convicted and those still awaiting trial for offences connected with the Mapuche protests in the region of Araucanía. He had the opportunity to discuss the challenges faced by staff and inmates, and met privately with a number of Mapuche detainees.
The Special Rapporteur further consulted with relevant United Nations agencies, including the United Nations Development Programme (UNDP), the United Nations Children’s Fund (UNICEF) and the Economic Commission for Latin America and the Caribbean (ECLAC). He would like to thank the United Nations system, in particular the Office of the High Commissioner for Human Rights, Regional Office for South America, in Santiago for providing valuable support throughout his visit.
The focus of the Special Rapporteur's country visit to Chile has been upon the use of anti-terrorism legislation in connection with protests by Mapuche activists aimed at reclaiming their ancestral lands and asserting their right to collective recognition as an indigenous peoples and respect for their culture and traditions. These protests have typically been characterised by land occupations as well as arson and other forms of physical attack directed at agricultural, logging and industrial property associated with the commercial settlement of Mapuche territory.
In recent years, however, the scale, frequency and intensity of these incidents has increased, due partly to the slow rate of progress in the administration of the State's scheme for repatriating Mapuche territory. There have been increasingly frequent attacks on members of the Carabineros who have in the past been perceived by sections of the Mapuche community to be partisan, and to have operated as an instrument of State repression. At least one member of the Carabineros has been killed and many more have been the victims of potentially fatal attacks. A particularly disturbing development was the death, in January of this year, of the couple Werner Luchsinger and Vivian Mackay during an arson attack on their farm. This attack followed a series of previous non-fatal attacks on property belonging to members of this extended family which has been engaged in large-scale commercial farming in the region for many years.
The Special Rapporteur met with members of the Luchsinger family, as well as with a broad cross-section of the rural Chilean community who have suffered various forms of violence as a result of these increasingly frequent protests. He expresses his sincere condolences to the Luchsinger family, as well as to the families of Alex Lemun Saavedra, Matías Catrileo Quezada and Jaime Mendoza Collío, the three Mapuche protestors to have been shot and killed by members of the Carabineros as a result of these protests.
The Special Rapporteur assesses the situation in Araucanía and the surrounding areas to be volatile, and liable to spread into a full-blown regional conflict unless urgent action is taken to address not only the manifestations of the violence, but also its root causes. All interlocutors familiar with the situation agreed that whilst those perpetrating acts of violence are currently few in number, the degree of tacit sympathy for their actions is potentially much more widespread among Mapuche communities. In the opinion of the Special Rapporteur, the risk of escalation is very real and it is imperative that the State of Chile should take urgent action to address the situation before it veers out of control.
The Mapuche are a proud and generally peaceful indigenous peoples who have lived in the territory south of the Biobío river since pre-Colombian times. They successfully resisted attempts at colonisation by the Spanish, and retained exclusive control of their territory, recognised by the State of Chile, until they were overrun by the Chilean army in the 1880's and their lands occupied for settlement. The Mapuche religion and culture is premised upon their relationship with their natural environment as well as the principle of respect for all living things. The occupation and commercial exploitation of their ancestral land, with the adverse environmental consequences that go with intensive commercial land usage, is thus viewed by sections of the Mapuche as an attack on their essential values and even on their very right to exist.
A large number of Mapuche now live in relative poverty in the major cities. However, the remainder continue to attempt to maintain their traditional way of life in rural communities in the Araucanía and Biobío regions. Since the first occupation of Mapuche territory at the end of the 19th century, the State of Chile has progressively encroached upon Mapuche ancestral lands. This encroachment continued largely unabated through the sale of ancestral lands to commercial interests, often at less than their full value. The point has now been reached at which the surviving Mapuche rural communities have been driven to occupy pockets of relatively unproductive land in often isolated areas of the Araucanía and Biobío regions. Their communities are typically impoverished, and are surrounded by commercial farming, logging and other economic activities which they regard as exploiting the natural resources of their land. It is a source of great resentment among the Mapuche that these activities are performed on their ancestral territory, within sight of the communities that have been dispossessed. The Special Rapporteur has visited some of these communities and seen for himself the impoverished conditions of life in which many of the rural Mapuche are forced to live.
The historical debt owed by the State of Chile to the Mapuche people is described in the report of the Commission on Historical Truth and New Deal with the Indigenous Peoples issued in October 2008. However, whilst this report recommended the expropriation of Mapuche land from the settler community (with compensation) and its repatriation to the Mapuche, the State has so far rejected this solution. Instead, it has established a regional programme aimed at re-purchasing relatively small tracts of land from the settler communities, together with limited regional grants aimed at enabling Mapuche communities to make effective use of the land. Until 2010 the repatriation progress, which has been administered by the Indigenous National Development Corporation (CONADI) was slow, arbitrary and viewed as largely ineffective by the Mapuche. This was due in part to poor administration by CONADI, combined with land speculation by members of the settler community which had the effect of pushing up the purchase price per hectare, and thereby delaying the process of repatriation. Over the past two years, CONADI has instituted a number of measures aimed at speeding up the land repatriation process and has succeeded in stabilising the market value of the land. However, representatives of CONADI acknowledged during their meeting with the Special Rapporteur that the central budget available for this purpose is grossly insufficient, and that on the current budget it will take several decades before even the earmarked lands can be returned.
