<<previous  |  index  |  next>>

IV. Anti-Terrorism Trials

The use of the anti-terrorism law is inappropriate in land conflict cases and strips defendants of a range of due process protections.  Some of its provisions violate essential fair trial guarantees protected by the International Covenant on Civil and Political Rights and the American Convention on Human Rights, such as the right of defendants to cross-examine witnesses under the same conditions as the prosecution.

General Pinochet introduced Chile’s anti-terrorism law (Law No.18,314) in 1984 to provide a comprehensive legal weapon for dealing with mounting violent as well as non-violent opposition to the military dictatorship. Used to tackle audacious armed actions by leftist urban guerrilla groups in the mid-1980s—there was a failed attempt on Pinochet’s life in 1986 in which four of his bodyguards were killed—the law was also an instrument for intimidating non-violent dissidents. The law’s use to quell non-violent dissent ended with the return of democracy in March 1990, but Law No.18,314 continued to be used until the mid-1990s against remnants of leftist urban guerrilla groups.

In January 1991, the Aylwin government introduced major amendments to the law as part of a wider effort to bring the public security legislation inherited from the military government into line with human rights standards. In May 2002, the law was again modified to harmonize its provisions with the new code of criminal procedure.

Terrorist Crimes

While the law began life under Pinochet, it was paradoxically the Aylwin government’s reforms that turned it into what prosecutors came to view as a suitable instrument for dealing with the kind of offenses that have characterized land conflicts in the South. Faced by a situation in which the military government had treated terrorism essentially as a political or ideological offense, the Aylwin reforms removed its political connotations and conceived of it simply as an egregious type of violent crime against the person. The preamble to the 1991 Aylwin bill defined terrorism as an “attack against life, physical integrity or liberty by means which produce or may produce indiscriminate harm, with the purpose of causing fear in a part of or all of the population.”²⁵  According to the law, terrorist crimes are committed:

[w]ith the intention of producing in the population, or in part of it, a well-founded fear of falling victim to the same type of crime, either because of the nature and effects of the method used, or by evidence that the act was part of a premeditated plan to attack a specific group or category of persons.²⁶  

The law states that in certain cases a terrorist intention can be inferred from the use of weapons of indiscriminate or mass destruction, such as explosives, incendiary devices, and chemical or biological weapons. Otherwise, the burden is on the prosecutor to establish evidence of a terrorist intention.²⁷

The law lists the following crimes as potential crimes of terrorism: murder; mutilation; infliction of wounds; kidnapping; hostage-taking; sending explosive substances; arson; derailing of trains; attacks on ships, planes, trains, and buses (including hijacking); assassination of the head of state and/or leading political, judicial, and religious figures, or of internationally protected persons; the detonation of explosive or incendiary substances that endanger life; and illegal association to commit any of these crimes.²⁸

The most questionable crime included in this list is precisely the one most frequently applied to the Mapuche—that is, arson, including its less serious forms. Offenses under the anti-terrorism law include setting fire to uninhabited buildings and “woods, cornfields, pasture, scrub, fences, or fields.”²⁹ The anti-terrorist law in force during the Pinochet era made no reference to arson. The original bill presented by the Aylwin government did not contemplate it either, but it was introduced during the bill’s discussion in committee in the lower house of the Chilean Congress.³⁰

Arson is included in the ordinary criminal code in a chapter that refers to crimes against property, rather than in one referring to crimes against the person. It is the only crime of violence in the anti-terrorism law that does not involve a direct or deliberate threat to life, liberty, or physical integrity. Inclusion of arson of this less serious sort among a list of terrorist offenses is highly questionable given the much more serious crimes contemplated by international conventions dealing with terrorism.

