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II. Recommendations

On Anti-Terrorism Trials   

Prosecutions for terrorism are an unjustified response to acts of criminal violence committed in the context of the land conflicts involving the Mapuche in Chile. Application of the anti-terrorism law has serious due process consequences for defendants and may gravely undermine the presumption of innocence that underlies the new code of criminal procedure. Rodolfo Stavenhagen, the United Nations special rapporteur on the situation of human rights and fundamental freedoms of indigenous people, has stated: “Charges for offences in other contexts (‘terrorist threat,’ ‘criminal association’) should not be applied to acts related to the social struggle for land and legitimate indigenous complaints.”1

Human Rights Watch urges the government of President Lagos to:

  • Refrain from opening new prosecutions of Mapuche under the anti-terrorism law unless serious crimes were committed against life, liberty, or physical integrity.
  • Carry out a full and independent review of the cases in which Mapuches have been tried and convicted on terrorism charges, in order to verify observance of due process, and, if necessary, order a new trial with full respect for fair trial guarantees.
  • Propose amendments to the anti-terrorism law to ensure that only the gravest crimes of violence involving attacks on life, liberty, or physical integrity are considered terrorist crimes, and then only when the other conditions specified in the law are met.
  • Prevent unwarranted use of the anti-terrorism law by reforming the present provisions of the Code of Criminal Procedure that allow any person to lodge an accusation for terrorism. Given the special severity of the anti-terrorism law, the government and the attorney general’s office should have exclusive powers to open prosecutions for terrorism.

The names of prosecution witnesses, may, in exceptional circumstances, be kept confidential and their release to the press or the public may be prohibited. To ensure respect for due process and the right to defense, the political and judicial authorities should ensure that the following principles are applied regarding protected witnesses:

  • Even when the court agrees to protect the identity of prosecution witnesses from the press and the public, their names should always be made available in confidence to the defendants and their counsel, except in the most extreme circumstances, when a clear and specific danger to the witness has been proven.  The prosecution, however, must first exhaust other means of protecting the witness that do not undermine defendants’ rights.
  • All decisions concerning the protection of prosecution witnesses that affect the conduct of the trial must be subject to appeal.
  • In instances where the court orders confidentiality, the accused, the prosecutor, and state parties should be strictly prohibited from violating the order by releasing confidential information to the press or public. This should include direct and indirect identification of witnesses.

Criminal acts should never be confused with legitimate protest activities or the expression of views on a conflict, however controversial. Consequently, the government should:

  • Abide by the recommendation of the U.N. special rapporteur, that “[t]he necessary measures should be taken to avoid criminalizing legitimate protest activities or social demands.”2
  • Seek to promote a public debate, with the participation of the interested parties, on ways to resolve the problems faced by Chile’s indigenous peoples. 
  • Introduce the legislative and political reforms that are necessary to achieve the same objective.

On Military Justice

Reform of the present, wide jurisdiction of military courts is a long overdue obligation of the Chilean state. The reform is necessary both to ensure due process and fair trials for those accused of offenses against the police, and to provide access to impartial justice for victims of abusive conduct by police or military officials. The government should:

  • Introduce legislation to remove from the Code of Military Justice all offenses that allow the trial of civilians as defendants. Civilians should be judged solely and exclusively by ordinary criminal courts under the provisions of the Criminal Code and the Code of Criminal Procedure.
  • Introduce the necessary reforms so that human rights abuses by carabineros, such as homicides, excessive or unjustified use of force, illegal arrest, and torture or ill-treatment of detainees, are investigated by ordinary prosecutors and judged in ordinary courts.
  • Transfer to ordinary courts investigations of alleged human rights abuses by military courts that are still in progress.
  • Require military justice authorities to publish the results of military court investigations into alleged abuses committed by carabineros since the start of land-related conflicts in the regions of Bío Bío and the Araucanía.

On Police Operations

The government can take several measures to prevent abusive conduct by carabineros while conducting operations in Mapuche communities.  For this purpose, we recommend that it:

  • Issue strict instructions to carabineros to treat members of Mapuche communities with respect and severely sanction the unwarranted use of force and any verbal abuse or racist slurs by police officers. 
  • Conduct a review of police operating procedures and rules of engagement during operations in conflict areas, particularly regarding the use of lethal force. These procedures should be based on relevant international standards, such as the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials and art. 3 of the Code of Conduct for Law Enforcement Officials.
  • Consider the establishment of a human rights office in the regions of Bío Bío and the Araucanía under the auspices of carabineros to process complaints against the police and establish dialogue with Mapuche communities. Members of this office should participate as observers during police missions, with full guarantees of independence.
  • Recommend to the central authority of carabineros that it periodically publish the results of internal inquiries into abusive practices by police officers and the measures taken.
  • Propose legislation for the establishment of a human rights ombudsman’s office as contemplated in the electoral program of the ruling coalition in 1989.

[1] United Nations Economic and Social Council, Report of the special rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Mr. Rodolfo Stavenhagen, submitted in accordance with Commission resolution 2003/56, E/CN.4/2004/80/Add.3., November 17, 2003, para. 70.

[2] Ibid., Executive Summary.

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