The Special Rapporteur considers that this state of affairs is unsatisfactory and dangerous, and that the State of Chile needs urgently to prioritise and accelerate the process of land repatriation. This implies that the State must set the necessary funds aside in order to achieve current repatriation targets within a short and defined timescale, measurable in months and years rather than decades. This will require not only an exponential increase in resources, but also a shift in political will within government, so as to give the Mapuche question the priority it deserves.
The Special Rapporteur notes that the settler community is also deeply dissatisfied with the political strategy that has so far been pursued by the State of Chile in its efforts to resolve the Mapuche question. During his meetings with organisations representing those who had been victims of rural violence, small landowners complained forcefully that insufficient compensation had been set aside to enable them to re-settle elsewhere in Chile under conditions comparable to those under which they had previously lived and worked. Others, including the representatives of commercial interests in the region, complained that the lack of political will within central government to seek and deliver a lasting solution to the problem left their communities and their enterprises unprotected. During the entirety of his visit, none of the stakeholders in the Araucanía and Biobío regions (including the Mapuche, the settler community, or those involved in law enforcement) has expressed satisfaction with the efforts made by central government to address the issue.
Chile is a signatory to the United Nations Global Counter-Terrorism Strategy which was unanimously adopted by all Member States of the United Nations in 2006, and most recently re-affirmed by the General Assembly in July 2012. The first Pillar of the Global Strategy requires all States to devote the necessary efforts to address the conditions conducive to the spread of terrorism and violent extremism. The core philosophy underlying Pillar One of the Global Strategy is that the spread of violent extremism cannot be effectively countered by law enforcement measures alone. Indeed, the collective experience of the Member States is that excessive and discriminatory law enforcement aggravates the threat of violent extremism and is counter-productive. In accordance with Pillar One of the Strategy, States must address not only the manifestations of social and political violence, but also its root causes. All Member States of the United Nations, including Chile, have reached a consensus to the effect that the conditions conducive to the spread of politically motivated violence and extremism include long-running regional disputes, such as land disputes, poor governance, violations of human rights, legal discrimination as well as political, economic and educational exclusion.
All of these factors are present in the conditions underlying the Mapuche land protests. Historical grievances, once recognised, must be effectively and promptly addressed. Where State policy raises expectations that then remain unfulfilled due to lack of resources and poor administration by public officials, there is an ever-present risk that violent protest will escalate to the level of widespread public disorder. Political and economic exclusion of the kind still experienced by the Mapuche people is a recognised cause of violent extremism. The responsibility for addressing these issues rests squarely with the State. Since the restoration of democracy in Chile, no government of either political hue has treated this issue with the priority it deserves. As matters stand today, at the date of the Special Rapporteur's visit, the State of Chile is in dereliction of its duty to promote a peaceful and just solution to the Mapuche question. This is a duty which the government owes not just to the Mapuche, but also to the settler communities in the rural areas of Araucanía and Biobío, to the law enforcement officials in those regions upon whom the State relies to keep the peace, and to the wider community in those regions who are entitled to expect the State to discharge its public administration obligations effectively and without discrimination so as to maintain the principles underlying representative democracy.
From discussions with all interlocutors, the Special Rapporteur has formed the view that the institutions of State in Araucanía and Biobío have enforced a variety of different methods of legal discrimination against the Mapuche which are perceived by many as a form of repression. The two most obvious examples of discriminatory law enforcement are the arbitrary and inappropriate use of the anti-terrorism legislation as a means of addressing the Mapuche protests, and the use of excessive violence by the Carabineros, as well as by the investigative police, in the enforcement of the criminal law. This has become, in itself, a major source of grievance for the Mapuche communities, and at least partially explains the escalation in violent attacks against the Carabineros and other institutions of State in the region.
The anti-terrorism legislation has been invoked by the local public prosecutors and by the Ministry of the Interior and Public Security in a relatively defined number of emblematic cases, mostly involving multiple accused. The statistics demonstrate that Mapuche protests account for the vast majority of prosecutions under the anti-terrorism legislation. The definition of terrorism under the legislation is very broad, and depends upon proving the commission of a substantive criminal offence (such as arson) coupled with the necessary intent to instil fear in the population and thereby to influence government policy. Whilst this form of definition is not unique to Chile, it leaves a broad discretion to the prosecutor which can lead to unforeseeable and arbitrary application, and is therefore open to potential abuse. In a meeting with the Special Rapporteur, senior members of the judiciary expressed the view that the current definition of terrorism is effectively unworkable, and that there is a strong case for the repeal of the anti-terrorism legislation.
