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I. Summary

The strategy employed by the Chilean government to quell unrest sparked by land conflicts in the country’s southern regions is apparently bearing fruit. The level of violence in the zone has decreased since 2002, and the organization the government holds responsible for the worst violence has apparently been disbanded.

Yet the government’s successes come at a high price for the Mapuche people, who for centuries inhabited the region as an independent people. While the living standards of the rest of the country continue to improve, Mapuche in the south live in an impoverished enclave. On top of the discrimination from which they have suffered for years, many now feel the additional weight of political persecution.

The government of Chilean President Ricardo Lagos insists there is no terrorism in Chile. Yet that government’s recourse to anti-terrorism statutes to deal with organized Mapuche communities has brought restrictions on due process rights that are not justified by the alleged offenses.  At the same time, government use of military courts to address alleged police abuses against the Mapuche—courts which have a record of acting as guarantors of impunity for those who abuse the rights of indigenous peoples—prevents Mapuche whose rights are violated from gaining redress. 

Since early 2002, seven Mapuche individuals and a pro-Mapuche activist have been charged and convicted under a modified version of the anti-terrorism statute left in place by the military government of Gen. Augusto Pinochet. All are serving prison sentences of up to ten years under the anti-terrorism law for arson or threats of arson committed against the properties of landowners and forestry companies. Sixteen, including five of those already convicted, are currently on trial for belonging to a group allegedly dedicated to terrorist acts (“illicit terrorist association”), with a possible sentence of fifteen years for those convicted of being a leader of the group.  If convicted again some of those accused could go to prison for up to twenty-five years. Many other Mapuche activists and suspects, moreover, have been held in prolonged pre-trial detention under the anti-terrorism law, some for more than a year, before charges were dropped.

These prosecutions raise serious due process concerns. The unjustified use of terrorism charges keeps Mapuche leaders in pretrial detention for months. Investigations conducted by the public prosecutor can be kept secret for up to six months. At the trials themselves, key evidence may be admitted in oral hearings from “faceless” witnesses whose identity is withheld from the defense.

Apart from the due process problems presented by the use of the anti-terrorism law (such cases are heard in ordinary courts), Mapuche individuals accused of violence against the police are tried in military courts in proceedings that do not meet basic requirements of independence and impartiality. It is little wonder, then, that many Mapuche feel that Chile’s progressive new criminal justice system, in force since 2000 in the region most affected by the conflicts, bestows its benefits on everyone but them.

Ever since land conflicts erupted in Chile in the mid-1990s, the Mapuche people have suffered abuses during police incursions into communities suspected of supporting the protests or harboring participants. Military courts exercise exclusive jurisdiction over abuses committed by carabineros, the uniformed police, which is a branch of the armed forces. In the past, military tribunals ensured that those responsible for violations of human rights under the military government escaped punishment. Today, continuing military jurisdiction over abuses committed by members of the police force still obstructs an impartial and transparent investigation of such incidents.

Chile’s largest indigenous people, the Mapuche, mainly inhabit Bío Bío, Araucanía, and Los Lagos (Chile’s Eighth, Ninth, and Tenth Regions, respectively). Over several decades, private owners and large forestry companies have converted much of the area into massive pine and eucalyptus plantations. The Mapuche communities are impoverished and discriminated enclaves whose living standards are well below the national average on all social indicators. Some have benefited from a government program that buys up and hands over contested land to indigenous peoples, but the resources available to the program have been insufficient to meet the needs of the Mapuche. Since the mid-1990s some communities have resorted to illegal action against forestry companies to draw attention to their claims, such as occupying concessions and burning forests and equipment. Although the number of communities allegedly involved in illegal acts is small (2.4 percent according to the minister of the interior), their grievances and demands are widely shared among the Mapuche people.

The use of the anti-terrorism statute against Mapuche began with the current government of President Lagos. The previous government of Eduardo Frei (1994-2000), which typically used the ordinary criminal code, initiated three prosecutions against Mapuche under the Law of State Security, a 1958 statute intended to combat subversion, rebellion, and political violence. As the number of violent incidents in the zone increased and pressure from landowners for a firmer government response mounted, the Lagos government turned to the anti-terrorism law as a more powerful instrument. To date, the government has initiated at least six anti-terrorism prosecutions against leaders and participants alleged to have been involved in illegal actions.

The anti-terrorism law is a legacy of the military government (1973-1990). General Pinochet introduced it in 1984 to deal with the actions of armed political groups that carried out kidnappings, assassinations, and attacks on police stations using assault rifles and rocket-propelled grenades. It is the harshest law in the Chilean statute book, and in some ways its provisions have been toughened since the return to democracy.  It doubles the normal sentences for some offenses, makes pretrial release more difficult, enables the prosecution to withhold evidence from the defense for up to six months, and allows defendants to be convicted on testimony given by anonymous witnesses. These witnesses appear in court behind screens so that the defendants and the public cannot see them.