International law considers terrorist crimes to be of extraordinary gravity: the “peacetime equivalent of a war crime,” as terrorism expert A.P. Schmid told the United Nations Crime Branch in 1992. Its core elements include deliberate attacks on civilians, hostage taking, and the killing of prisoners. In the words of United Nations Secretary-General Kofi Annan: “By its very nature, terrorism is an assault on the fundamental principles of law, order, human rights, and the peaceful settlement of disputes upon which the United Nations is established.”³¹

Most of the twelve United Nations conventions and protocols on terrorism deal individually with its specific forms (hostage-taking, bombings, seizure of aircraft, attacks on maritime navigation, and so on), each of which involves violence and potential harm to persons.  The only convention that includes a definition of terrorism is the International Convention for the Suppression of Financing of Terrorism. In this treaty terrorism is defined as:

Intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.³²

The Inter-American Convention against Terrorism, adopted in June 2002 and signed by thirty-three countries including Chile, refers only to the offenses defined under the United Nations conventions and protocols already mentioned. As noted already, all involve grave violence against persons.³³

Crimes considered extraditable offenses in the European Convention on the Suppression of Terrorism also involve attacks on life, liberty, and physical integrity. They include the hijacking of aircraft; unlawful acts against the safety of civil aviation; attacks against the life, physical integrity, and liberty of internationally protected persons; kidnapping and hostage-taking; and any offense involving the use of a bomb, grenade, rocket, automatic firearm, or letter or parcel bomb if this use endangers persons.³⁴

Chile’s Constitution expressly considers that “[t]errorism in any of its forms is by its essence contrary to human rights.”³⁵ The use of antiterrorism legislation to deal with crimes of lesser gravity is inconsistent with that forthright constitutional principle. The consequences for those convicted are serious. The Constitution reserves special punishment for convicted terrorists that far exceeds what applies to ordinary criminals. In addition to the stiffer prison sentences, those convicted may not hold public office, teach in schools or universities, practice journalism, or lead political parties, trade unions, student or professional associations for fifteen years. Moreover, they are excluded from any government pardon except to commute a death sentence to life imprisonment.³⁶ Those charged with terrorist offenses lose the right to vote for the duration of the trial until they are acquitted. They may only be released on bail with the express consent of a higher court composed of all its members in a unanimous vote.³⁷ If they are convicted, they lose their citizenship. After they complete their sentences, their citizenship can be restored, but only by a special law requiring an absolute majority of all members of Congress.

Under current Chilean laws anyone can bring a criminal complaint alleging that a crime of terrorism has been committed against them. Private individuals, companies, the regional government, the Ministry of the Interior, and even the mayor of Temuco, have all initiated terrorism proceedings against Mapuche through such allegations in recent years. Although a judge must first issue a reasoned ruling that the crime be investigated as an act of terrorism (a decision that gives extra powers to the prosecution, as we note below), the fact that any party can lodge a criminal complaint alleging terrorism increases the risk of arbitrary accusations.³⁸

The government’s position on the use of the law is ambiguous. Government officials continue to insist that, while there are prosecutions for terrorism, there is no terrorism in Chile. This is the opinion of Jorge Vives, a senior interior ministry official. When questioned on the issue by a judge in the Poluco Pidenco case, Vives replied:

Your Honor, it’s very simple. In Chile there’s no terrorism, but in Chile terrorist crimes have been committed. Those are two totally different questions….There are two people who were convicted of terrorist crimes, but to say that there are people who have committed terrorist crimes doesn’t mean that there is terrorism in Chile.³⁹

The United States State Department also considers that there is no terrorism in Chile. In a world-wide review of terrorist activity in 2003, the U.S. State Department stated that “[n]o incidents of explicit terrorism occurred in Chile in 2003.”⁴⁰ The report does not mention the application of anti-terrorism legislation in land conflicts in southern Chile. It is difficult to understand, if there is no terrorism in Chile, how eight people in Chile have been convicted on terrorism charges in 2003 and 2004, and how, at this writing, eleven others still face terrorism charges. The most obvious conclusion is that those convicted and facing charges are not really terrorists and are being pursued according to a law that is inappropriate given the nature of the crimes.

Yet Chilean courts have rarely questioned use of the anti-terrorism law in dealing with the typical crimes that have characterized the land conflicts. In some cases, even courts that have acquitted defendants accused of terrorism have not questioned its applicability. A case in point is the already described “trial of the loncos” in which three individuals were accused of setting fire to two manor houses and pine plantations on the Nancahue estate, near Traiguén, in December 2001. In the first trial, in April 2003, the Oral Criminal Court of Angol ruled that the prosecution had established “beyond reasonable doubt” that terrorist crimes were committed even though it found the evidence insufficient to convict the accused as perpetrators of those crimes. The court held that the methods and strategy used in the attacks “[h]ad a malicious intent of causing general fear in the zone, a situation that is public and well-known and which these judges cannot ignore.” The recovery of Mapuche lands was by “[d]irect action, without respect for the legal and institutional order,” using acts of force that had been “[p]reviously planned, agreed and prepared by radicalized groups that seek to create a climate of insecurity, instability and fear in the Eight and Ninth Regions.”⁴¹ In another case, the Poluco Pidenco case discussed below, the Supreme Court disqualified and removed the only judge who had rejected the terrorism charges. The trial court eventually reinstated the charges and five defendants were convicted.