Where a State retains a broad and subjective legal definition of terrorism, it is an essential minimum safeguard against abuse that there should be objective criteria for the exercise of prosecutorial discretion, and a consensus as to what forms of protests can properly be characterised as acts of terrorism. The Special Rapporteur considers that in Chile today there are no such objective criteria, and there is no such consensus.
During a series of meetings with the offices of the national and regional public prosecutors, and with the Ministry of the Interior, the Special Rapporteur has sought to identify any objective criteria adopted by prosecutors and by the Ministry for determining which protests satisfy the legal definition of terrorism and which do not. The various justifications put forward have been subjective and lacking in legal rigour. A comparison of the cases which have been charged as terrorism with those which have not bears this out. It is impossible to distinguish any clear and consistent dividing line between cases which have been charged as common criminal offences (such as arson, frustrated murder and firearms offences) from those in which the counter-terrorism legislation has been invoked, in order to aggravate the sentence and provide additional procedural advantages to the prosecutor. The Special Rapporteur reluctantly concludes that subjective, arbitrary and/or political considerations have played a role in the selection of those cases in which the anti-terrorism legislation is invoked.
In addition to the absence of objective legal criteria, there is an absence of political consensus as to the question whether Mapuche land protests can or should be stigmatised as terrorism. The Special Rapporteur met with elected political representatives from the Government and opposition with a close interest in this issue. It is clear that political opinion in Chile is deeply divided on the use of the anti-terrorism legislation against the Mapuche, and that this polarisation has impeded progress towards a consistent and principled application of the law. One point of view is that the anti-terrorism legislation should be strengthened and more frequently applied. This view is typified by Senator Orpis Bouchon who has proposed legislation to this effect. The opposing view is that anti-terrorism legislation has no role to play at all in connection with the Mapuche question; that Mapuche protests have not taken the form of recognisable terrorism; that the use of the anti-terrorism legislation in connection with Mapuche land protests is counter-productive to the promotion of a peaceful resolution to the Mapuche question; and that at its worst it amounts to a form of labelling aimed at de-legitimising not only the use of political violence but also the underlying cause of the Mapuche people. This view was endorsed, to varying degrees, by elected politicians from the Government and opposition who are most closely associated with constituencies in the Araucanía and Biobío regions, and are therefore closer to the problem. The only point on which all were agreed is that the current application of the anti-terrorism law is unsatisfactory and inconsistent. The Special Rapporteur did not encounter any interlocutor (apart from the public prosecutors) who expressed satisfaction with the present state of affairs.
In such a politically polarised and legally unsatisfactory situation, the Special Rapporteur is duty-bound to express his conclusions and recommendations on this question.
On the one hand, there can be no doubt that the anti-terrorism law has been used disproportionately against persons accused of crimes in connection with the Mapuche land protests. Central government and public prosecutors stressed to the Special Rapporteur that this did not amount to stigmatising the Mapuche people, or to characterising Mapuche political protests as a whole as amounting to a campaign of terrorism, but rather involved the application of legal criteria to the facts, on a case by case basis. However, in the absence of any coherent and objective criteria for the invocation of the law, and in the face of the most obvious inconsistencies in application, it is necessary to justify the continuing invocation of the anti-terrorism law in such a volatile political situation. More particularly, given the potential that these charges have for raising the level of tension in connection with the Mapuche question, it is necessary to consider whether the invocation of the ordinary criminal law provides sufficient tools to maintain law and order, and to protect and vindicate the rights of the victims of the rural violence.
There is little doubt that the use of the anti-terrorism legislation has antagonised the most active sections of the Mapuche community and is seen by them as a means of stigmatising their cause. As a result of a concerted hunger strike by Mapuche individuals detained under the anti-terrorism legislation in 2010, the Government introduced amendments in 2010 and 2011 to redress some of the more obvious grievances. These included repealing a statutory presumption of terrorist intent applicable in certain situations, affirming the limited right of the defence to cross-examine anonymous witnesses, and removing juvenile accused from the scope of the legislation. It also appears to have resulted in the provisional release of a significant number of accused pending their trials. However, the continued use of the legislation is otherwise unconstrained, and remains subject to the same objections of vagueness and arbitrary enforcement.
In cases where the anti-terrorism legislation has been invoked, it is invariably used as an adjunct to a substantive criminal offence which can be prosecuted under the ordinary criminal law. If the anti-terrorism legislation is invoked in addition to the substantive criminal law, the accused is subjected to a number of significant procedural and substantive disadvantages. Instead of being detained for 24 hours in police custody prior to his first appearance in court (which may be extended for up to three days in cases of common crime), the period of police detention in terrorist cases may be (and routinely is) extended by a judge for up to 10 days. The procedure for securing such detentions is not adversarial and the defence rarely has an opportunity to address the judge on the extension.
The Special Rapporteur heard allegations that individual Mapuche suspects had been tortured or otherwise ill-treated during these extended periods of detention, in an effort to coerce them into signing a confession. Whilst he was not in a position to investigate these allegations, the Special Rapporteur notes that short periods of police detention are intended to prevent torture and ill-treatment of suspects during interrogation.
