October 27, 2004

VI. MILITARY JUSTICE

Mapuche accused of violence against the police as well as those who have themselves been victims of police violence or abuse, appear, whether as defendants or victims, before military courts. Both prosecutors and judges are members of the armed forces on active service. Judges do not have to have formal legal training, do not enjoy tenure, and are subject to the military chain-of-command. As such, these courts do not provide the guarantees of independence and impartiality required to ensure that Mapuche defendants receive a fair trial or that Mapuche victims have a fair opportunity for redress.

Obstacles Posed by Military Tribunals for Mapuche Seeking Redress for Police Abuse

The contrast between the procedures now being applied in the ordinary criminal courts and the anachronistic system of military justice is apparent in the Araucana, where the two systems coexist side by side. Drawing on the experience of lawyers who have specialized in litigating Mapuche cases in military courts, the Indigenous Rights Program at the University of the Frontier's Institute of Indigenous Studies has described the obstacles presented by the military justice system as follows:

They are very lengthy, bureaucratic trials in which there is practically no right to a defense. That's because the investigation stage is secret and there are no hearings at which arguments and evidence can be produced, except when the judge has already made up his mind about the caseIn most cases involving Mapuche, carabineros carry out an internal inquiry, which is considered part of the investigation (sumario) and constitutes a fundamental resource for the prosecutor and the judge. This inquiry is carried out by the commanding officers of the officials involved, which again affects the possibility of clarifying the events under investigation since the conviction of one or several carabineros on accusations of torture can damage the image of the institution.[102]

Fifteen years have passed since, in a speech inaugurating the judicial year at the end of the military government, Chief Justice Luis Maldonado criticized the lack of independence of military judges. Yet, despite a number of academic studies, there is still no comprehensive bill in Congress limiting the scope of military courts. Until very recently, not even partial reforms had been proposed, such as amendments to remove from military jurisdiction the crime of "ill-treatment by deed" or physical violence (maltrato de obra) against carabineros.[103] When in 1998 Congress approved legislation to introduce torture as a specific offense in the criminal code, it missed the opportunity to transfer police torture and excessive use of force cases to the jurisdiction of ordinary criminal courts. These continue to be classified as military offenses if they are committed by members of the armed forces on active service, or on military or police premises. During the period from 1990 to 1996, almost 70 percent of the cases heard by military courts involved civilians, either as defendants or victims.[104]

Alex Lemn Saavedra

A clear example of the failings of the military justice system is its failure to prosecute the carabineros officer allegedly responsible for the shooting death of seventeen-year-old Alex Lemn Saavedra. On November 7, 2002, Maj. Marco Aurelio Treuer and two other carabineros entered the Santa Alicia estate, near Ercilla, a property owned by the forestry company Mininco that had been occupied by a group of Mapuche families. Treuer was sent to observe the situation on the estate, but his party was spotted by the Mapuche, who challenged and insulted him and his colleagues, some reportedly hurling stones from boleadoras.[105] Treuer and his squad used tear gas and fired numerous rubber bullets to fend off the attack. During the clash, Alex Lemn was hit in the head by a lead pellet from a twelve-gauge shotgun fired by Treuer, and he died in hospital in Temuco five days later.

Two weeks later, the regional prosecutor of Temuco announced that the case would be referred to a military prosecutor, since there was evidence that a member of carabineros might be responsible. After a detailed internal investigation by the carabineros and investigaciones, the plainclothes criminal investigation police, on August 29, 2003, the military prosecutor of Angol decided to prosecute Treuer for "unnecessary violence resulting in death." The prosecutor concluded that:

[w]hen Major Treuer fired the shot there was no real and imminent danger to his physical integrity or that of his subordinates that would justify him firing with the shotgun, consequently the force used at the time of the events was completely unnecessary and had no rational motive that could justify it."

Treuer appealed to the Military Appeals Court (Corte Marcial), which ruled that the prosecution be dropped.The court was apparently satisfied with the account given by Treuer in his defense that he had heard a gunshot and a bullet pass close to himself and his men and decided to use live ammunition to protect them. Other than the police, no other witnesses supported Treuer's version of the events. No material evidence was found to prove that the Mapuche had, in fact, fired weapons: no shell casings other than those of the police were found, and Alex Lemn tested negative on a paraffin test. Attempts by lawyers acting for the Lemn family to reverse the Appeals Court decision and to persuade the military prosecutor to re-launch the prosecution have been unsuccessful. Human Rights Watch has learned that Treuer has been transferred out of the Mapuche region to the city of Rancagua, but is still on active service in the carabineros. The Lemn family has received no compensation for the loss of their son. Alex's father, Edmundo Lemn, told Human Rights Watch that he could not understand how his death could go unpunished.[106]