Terrorism charges were also invoked to convict Mapuche leader Víctor Ancalaf Llaupe for setting fire to four trucks and a mechanical digger belonging to the electrical company Endesa in three separate incidents in September 2001 and March 2002, during protests against the Ralco dam.  The case against Ancalaf was brought under the anti-terrorism law by the governor of Bío Bío province, Enrique Krausse Salazar.  Unlike the other cases discussed in this report, this terrorism trial was conducted under the largely written procedures of the old code of criminal procedure, which was still in force at the time in the Bío Bío region, where the incidents occurred. In December 2003, Judge Diego Simpértegui, of the Concepción Appeals Court, sentenced Ancalaf to ten years and one day of imprisonment after finding him responsible in each of the three incidents. In June 2004, the sentence was reduced on appeal to five years and a day after the Appeals Court acquitted him of the first two incidents, finding the evidence weak. Nevertheless, the court upheld the terrorist charge for the third offense.  Among the considerations cited by the court was the use of an incendiary device, as well as the supposed intention to cause fear and to wrest a decision (against Ralco) from the government.⁴²

Although the Office of the Attorney General is autonomous, its officials seem to share the viewpoint of government officials on the use of the law. As we note below, the law gives the prosecution advantages over the defense in the treatment of evidence, particularly through the longer period in which it may be kept secret and the admission of testimony from anonymous witnesses. Also, use of the anti-terrorism law may, under certain circumstances, undermine the presumption of innocence.  In several cases involving Mapuche defendants accused of terrorism, judges cite the terrorist charges as grounds for rejecting defense requests for the accused to be released on bail. The nature of the terrorist accusation, in itself, makes it probable that the accused will be held in preventive detention for months, longer than if the defendant were accused of similar crimes under the ordinary criminal code.

Due Process Restrictions

Law No.18,314 provides law enforcement officers with special tools to deal with terrorist offenses.  Detainees may be held for up to ten days before being presented to a judge and formally charged. This is a week longer than the time permitted in the case of ordinary criminal defendants, although during this extra period the detainee is allowed to receive visits from a lawyer. Once formally charged with a terrorist offense, the detainee’s right to receive visits from family members may be restricted; prosecutors may apply to the judge for powers to tap telephones, intercept correspondence, emails, and other communications with any person, except for the lawyer, for an indefinite period; and, if the prosecutor considers that the physical security of witnesses is at risk, evidence may be kept secret for up to six months.⁴³ All of these powers have been used in cases involving Mapuche.

In the following sections three due process restrictions that typically arise in anti-terrorism trials are discussed: extended pretrial detention, the use of anonymous or “faceless” prosecution witnesses, and the hazard of double jeopardy.

Pretrial Detention

A detainee held on terrorist charges, even if eventually acquitted, is likely to face long periods in pretrial detention due to the seriousness of the terrorist tag: the formal charges have a decisive bearing on such crucial matters as the liberty of the defendant and the access of his or her counsel to prosecution evidence. In deciding to investigate a crime as a terrorist act a prosecutor increases the likelihood that the suspect will remain in prison for the entire period until the trial, or a significant part of it.

The new criminal procedure code allows for periodic reviews of orders for pretrial detention at which the accused may eventually obtain pretrial release.⁴⁴ Under the new code, pretrial detention is permitted only when the judge considers it necessary to ensure the success of the investigation or when the accused is considered dangerous.⁴⁵ Among the facts the court considers are the number of crimes involved and the severity of the penalty attached to them. The court may not order preventive custody when it is out of proportion to the seriousness of the crime or the penalty.⁴⁶ But clearly, if the charges are serious—terrorist arson, for example—judges are likely to approve an order for the defendant’s imprisonment without further question. Most, in fact, have done so in cases of Mapuche accused of terrorist acts.