Following police detention, a person charged under the anti-terrorism legislation will typically have to wait six months before his lawyers are served with the evidence and statements in support of the charge, during which time they are seriously hampered in the preparation of a defence. This compares to a period of 28 days that is typical for non-terrorist crime.
Since the penalty for terrorist offences is very much longer than the penalty for the equivalent substantive criminal offence, the likelihood of an order for release on bail pending trial is correspondingly diminished. Moreover, under the Constitution, there is a special provision applicable to terrorist offences under which any appeal against a decision to order detention pending trial requires unanimity of the three judges considering the appeal as a pre-condition to an order for release. If a majority of the appeal judges favour pre-trial release, but one disagrees, the accused will remain in custody. This has led to complaints on behalf of Mapuche activists that many have remained in pre-trial incarceration for very long periods of time. In some cases these same accused have been acquitted of the terrorism charges at trial.
Prosecutors argued that the continuing use of the anti-terrorism legislation as a means of investigating certain Mapuche protest crimes could be justified by reference to the availability of special investigative methods under that legislation – notably the availability of telephone and other communication intercepts for the purpose of gathering intelligence and evidence, and the use of anonymous witnesses, both of which are provided for under the anti-terrorism legislation. On closer analysis, however, these justifications are unconvincing.
The power to obtain authorisation for the use of telephone and other communication intercepts is not confined to charges under the terrorism legislation. The more serious substantive criminal offences (such as arson resulting in death) may also lead to the authorisation of this investigative technique. In common crimes the use of intercepts depends upon the gravity of the offence. It must be inferred that Parliament intended that such methods, which involve intrusion into private communications, would be available only in connection with investigation into the most serious crimes. However, a comparatively less serious crime (such as arson against property) will attract the use of these more invasive forms of investigation if it is labelled as a terrorist crime. If, therefore, investigations and prosecutions were to concentrate on the substantive criminal act alleged, and to charge that act as a common crime, then the balance envisaged by Parliament (which confines intercepts to the most serious offences) would be maintained and respected.
The other special evidential measure associated with the anti-terrorism legislation is the use of anonymous witnesses. This has become a source of acute contention in the Mapuche context. The use of anonymous witnesses places the defence at a considerable disadvantage during a trial since defence counsel is unable effectively to challenge the credibility of the witness. The 2010 amendments affirmed the right of the accused to cross-examine an anonymous witness, providing the questioning does not tend to reveal his or her identity or any information from which his or her identity can be inferred. The Special Rapporteur was informed that this provision is strictly interpreted to prevent any line of questioning which would expose the vulnerabilities (whether reliability or bias) of the witness, thus hampering the presentation of an effective defence. There is no provision preventing the court from relying on the testimony of an anonymous witness as the sole or decisive basis for a conviction. Perhaps most seriously, there is no specific obligation on the prosecutor to investigate the credibility of an anonymous witness and to disclose the products of such an investigation to the accused.
International human rights law protects the right to a fair and adversarial procedure in the trial of all criminal offences. Whilst the use of anonymous witnesses will not automatically violate this right, international law requires that the departures from a full and public adversarial procedure should be kept to an absolute minimum; that anonymity should be clearly and specifically justified by the need to protect the physical safety of the witness against reprisals; and that the resulting unfairness to the accused must be counterbalanced by procedural guarantees that ensure that the fairness of the proceedings is not unjustifiably compromised. Such counterbalances may include a rule preventing reliance on anonymous testimony as the sole or decisive basis for a conviction, and a specific enhanced obligation of investigation and disclosure to the defence of any fact tending to undermine the reliability or credibility of the anonymous witness.
None of these safeguards appear to be in place under the anti-terrorism legislation in Chile. The use of anonymous witnesses as the sole or decisive basis for a conviction has been commonplace; and there is no specific obligation on the prosecutor to investigate and disclose facts undermining the witness's credibility (beyond the usual principle of objectivity). There is thus an obvious risk of procedural unfairness, which carries with it the spectre of miscarriages of justice.
The Supreme Court has criticised the inappropriate misuse of anonymous witnesses in one Mapuche protest case in 2011, noting that the public prosecutor in that case had afforded benefits in exchange for testimony which rendered the witness´s evidence worthless. This serious criticism of the use of anonymous witnesses in such cases was re-iterated by senior members of the judiciary during discussions with the Special Rapporteur.
However, the most compelling argument against the continued use of anonymous witnesses in connection with Mapuche protest cases is that it is not in fact justified in those cases by the stated objective of protecting the safety of the witness. The commander of the Carabineros in Araucanía, and the public prosecutors, both in Temuco and in Concepción, each confirmed during meetings with the Special Rapporteur that the anonymity measures used in Mapuche prosecutions under the anti-terrorism legislation are consistently ineffective because the community is invariably able to identify the witness from local knowledge. This is a stark and far-reaching concession. All those concerned with law enforcement in the region agree that in the absence of a full witness protection scheme (under which a witness and his or her family are provided with a new identity and relocation measures) the present arrangements are ineffective to protect the witness.