Alberto Coliir Painemil

Another case that illustrates the failure of military courts to prosecute police officers responsible for grave abuses against Mapuche detainees is that of Alberto Coliir Painemil.Carabineros arrested Coliir, together with this father, his brother, and four other people, on December 16, 1999, while they were asleep at their homes in the communities of Quefquehuenu and inqueleo, near the town of Padre Las Casas, in the Araucana. The procedure was irregular in several ways: the police were traveling in an unmarked vehicle, were not in uniform, and used force to gain entry to the houses in the dead of night. They beat some of the detainees in the presence of their wives and children. Moreover, the arrest warrant in their possession, which they failed to exhibit to the detainees, contained orders for the arrest of only three of them.[107]

After arriving at the police station in Padre Las Casas, Ruperto Coliir, Alberto's brother, was left handcuffed face down on the floor for at least four hours. Police then made him stand all morning handcuffed to a post in the yard. Alberto Coliir was beaten, kicked, and hit with a rubber object. Later he was taken to an office in the building, where he was subjected to a torture known as the "dry submarine" (a plastic bag is held over the victim's head making him gasp for breath). After repeated applications of the bag, Coliir passed out. After he regained consciousness, his interrogators persisted, shocking him with electricity while questioning him about the names of people involved in Mapuche protests and land occupations.[108]

On December 23, 1999, Mapuche leaders from the communities affected presented a formal complaint to the Temuco military prosecutor. Coliir's lawyer produced medical evidence including an x-ray that showed a fractured rib and a doctor's report describing extensive bruising. Yet, in 2001 the military court of Valdivia closed the case for lack of evidence that a crime had been committed. In August 2003, Julio Pino Urbina, a carabinero official who allegedly had received death threats from his superiors after protesting police abuses, was granted political asylum in the United Kingdom.[109]Pino informed the British immigration judge that his fellow police officers had told him about Coliir's torture.

In part based on Urbina's claims lawyers acting for the victims asked the Appeals Court to reopen the investigation and the case against four policemen allegedly responsible for the abuses. However, in August 2004, the Appeals Court upheld the trial court's decision to close the inquiry.[110]

Daniela ancupil

In January 2001, carabineros returning from a land eviction in the district of Galvarino shot and wounded a thirteen-year old Mapuche girl, Daniela ancupil, under circumstances that remain murky but that cry out for investigation. Passing by Daniela's house, which is about eight kilometers from the site where Mapuche had occupied an estate, the police stopped their bus. One of them got out and subsequently shot Daniela with a shotgun in the back; the details of the events that preceded the shooting remain unclear. Although the occupants of the bus and those authorized to carry the weapon involved were identified, no one has been charged with the attack, and the officers in the bus have been transferred to other parts of the country, hindering the investigation. A year and a half later, in July 2002, unidentified individuals in civilian clothes abducted Daniela for several hours shortly after her defense lawyer, Jaime Madariaga, had presented a request for the police responsible for the January 2001 attack to be charged. Her captors blindfolded Daniela and questioned her about the participation of members of her family in the CAM. They also threatened to kill Madariaga if he did not drop the action against the police. A few days later, unidentified individuals set fire to Madariaga's car, destroying it completely. To this day, no one has been charged for Daniela's abduction, or the destruction of Madariaga's car.[111]

Use of Military Tribunals against Mapuche Defendants Accused of Attacks on Police

Bureaucratic delays and lack of transparency are equally evident in proceedings by military courts investigating assaults by Mapuche on members of the carabineros. Military prosecutors are currently investigating at least fifteen complaints of violence by Mapuche against carabineros (seven in Temuco, six in Angol, and at least three in Valdivia). One of the cases still under investigation involves Jos Llanca Ailla, who is one of six mapuches accused of attacking two carabineros in a confusing incident that took place on April 24, 2003. The two officers, who were not in uniform at the time, arrived at the Fundo Ginebra, near Ercilla, to arrest Llanca, who was wanted for arson. They testified later that members of the community, including Llanca, attacked them after forcing open the door of the caretaker's house, where the officers had taken refuge.Llanca reportedly stabbed and beat them and Llanca himself was hit in the face with a spade. One year and five months later, the military prosecutor's investigation has still not been concluded.

