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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
generals office should have exclusive powers to open prosecutions for
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
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 Chiles indigenous peoples.
- Introduce the legislative and political reforms that are
necessary to achieve the same objective.
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
- 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 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 ombudsmans office as contemplated in the electoral program of the
ruling coalition in 1989.
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.