It thus follows that the use of anonymous witnesses in the context of prosecutions of Mapuche accused under the anti-terrorism legislation is not achieving the stated objective of providing protection to the witness and his or her family. On the other hand it is continuing to impose a grave impediment to the fairness of the trials for these offences. It is also presenting the witness and his family with the misleading impression that their identity is unknown, when in fact the reverse is usually the case. It thus undermines the rights of the accused without protecting the rights of the witness, and arguably even exposes the witness and his or her family to greater and unnecessary risk by creating the false impression that their identity will remain secret.
Having regard to all of these considerations, and to the nature of the Mapuche protests, the Special Rapporteur concludes that the continuing disproportionate use of the counter-terrorism legislation as a means of prosecuting crimes committed in connection with the Mapuche dispute is arbitrary and counter-productive to a peaceful resolution of the Mapuche question. He notes that the substantive crimes alleged can be adequately investigated, prosecuted and punished under the ordinary criminal law, without recourse to the exceptional measures available under the anti-terrorism legislation. He agrees with those who take the view that the use of anti-terrorism legislation in this particular context amounts to a form of labelling and produces justifiable grievances among the Mapuche that are liable to further inflame a volatile and unstable situation, without producing any tangible benefit to ethical and even-handed law enforcement in the region. Whilst the local public prosecutors were divided on the question whether they could effectively perform their important public duties without recourse to the anti-terrorism legislation, the Special Rapporteur notes that the Temuco public prosecutor agreed that a change in policy to the effect that the anti-terrorism legislation should no longer be used in connection with Mapuche protests would be “a small step in the right direction”.
The Special Rapporteur is satisfied that the use of anti-terrorism legislation against Mapuche land protestors is part of the problem, and not part of the solution. It has become counter-productive and should cease. In making this recommendation the Special Rapporteur is conscious that this will not, in itself, solve the disputes. He agrees, however, with the Temuco public prosecutor that it would be a step in the right direction and considers that as part of an integrated national strategy it could help to promote the process of peaceful dialogue on which the resolution of this dispute clearly depends.
Accordingly, the Special Rapporteur recommends that as part of an integrated national strategy to address the Mapuche question, no further arrests of Mapuche land protestors should take place in reliance on the anti-terrorism legislation; no further charges of Mapuche land protestors should be brought under the anti-terrorism legislation; that the existing charges pending against Mapuche land protestors who currently face prosecution under the anti-terrorism legislation should be reviewed, and prosecutions for common criminal law offences substituted; and that a mechanism should be introduced enabling a review of the convictions and sentences imposed on past Mapuche land protestors under the anti-terrorism legislation to bring their situation into line with the change of policy recommended by the Special Rapporteur. Those who have been convicted in reliance on the testimony of anonymous witnesses should be given the right to have their convictions reviewed and, where appropriate, a retrial ordered which would take place under the provisions of the ordinary criminal law, without recourse to anonymous testimony.
On the other hand, however, the rights of those who have been victims of rural violence (whether against the person or against property) must also be protected. The Special Rapporteur does not currently recommend any general amnesty or impunity for acts of violence. The provisions of the ordinary criminal law should be properly enforced in all cases. This includes not only cases of violence committed by members of the Mapuche community in pursuance of their land rights claims, but also the crimes of violence committed against members of the Mapuche community by law enforcement officials.
The second notable aspect of legal discrimination against Mapuche communities concerns the use of excessive violence by the Carabineros as well as the investigative police, during searches of these communities and the apprehension of suspects, together with the almost complete absence of accountability for the crimes of excessive violence committed against Mapuche during the course of these searches. The Special Rapporteur is in no doubt that the use of excessive force by the Carabineros during the course of such searches was, until recently, commonplace and even systematic. He has been informed of numerous instances in which wholly disproportionate numbers of armed special forces have entered communities, often accompanied by helicopters and reinforcements, and in which non-lethal firearms have been discharged causing many injuries, not only against adult males but against the elderly, women, children and even infants. He has seen for himself photographs and videos showing the aftermath of these incidents, which demonstrate beyond doubt that multiple gunshot injuries requiring hospitalisation have been inflicted in many instances. He has also seen evidence confirming the sheer number of discharged cartridges in some operations which leave no room for doubt as to the extent of the fire power that was employed. In a series of habeas corpus decisions, the Supreme Court returned findings to the effect that excessive force, including the use of firearms, was deployed by members of the Carabineros against unarmed Mapuche civilians. The use of excessive physical force, and in particular the unjustified use of firearms, amounts to a criminal offence which should be duly investigated and, if found proved, should be punished to the full extent of the law. Needless to say, these Mapuche communities are equally entitled to the protection of the criminal law against the use of excessive violence by the police.