Under Chile’s Constitution, those convicted of terrorism are barred for fifteen years from holding public office, occupying teaching posts, exercising trade union or business responsibilities, or practicing journalism. Moreover, they are not eligible for a presidential pardon.

The worst acts for which the Mapuche are accused are indeed crimes contemplated in the criminal code. They involve the destruction of private property, such as incendiary attacks on woods, crops, buildings, logging company trucks and machinery, and, in some cases, inhabited homes, as well as threats to commit such acts. A few Mapuche have been convicted in the past of serious violence against individuals, such as the burning of forestry vehicles whose occupants narrowly escaped with their lives.

However, after ten years of land occupations and sporadic violence—including clashes between indigenous communities and police, forestry guards, and private landowners—actions byMapuche have not claimed a single life. Many of the Mapucheon trial for terrorism are poor farmers and traditional leaders of their communities. Others are younger Mapuche who have lived in urban areas, studied in universities, and have returned to organize their communities around land claims that in many cases go back for generations. The weapons sometimes deployed are rudimentary, such as Mapuche-style slingshots (boleadoras), sticks and stones, and only in a few cases shotguns. The economic losses caused by the incendiary attacks are considerable. Nevertheless, the crimes committed in most cases are crimes against property and do not fit the characterization of terrorism contained in international treaties, including the Inter-American Convention against Terrorism, which requires grave violations against persons.

Mapuche confronting police with wetruves (boleadoras) in the fundo El Carmen of forestry company Arauco, Temuco.  February 13, 2001.
© 2003 Archivo Periódico Azkintuwe  

Although the international community has not agreed on a precise definition of terrorism, it is widely understood that the term applies only to the gravest crimes of political violence. This is conveyed eloquently, for example, in the working definition that terrorism expert A.P. Schmid gave to the United Nations Crime Branch in 1992: “[t]errorism is the peacetime equivalent of a war crime.” In the popular mind terrorism evokes images of innocent civilian hostages held captive in besieged buildings, suicide bomb attacks, and plane hijackings, not to mention the indiscriminate slaughter and destruction of the September 11, 2001, attacks. Chile’s use of the anti-terrorism law for crimes committed by Mapuche in the context of land conflicts, which do not approach this threshold of seriousness, is not only inappropriate but also reinforces existing prejudices against the Mapuche people.

In December 2000 a new code of criminal procedure designed to strengthen defendants’ rights was introduced in the Araucanía, the region most affected by the land conflict. The new code replaced the former inquisitorial procedure with an accusatorial one and written proceedings with oral trials in open court. It has greatly enhanced the fairness, impartiality, and transparency of criminal trials. However, by using anti-terrorism legislation the government is able to sidestep many of the protections that should benefit Mapuche like all other defendants.

For a government under pressure to show results, use of the anti-terrorism law appears intended to remedy the low conviction rate that has characterized prosecutions of Mapuche under other laws. According to the Public Ministry and the government, working under ordinary laws, prosecutors found it difficult to obtain evidence sufficient to convict those believed responsible for these incendiary attacks, in part due to the reluctance of witnesses to testify because of intimidation or fear of reprisals. The special provisions of the anti-terrorism law allow prosecutors to overcome this obstacle by withholding the identity of witnesses from the defendants and their attorneys, as well as from the general public. They also give the public ministry up to six months to accrue evidence before turning it over to the defense. Prosecutorial expediency is no excuse for applying legislation that does not fit the crime and that seriously curtails the rights of defendants.

Human Rights Watch fears that the current international climate has provided support for the Lagos government’s inappropriate use of the Chilean anti-terrorism law. The U.S.-led campaign against terrorism has, unfortunately, become a cover for governments who want to deflect attention away from their heavy-handed treatment of internal dissidents. Today, governments in countries around the world are attempting to use anti-terrorism or national security measures as a means of avoiding international scrutiny of dubious human rights practices.    

Although the anti-terrorism law contains checks to prevent abuse of detainees’ rights, it weakens some of the due process rights guaranteed to all defendants in any criminal proceedings. The use of “faceless” witnesses is one of its most troubling aspects. It affects the ability of the defense to rebut prosecution evidence, since the identity and demeanor of witnesses often has direct relevance to their credibility. Witnesses may themselves have criminal records or a personal grudge or political animosity against the defendants. Moreover, in the case of malicious testimony, the defense cannot accuse of perjury witnesses it is unable to identify. In a worst case scenario, witnesses could simply lie with impunity.

Art. 14(3)(e) of the International Covenant on Civil and Political Rights states that the accused shall be entitled “[t]o examine or have examined the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.” According to General Comment 13 (21), an authoritative interpretation of the Covenant, the purpose of this provision is to “[g]uarantee to the accused the same legal powers of compelling the attendance of witnesses and of examining or cross-examining any witnesses as are available to the prosecution.”   It is a fundamental principle of fair trial that this principle of equality be applied throughout the criminal process.