Indeed, even in ordinary criminal trials, defense lawyers have criticized prosecutors for exaggerating charges to prolong unfairly the period of pretrial detention.

As the Indigenous Rights Program at the University of the Frontier has pointed out:

In this sense, even though the first statement of the charges (formalización) is a unilateral faculty of the prosecutor that may not be challenged, it does not seem logical to allow the prosecutor to exercise it arbitrarily and artificially in order to obtain and maintain the preventive detention of a person, as has occurred in the case of the Mapuche accused in the context of the conflicts.⁴⁷

The cases of Jorge Huiaquín Antinao and Juan Luis Llanca illustrate the abuses inherent in the anti-terrorism statute’s pretrial detention provisions. Twenty-nine-year-old Jorge Huaiquin Antinao from the community of Agustín Chiguaicura, commune of Nueva Imperial, was detained on April 15, 2002, on five serious charges: “violent usurpation,” robbery with force, damage to property, illegal felling of trees, and arson, allegedly committed during the occupation of a disputed neighboring estate. After four months in preventive detention, he was released conditionally on August 21, 2002, but was re-arrested on December 4, 2002, to face a new charge of terrorist conspiracy. After another eight months in detention, he was released conditionally from custody in September 2003. At that time, the Oral Criminal Court of Temuco dropped the criminal charges against Huaiquin for lack of evidence and replaced them with the charge of “public disorder.”  The prosecutor asked for three hundred days of imprisonment, but the court found the evidence shaky, and in January 2004, it acquitted Huaiquín and his co-defendant, Juan de Dios Puel Tralma.⁴⁸ 

Juan Luis Llanca, from the Mapuche community of Domingo Trangol, was arrested on January 11, 2002, for his alleged role in setting crops on fire at the private El Ulmo estate.⁴⁹ The prosecutor filed charges against Llanca under the anti-terrorism law. The seriousness of the charges prevented Llanca’s release until July 2003—he lost three hearings in which his preventive detention was reviewed.  The prosecutor finally dropped the terrorist charge after Llanca, who until then had stuck to his right to remain silent, confessed that he had participated in the burning of the crops.  “The burning happened on the spur of the moment as a response to the action of the carabineros, because they invaded our land,” Llanca testified. He received a five-year suspended sentence for this crime, but by then had already spent eighteen months in pretrial detention on the terrorism charges.

Under the International Covenant on Civil and Political Rights, people are:

[e]ntitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, or at any other stage of the judicial proceedings, and should occasion arise, for execution of the judgment.⁵⁰

The United Nations Human Rights Committee interprets this requirement to mean that “[p]re-trial detention should be an exception and as short as possible.”⁵¹ Under the anti-terrorism legislation now being applied in Chile, it has become the rule rather than the exception and has often lasted for longer than a year.

Unless used as an exceptional measure, moreover, lengthy pretrial detention can affect the presumption of innocence, a cornerstone of the new Chilean criminal justice system.  In the Giménez case, the Inter-American Commission on Human Rights argued that:

[t]he risk of inverting the presumption of innocence increases with an unreasonably prolonged pre-trial incarceration.  The guarantee of presumption of innocence becomes increasingly empty and ultimately a mockery when pre-trial imprisonment is prolonged unreasonably, since presumption notwithstanding, the severe penalty of deprivation of liberty which is legally reserved for those who have been convicted, is being visited upon someone who is, until and if convicted by the courts, innocent.⁵²

“Faceless” Witnesses

Under the anti-terrorism law, the prosecution’s use of witnesses whose identity is withheld from the accused and his or her defense lawyers seriously limits the scope of the defense, and increases the risk of unsound convictions. These witnesses are presented in court behind screens that prevent them being seen by the defendants, their lawyers, or the public. During the trial of Pascual Pichún, Aniceto Norín, and Patricia Troncoso, the hidden witnesses spoke through voice-distorting microphones. Both procedures are being used in the trial currently underway in Temuco for “illicit terrorist association.” In principle, as explained below, the use of unidentifiable witnesses is an unacceptable limitation of the right to defense. It is particularly serious if the evidence submitted by them is crucial to the prosecution case and a conviction could hinge on it.