In the opinion of the Special Rapporteur, the most alarming feature of this situation is the almost complete absence of accountability for the crimes allegedly committed by law enforcement officials. Taking the evidence and judicial findings as a whole, it appears undeniable that some members of the Carabineros have in the past adopted a practice of using excessive and potentially lethal force during intrusions into Mapuche communities. Formal responsibility for investigating and prosecuting these crimes rests with the Military Prosecutor. However, despite the fact that many of these incidents have been reported to the Military Prosecutor, there has so far not been a single prosecution for the use of excessive non-fatal force by members of the Carabineros during the conduct of searches of Mapuche communities. This is bound to reinforce a sense in these communities that the law is being applied in a discriminatory manner, and that the Carabineros have been used as an instrument of State repression. The Special Rapporteur is reluctantly driven to the conclusion that the Office of the Military Prosecutor has conspicuously failed in its duty to enforce the law through the investigation and prosecution of those responsible.
The Special Rapporteur personally visited one community in which special forces of the Carabineros entered in October 2009 in pursuit of a single unarmed individual. During the operation the police met unarmed resistance from other members of the community. Despite the fact that the resistance was unarmed, the special forces discharged numerous firearms into the community that injured 19 people, including three women and a baby who were struck with plastic bullets. Many of the victims were hospitalised so that independent records of their injuries and treatment are available for investigation.
Despite the seriousness of this incident, the Special Rapporteur was disturbed to discover that neither the Commander of the Carabineros in Araucanía, nor the Temuco public prosecutor seemed aware of it, and neither appeared to consider that it was a part of their responsibility to make themselves aware of it. The Special Rapporteur considers that this amounts to a serious institutional failure. There are two possible conclusions. Either the incident, grave though it was, was so commonplace in the region that it did not merit being brought to the attention of the head of the Carabineros and the public prosecutor, notwithstanding the fact that the individual whose arrest was being pursued remains to this day the subject of on-going criminal proceedings; or there has been a serious and systematic failure of institutional communication and responsibility. For the avoidance of doubt, the Special Rapporteur considers that the public prosecutor is under a duty in every case to fully inform himself of the circumstances surrounding any search or arrest leading to criminal proceedings for which he is responsible. He was dismayed by the failure of the Temuco public prosecutor, in particular, to recognise and give effect to this duty.
The only cases in which criminal proceedings have so far been brought against members of the Carabineros relate to three fatal shooting incidents in which Mapuche activists lost their lives. The most recent of these cases is still proceeding through the courts, and it would not be appropriate for the Special Rapporteur to comment on a case whilst it remains under judicial consideration. However, in one of the other two instances, the Carabinero involved was found guilty of the use of excessive force resulting in the death of Matías Catrileo Quezada. His conviction was upheld by the Court Martial but the sentence was reduced from five years immediate imprisonment to three years deferred imprisonment, in a ruling subsequently affirmed by the Supreme Court. The Special Rapporteur was disturbed to discover that this officer remained as a serving member of the Carabineros throughout the proceedings, and even after the final confirmation of his conviction by the Supreme Court. He was only dismissed some time later as the result of administrative intervention. Viewing the situation as a whole, it is not difficult to see how members of the Mapuche community could view these outcomes as evidence of further discrimination, and of the relative value placed on the loss of a Mapuche life.
On a positive note, the Special Rapporteur welcomes recent initiatives adopted by the central Carabineros to bring about a significant change in the relationship between their officers and the Mapuche communities. At the end of 2012, under the personal authority of the General Director of the Carabineros, senior officers from Santiago were given the responsibility for investigating the causes of the apparent breakdown in the relationship between the Carabineros and the Mapuche. They frankly acknowledged to the Special Rapporteur that they had encountered significant problems of accountability at a local level, and have instituted measures to improve reporting and to promote disciplinary and criminal sanctions where crimes have been committed by their officers.
The Chief of the Human Rights Department of the Carabineros, based in Santiago, has initiated training aimed at promoting respect for human rights and improving community relations, and have set up a series of processes aimed at reducing conflict and building trust. With the support of the General Director, a comprehensive strategy known as the Pilot Patrols for the attention of Ethnic Communities (P.A.C.E.) has been adopted. This incorporates a series of measures that represent a significant change in policy away from the use of indiscriminate force, and in favour of negotiation and dialogue as a means for resolving situations of potential conflict. The measures adopted include the use of community liaison, the adaptation of police vehicles, the identification of policing priorities within Mapuche communities, and the promotion of dialogue at all levels. The General Director personally assured the Special Rapporteur of his commitment to bringing about a re-calibration of the relationship between the Carabineros and the Mapuche, aimed at imposing significant restrictions on the use of force by his officers when implementing courts orders for eviction, and carrying out arrests, in favour of culturally-sensitive policing methods such as dialogue to avoid unnecessary confrontation.
Whilst welcoming these important developments, the Special Rapporteur emphasises the critical importance of ensuring that those members of the Carabineros who have committed crimes in the past are brought to justice. The Office of the Military Prosecutor has proved an insufficiently robust safeguard for the protection of the Mapuche communities against the use of police violence, and there has been a collective institutional failure to secure proper standards of accountability. The Human Rights Department of the Carabineros confirmed to the Special Rapporteur that there is currently no effective institutional mechanism for investigating these allegations, a situation which amounts to an accountability deficit.