Llanca, now in prison in Temuco awaiting trial for illicit terrorist association, told the Indigenous Peoples' Rights Watch a very different version of the story. While he was sowing in a field near the manor house of the Ginebra estate, he said, several carabineros jumped on him to arrest him. Llanca tried to fight them off with a stick but they overpowered him and continued to beat and kick him for about fifteen minutes until he was unconscious and covered in blood. After more Mapuche came to fight the police, Llanca was put on a horse and managed to escape. On May 6, 2003 a large squad of police including carabineros and investigaciones surrounded the home of Llanca's sister, where he had taken refuge, beat down the door, broke the windows, and threatened to kill everyone there including the children. Still weak from his injuries, Llanca gave himself up.[112]

Military prosecutors are investigating several other incidents involving alleged aggression by Mapuche against the police and police aggression against Mapuche.The need for such cases to be dealt with by an independent court that can assess evidence from both sides impartially is obvious.As in the example of Llanca, the police and the Mapuche accounts of what occurred in these incidents differ radically. An example was the violent eviction on June 10, 2003, of Mapuche students from a CONADI office that they were occupying in Temuco. Twenty-nine students were arrested and five students and several police officers were injured during the operation to clear the building. The Indigenous Rights Program at the University of La Frontera, which interviewed many of the students and inspected the building afterwards, concluded that the police had acted with excessive force. At least ten carabineros allegedly beat student leader Julio Marileo on the face and body after the police had taken him out of one of the offices. Police also reportedly beat several of the injured students in buses taking them to hospital. The military prosecutor of Temuco, meanwhile, continues to investigate charges that protesters attacked the police and used molotov cocktails.[113]

A clear doctrine has evolved in the jurisprudence of international human rights bodies over the last fifteen years that the jurisdiction of military tribunals over civilians violates the due process guarantees protected in art. 14 of the International Covenant on Civil and Political Rights (ICCPR). In its General Comment No. 13, issued in 1984, the Human Rights Committee (a U.N. expert committee charged with interpreting the ICCPR) held that while the Covenant did not prohibit military tribunals, their use to try civilians must be "very exceptional and take place under conditions which genuinely afford the full guarantees stipulated in art. 14."[114]

During the 1990s, the position of the Human Rights Committee on military tribunals became more robust still. It rejected their use to try civilians under any circumstances, or to try military personnel for infractions other than those committed in exercise of military functions. This jurisprudence includes the Committee's "concluding observations" on the reports submitted by States Party to the Covenant, such as Algeria (1992), Colombia (1993), Russia (1994), Peru (1996), Poland (1999), and Cameroon (1999), as well as decisions on individual cases.In the case of Chile, the Committee noted in its 1999 concluding observations:

The wide jurisdiction of the military courts to deal with all the cases involving prosecution of military personnel and their power to conclude cases that began in the civilian courts contribute to the impunity which such personnel enjoy from punishment for serious human rights violations. Furthermore, that Chilean military courts continue to have the power to try civilians violates art. 14 of the Covenant. Therefore, the Committee recommends that the law be amended so as to restrict the jurisdiction of the military courts to trials only of military personnel charged with offences of an exclusively military nature.[115]

Other U.N. human rights monitoring bodies such as the Committee against Torture, the Committee on the Rights of the Child, and the Working Group on Arbitrary Detentions, have adopted a similar approach.

The inter-American system of human rights protection specifically restricts military jurisdiction over human rights violations. The Inter-American Convention on Forced Disappearance of Persons expressly states that members of the military or other state actors involved in forced disappearances shall not enjoy military jurisdiction.[116]The Inter-American Court of Human Rights has opposed the use of military tribunals to try military personnel in cases of human rights violations. Commenting on the investigation by a military court into the prison massacre of El Frontn in Peru, the court noted:

In a democratic Government of Laws the penal military jurisdiction shall have a restrictive and exceptional scope and shall lead to the protection of special juridical interests, related to the functions assigned by law to the military forces. Consequently, civilians must be excluded from the military jurisdiction scope and only the military shall be judged by commission of crimes or offences that by its own nature attempt against legally protected interests of military order.[117]

Under no circumstances may human rights violations be considered crimes related to the functions assigned by law to military forces.

The Inter-American Court of Human Rights has also taken a position against the trial of civilians by military courts. In a case involving the trial by a Peruvian military court of a Chilean national on charges of treason, the court argued:

Having no military functions or duties, civilians cannot engage in behaviors that violate military duties. When a military court takes jurisdiction over a matter that regular courts should hear, the individual's right to a hearing by a competent, independent and impartial tribunal previously established by law and, a fortiori, his right to due process is violated. That right to due process, in turn, is intimately linked to the very right of access to the courts.[118]

The Inter-American Commission on Human Rights has repeatedly taken the view that military courts do not satisfy the requirements of independence and impartiality of courts of law. In its recommendations to member states included in its 1998 Annual Report, the Commission noted:

With regard to jurisdictional matters, the Commission reminds the member States that their citizens must be judged pursuant to ordinary law and justice and by their natural judges. Thus, civilians should not be subject to military tribunals. Military justice has merely a disciplinary nature and can only be used to try armed forces personnel in active service for misdemeanors or offenses pertaining to their function. In any case, this special jurisdiction must exclude crimes against humanity and human rights violations.[119]

The opinion of the international community on the issue of military tribunals is consistent.It is time for the Chilean government to introduce the reforms necessary to limit the jurisdiction of military courts to infractions of military regulations, to transfer investigations into crimes committed by civilians to ordinary courts, and to provide civilians who have been convicted by military courts with an opportunity to have their case reviewed by a competent court.