Circumstances undoubtedly exist in which it may be legitimate to conceal the identity of prosecution witnesses from the press and the general public. There may be genuine concern for the physical and psychological well-being of witnesses, or a pressing need to protect them and their families from reprisals and shield them from the stigmatizing effect of public exposure. Under only the most exceptional circumstances, however, when there is a clear, specific danger to the witness and all other possible means of protection have been exhausted, may information on the identity of prosecution witnesses be withheld from the defendants and their lawyers.

Chile’s Supreme Court has further tilted the field in favor of the prosecution by countermanding judges who have upheld the due process rights of Mapuche defendants. In July 2003, it annulled a unanimous trial court verdict in the so-called “case of the loncos” in which the accused were Pascual Huentequeo Pichún Paillalao and Segundo Aniceto Norín Catriman, two Mapuche community chiefs (“loncos”), and Patricia Troncoso, a sympathizer. The three were accused of burning woods and manor houses on two estates near Traiguén, one of which belongs to Juan Agustín Figueroa, a former minister of agriculture who is currently a member of the Constitutional Court. The trial court had rejected charges of terrorist arson against all three of the accused after finding flaws in the evidence, but the Supreme Court ordered a retrial, accepting an argument by Figueroa, the public prosecutor, and regional authorities, that key evidence had not been properly evaluated in the verdict.  In September, 2003, another court later sentenced the two loncos to five years of imprisonment for “terrorist threat.”

In the Poluco Pidenco case, the Supreme Court disqualified and removed a judge who had insisted that the anti-terrorism law was not applicable and had ordered the prosecution to reveal to the defense the names of protected witnesses.  Both of these highly questionable Supreme Court decisions cast doubt on the impartiality of this body in its handling of Mapuche cases. 

In addition to the human rights violations inherent in using the anti-terrorism law in land conflict, Mapuche have frequently been victims of physical abuse and degrading treatment by the police. This has occurred during operations to evict occupiers of disputed land and during raids into communities to capture suspects and seize evidence, as well as during protests in the cities of the Araucanía, particularly Temuco. A disturbing feature of these incidents has been the ill-treatment of women and old people, especially loncos and machis (spiritual healers, who are generally women).  Some of the worst examples occurred in 1999 in Temulemu (the community of one of the loncos convicted in the “case of the loncos”) and in 2000 in the nearby community of Temucuicui. Beatings during arrests, disproportionate and indiscriminate use of riot control weapons such as shotguns, racist insults, and destruction or theft of domestic articles are still common occurrences during such operations. This report documents three such instances in 2004.

At present, the carabineros have no mechanism in place to monitor observance of human rights standards during police operations in the areas affected by land conflicts. Nor has the government progressed significantly with plans announced before the elections that ended the military government in 1989 to create a public advocate or human rights ombudsman. Such an office could make an important contribution to improving respect for human rights in regions affected by land conflicts, providing victims with an opportunity for redress that is independent of the courts and helping to mediate between the opposing sides.

As noted above, those seeking justice and redress for abuses committed by the police currently have no access to an independent and impartial court. Military courts still assert sole jurisdiction for abuses such as torture, homicide, or the unjustified use of force by carabineros, if committed while on duty or on military premises. Like the accused policemen, military judges are serving officers of the armed forces. They are not necessarily trained as lawyers, and they are also subject to the military chain-of-command. On the basis of these factors alone such courts lack the minimum independence that is essential to a fair hearing. In practice, the great majority of complaints against carabineros for ill-treatment or excessive force bring no result. In a typical case, the investigating prosecutor will turn the case over to a military official as soon as evidence emerges that police on active service were involved. Investigations then continue for years without resolution or are shelved, and those responsible are hardly ever prosecuted.

A clear example of this impunity is the case of Alex Lemún Saavedra, a seventeen-year-old Mapuche who in November 2002 was hit by a shotgun pellet fired by a carabinero officer during the occupation of a forestry estate near Ercilla. The pellet lodged in Lemún’s brain, and he died in a hospital five days later. Although a military prosecutor charged the policeman responsible, Maj. Marco Aurelio Treuer, with “unnecessary violence resulting in death,” the military appeals court accepted Major Treuer’s defense that he acted in self-defense and ordered the charges dropped. There was no credible evidence to support the officer’s claim that the police contingent had been fired on.

In addition, military tribunals exercise exclusive jurisdiction over civilians accused of violence against the police. Over the last two years the Temuco military prosecutor has instituted seven proceedings against Mapuche for assaulting carabineros during protests, clashes, and land occupations; the Angol military prosecutor has filed charges in six cases; the military prosecutor of Valdivia in three. Some of these investigations have dragged on for more than two years without a verdict. The use of military tribunals in such cases violates the fair trial guarantees of art. 14. of the International Covenant on Civil and Political Rights.

It is time that the Lagos government took seriously its obligation to ensure effective redress to victims of police abuse by ensuring that ordinary courts have jurisdiction over crimes that involve human rights violations. It must also take all the measures necessary to end the jurisdiction of military courts over all civilians. Reform of the system of military justice, a principle demand of human rights groups under the military government, is a task that should not be delayed any longer.

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