Continuing impunity is not an option. A comprehensive and integrated national strategy for addressing the Mapuche question must include the adoption of adequate measures and machinery for investigating and prosecuting past crimes committed against the Mapuche communities. Accountability for these past violations is an essential part of any strategy for re-building trust and improving community relations. The Special Rapporteur accordingly recommends the creation of a new investigation body with the function of inquiring into crimes of excessive violence committed against Mapuche communities by members of the Carabineros and the investigative police. Such a body should be institutionally independent of both forces, should have the power to investigate and to require the initiation and prosecution of criminal and disciplinary proceedings. It should also have power to inquire into the failure of the Office of the Military Prosecutor to secure accountability in the many cases of excessive violence in which it has so far failed to take any effective action.
Finally, the Special Rapporteur draws attention to the position of Mapuche prisoners who are serving sentences in prison, or detained in prison pending trial. The Ministry of Justice informed the Special Rapporteur that special regimes are in place in all custodial institutions that house prisoners associated with the Mapuche conflict, and that their cultural rights and social customs are accommodated to the greatest extent possible, consistent with the maintenance of good order and discipline within the institutions. The Special Rapporteur is extremely grateful to the Prison Service for the constructive and helpful way in which they facilitated his visits to the Mapuche detainees in prison in Temuco, Angol and Concepción. He was able to meet with all the prisoners in those institutions who were detained in connection with the land protests, and to see their conditions of detention for himself. He noted that adaptations had been made at each institution in an effort to accommodate the special needs of this category of prisoner. He had lengthy discussions with a number of inmates, including Celestino Córdova who is currently facing trial in connection with the incident that led to the death of the Luchsinger Mackay couple and with Hector Llaitul with whom he had a constructive discussion about the best way to promote peaceful dialogue and negotiation.
One aspect which needs to be urgently addressed by the Ministry of Justice is the provision of facilities for Mapuche detainees to serve their sentences close to the communities from which they come. At present, most of those who are awaiting trial are housed in Angol prison, where access for their families and communities is relatively easy. However four convicted prisoners, including the community leader Hector Llaitul are housed in Concepción, where access for their families and communities is much more difficult. If those who are sentenced to imprisonment are to be able to re-integrate peacefully into their communities after they are released, then they need to be able to maintain relationships during their incarceration. Moreover, any sustainable long-term resolution needs to be capable of bringing all parties into the dialogue, including those who have been at the forefront of the Mapuche protests.
Provisional conclusions and recommendations
At the conclusion of his visit the Special Rapporteur said:
“During the course of my visit to Chile I have had the opportunity to meet with all stakeholders, including the victims of rural violence, many representatives of the Mapuche community, local landowners, the Carabineros, the investigative police, the public prosecutors, public defenders and a cross-section of civil society representatives, including NGOs.”
“I am today making three specific recommendations. First, I am recommending that the State of Chile should urgently adopt a National Strategy aimed at comprehensively addressing the Mapuche question within a defined and relatively short timescale. The situation in the Araucanía and Biobío regions is extremely volatile. The frequency and gravity of the violent confrontations in the region has been intensifying over the past three years. In the absence of prompt and effective action at a national level it could very quickly escalate into widespread disorder and violence.”
“The search for a solution will require not only an exponential increase in central government funding for the repatriation of Mapuche ancestral lands, but a paradigm shift in political will so as to give the Mapuche question the priority it demands in the national political dialogue. The process of land repatriation has been inexcusably slow, and has produced complaints of injustice on all sides. In order to have any prospect of a success the new National Strategy will need to address not only the issue of land repatriation but also the wider questions concerning the recognition of the rights of the Mapuche and an end to the legal and institutional discrimination.”
“The cornerstone of this new National Strategy should be the Constitutional recognition of the Mapuche's right to exist as an indigenous peoples within the State of Chile together with the creation by the incoming government of an adequately staffed and funded Ministry for Indigenous Affairs.”
“It is my firm recommendation that responsibility for devising and implementing the National Strategy should be devolved to a partnership between Government and a newly established National Consultative Commission. This Commission should include representatives of the major political parties, the relevant interest groups (the Mapuche, small and larger rural landowners, commercial interests as well as the victims of rural violence), as well as the National Institute of Human Rights. Mapuche representation on the Commission must reflect the widest possible spectrum of Mapuche community interests. Specialist international and regional expertise may assist the Commission to build a consensus on the key challenges and their possible solutions. I intend to consult further on this recommendation, and will make put forward a detailed proposal on the composition and mandate of this Commission in my final country report, which will be presented to the Human Rights Council in March 2014.”
“My second recommendation relates specifically to the use of the anti-terrrorism legislation in connection with Mapuche land protests. The anti-terrorism law has been used in a manner that discriminates against the Mapuche. It has been applied in a confused and arbitrary fashion that has resulted in real injustice, has undermined the right to a fair trial, and has been perceived as stigmatising and de-legitimising the Mapuche land claims and protests.”