[102]Los Derechos de los Pueblos Indgenas en Chile, p. 244-245.

[103] In December 2003, the Chamber of Deputies approved a bill to remove the crime of "desacato" (insult to authorities of state) from Chilean laws. The bill includes a proposal to place under civilian jurisdiction the crime of sedition, when committed by a civilian. It also proposes to include under civilian jurisdiction the crime of "maltrato de obra" (art. 416 of the Code of Military Justice). In July the government gave the bill "extreme urgency," which means that it had to be debated in a week. However, at this writing the bill was still pending.

[104] Jaime Couso Salas, "Competencia de la Justicia Militar: una Perspectiva Poltica Criminal," in Haca una Reforma de la Justicia Militar: Delito Militar, Regimen Disciplinario, Competencia y Organizacin (Santiago: Escuela de Derecho, Universidad Diego Portales, Cuadernos de Anlisis Jurdico, October 2002), p. 73-78; Jorge Mera (ed), Justicia Militar y Estado de Derecho, (Santiago: Law Faculty, Diego Portales University, Cuadernos de Anlisis Jurdico No. 40, 1998).

[105] Testimony of Major Marco Aurelio Treuer.

[106] Human Rights Watch interview with Edmundo Lemn Necul, Angol, August 9, 2004.

[107]Los Derechos de los Pueblos Indgenas en Chile, p.253.justicia_inglesa.htm

[108] "Texto de la denuncia de siete mapuches que sufrieron torturas," Equipo Nizcor [online], [http://www.derechos.org/nizkor/espana/doc/endesa/denuncia.html(retrieved August 31, 2004).

[109]Pedro Cayuqueo, "Ex polica denuncia tortura a mapuches, Kolectivo Lientur, September 12, 2003 [online], http://www.nodo50.org/kolectivolientur/justicia_inglesa.htm (retrieved August 31, 2004).

[110] "Corte Marcial sobresee causa por torturas contra carabineros de Padre Las Casas," El Gong, August 13, 2004 [online], http://www.diarioelgong.cl/news/one_news.asp?IDNews=22690(retrieved August 31, 2004).

[111]Los Derechos de los Pueblos Indgenas, p. 248.

[112]Indigenous Peoples' Rights Watch (Observatorio de Derechos de los Pueblos Indgenas), "El caso de Jos Llanca Ailla," unpublished document. Copy on file at Human Rights Watch, October, 2004.

[113]Los Derechos de los Pueblos Indgenas, p. 252; "Todo fue como en una guerra," El Gong, June 11, 2003 [online], http://www.diarioelgong.cl/news/one_news.asp?IDNews=12110(retrieved September 22, 2004).

[114] United Nations Human Rights Committee, General Comment No. 13: Equality before the courts and the right to a fair and public hearing by an independent court established by law (art. 14), April 13, 1984 [online], http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/bb722416a295f264c12563ed0049dfbd?Opendocument(retrieved September 22, 2004).

[115]Concluding Observations on the fourth periodic report of Chile, March 30, 1999. CCPR/C/SR.1740, para. 205. The comment about the power of military tribunals to conclude cases begun in the civilian courts is probably a reference to the fact that civilian judges initially investigate such crimes until they have established that a member of carabineros on active duty as involved or that the crime was committed on military premises. As soon as judges have established this, they usually declare themselves incompetent and transfer the case to a military court.

[116] International Commission of Jurists, Military Jurisdiction and International Law: Military Courts and Gross Human Rights Violations (Geneva: International Commission of Jurists, 2004), p. 113.

[117] Inter-American Court of Human Rights, Durand and Ugarte v. Peru, judgment of 16 August 2000, Series C No. 68, paras.117 and 118.

[118] Inter-American Court of Human Rights, Castrillo Petruzzi et al. v. Peru, Judgment of 30 May 1999, Series C No. 52, para. 127.

[119]Annual Report of the Inter-American Commission on Human Rights (1998)OEA/Ser.L/V/II.102, April 16, 1999, ch. VII, para. 1 [online], http://www.oas.org/main/main.asp?sLang=E&sLink=http://www.oas.org/OASpage/humanrights.htm (retrieved September 3, 2004).