“I am today recommending that all use of the anti-terrorism legislation in connection with Mapuche land protests should cease. This legislation has become part of the problem and not part of the solution. It has been applied disproportionately against Mapuche defendants, and has been implemented without a coherent and objective policy for distinguishing those cases that meet the threshold test for an act of terrorism and those that do not. Public prosecutors and criminal courts have at their disposal ample means to investigate, prosecute and punish acts of violence within the provisions of the ordinary criminal law. They should immediately cease having recourse to the anti-terrorism legislation in this politically delicate and potentially explosive context.
“In order to pave the way for an integrated national strategy, no further arrests of Mapuche land protestors should take place in reliance on the anti-terrorism legislation; no further charges of Mapuche land protestors should be brought under the anti-terrorism legislation; the existing charges pending against Mapuche land protestors who currently face prosecution under the anti-terrorism legislation should be reviewed, and prosecutions for common criminal law offences substituted; and a mechanism should be introduced enabling a review of the convictions and sentences imposed on past Mapuche land protestors under the anti-terrorism legislation to bring their situation into line with this change of policy. Those who have been convicted in reliance on the testimony of anonymous witnesses should be given the right to have their convictions reviewed and, where appropriate, a retrial ordered which would take place under the provisions of the ordinary criminal law, without recourse to anonymous testimony.”
“If the public prosecutors are not prepared voluntarily to adopt such a policy at this time, then Parliament should enact the legislation necessary to oblige them to do so, and should ensure that this change of prosecution practice is urgently brought about. There should be no question of impunity for the crimes that have been committed. The rights of the victims of the violence must also be adequately protected. But this can be achieved by the impartial and effective enforcement of the ordinary criminal law.”
“My third recommendation relates to the urgent need to end the current situation of de facto impunity for the crimes committed by law enforcement officials against members of the Mapuche community over the past decade. Activist Mapuche communities have been subjected to the systematic use of excessive force during searches of their communities, and the crimes that appear to have been committed by members of the special forces of the Carabineros in the past have gone unpunished. The Special Rapporteur welcomes recent efforts by the central Carabineros to address this problem, and to promote a constructive approach to community relations through the adoption of the P.A.C.E. project, and other measures aimed at restricting the use of force and replacing confrontation with dialogue.”
“However, in order to re-build trust it will be necessary to ensure that past crimes of violence by the Carabineros and others against the Mapuche are properly investigated and punished. The Office of the Military Prosecutor has conspicuously failed in its duty to enforce the law through the prosecution and punishment of those responsible. Certain local public prosecutors have adopted an unacceptable stance of institutional indifference to the commission of these crimes, as I have more fully explained in my written statement.”
“In order to redress this situation, I am today recommending the creation of a new independent investigation body with the function of inquiring into crimes of excessive violence committed against Mapuche communities by members of the Carabineros and the investigative police. Such a body should be institutionally independent of both forces, should have the power to investigate and to require the prosecution of criminal and disciplinary proceedings where the evidence justifies this. It should also have power to inquire into the failure of the Office of the Military Prosecutor to secure accountability in the many cases of excessive violence in which it has so far failed to take any effective action.”
“Finally, let me say this. The resolution of this dispute needs to be a political priority for the next incoming Government. It will require a multi-factorial approach and a considerable expenditure of economic and political capital. But in the absence of a national strategy the situation in the Araucanía and Biobío regions is likely to deteriorate still further, and may do so without warning.”
“But the problem with the legislation goes deeper than this. There is widespread dissatisfaction with the current anti-terrorism legislation, which is not confined to its application in connection with Mapuche land protests. The law has also been applied in connection with violent acts of political and social protest, including the placing of bombs in or near ATM machines.”
“Most of those I spoke to agree that the law has proved unworkable in practice and politically divisive. The problems that have been identified relate to structural and definitional deficits in the legislation itself, as well as certain aspects of its implementation. The only proposition on which all sides in this debate seem to agree is that the current state of the anti-terrorism law is unsatisfactory and that it needs to be either amended or repealed, with or without replacement legislation.”
“I share the view of many of those I have spoken to, including senior members of the judiciary, that Chile is not currently facing a significant terrorist threat on its territory. As I have already pointed out, the existing criminal law provides sufficient penalties to address crimes of violent extremism in this country.”
“I therefore intend to consult further with the Government, the judiciary, the legal profession, civil society and law enforcement bodies, with a view to bringing forward proposals in my final country report for the amendment or repeal of the anti-terrorism law 18.314. The Inter-American Court of Human Rights, in the case of Norín Catrimán et al vs. Chile is currently considering some of these challenges, and its judgment is expected reasonably soon. My final recommendations will take account of this decision, and of all relevant international standards. As Special Rapporteur, it is part of my function to provide technical advice to States on their anti-terrorism legislation. My considered advice to the State of Chile will be reflected in the final country report.”