The modifications of the anti-terrorism law introduced in 2002 envisage measures to protect key prosecution witnesses and their relatives or loved ones if the Public Ministry considers them to be in physical danger.⁵³ The law allows for these witnesses to give evidence in court “[b]y any suitable means that prevents their normal physical identification.”⁵⁴ The problem is not that the defense is barred from cross-examining these protected witnesses. It is allowed to do so—indeed, the law explicitly prohibits the introduction of such testimony into judicial proceedings unless the defense has had an opportunity to examine the witness.

When the defense is refused information about the witnesses’ names or personal details, however, it is unable to investigate their credibility or identify potential conflicts of interest. Relevant factors might include possible kin or other relationships to the defendants, the victims, or other prosecution witnesses; employment history; criminal records; or medical details such as whether the witness is shortsighted or suffers from impaired memory. One of the most important guarantees against perjury is the ability of the defense to seek out such information to cast doubt on the veracity of testimony from prosecution witnesses.

International human rights bodies have expressed the view that the use of anonymous witnesses violates international standards of fair trial. In its Concluding Observations on Colombia, the United Nations Human Rights Committee found that Colombia’s regional judicial system, “[w]hich provides for faceless judges and anonymous witnesses, does not comply with art. 14 of the Covenant, particularly paragraph 3 (b) and (e), and the Committee's General Comment 13 (21).”⁵⁵

Art. 14(3) (e) of the ICCPR 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), 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.”⁵⁶

In its recent report on terrorism and human rights, the Inter-American Commission on Human Rights considers that the right to examine witnesses could, in principle, be restricted “in some limited instances.” However, it points out that the vulnerability of witnesses “[c]an never serve to compromise a defendant’s non-derogable due process protections and each situation must be carefully evaluated on its own merits within the context of a particular justice system.” Among the considerations that must be weighed, in the commission’s view, is the sufficiency of the grounds given for withholding information about the identity of witnesses. Other relevant considerations are whether defense counsel is able to question the anonymous witnesses, and whether the court itself knows their identity.⁵⁷

In the new Chilean criminal system, the juez de garantía (the judge who safeguards defendants’ rights during the pretrial investigation) may reject the grounds given by the prosecution for withholding the identity of witnesses. In some cases, judges have actually ordered prosecutors to make this information available to the defense. It is also true that the prosecution must provide judges with the names and addresses of protected witnesses—they are handed over in a sealed envelope. However, defense lawyers consulted by Human Rights Watch did not consider this an effective safeguard. Judges in the new accusatorial system do not investigate; that function is left exclusively to prosecution and defense. It is up to the defense alone to do any investigation that might impugn the credibility of prosecution witnesses. As noted, their anonymity shields them from such scrutiny.⁵⁸

The United Nations Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples, Rodolfo Stavenhagen, noted in his report on his visit to Chile in 2003 that the system of protected witnesses cancels out some of the advantages of the oral proceedings and “[i]ntroduces a serious imbalance in the weight given to oral testimony as opposed to documentary and material evidence.”⁵⁹ 

The use of faceless witnesses is becoming more common as trials of Mapuches under the anti-terrorism law multiply. Two faceless witnesses featured in the April 2003 “trial of the loncos,” mentioned above. About thirty-eight are to be presented in the trial of sixteen alleged members of the CAM for “illicit terrorist association,” which began on October 8, 2004.  Of the sixteen defendants, eight are on trial at the time of writing; the trial of the other eight is pending.⁶⁰

The appearance of two faceless witnesses in the “trial of the loncos” provoked a debate in the press about due process standards in antiterrorism trials.⁶¹ When the loncos’ defense attorneys complained to the judges that they could not defend their clients effectively if the names of key witnesses were withheld, the court accepted that due process was a constitutionally protected right and ordered that the names be disclosed to the lawyers.  However, the lawyers were not allowed to reveal the names to their clients. This is a potentially serious limitation, since the defendants are likely to know much more about these witnesses, most of whom live in or close to their communities, than their defense counsel. 

In another case, a judge ruled that the prosecutor should provide the defense with the names of protected witnesses as well as the amount of money spent on them. Ten Mapuches and a sympathizer had been accused of “terrorist arson” in connection with a December 2001 fire at the Poluco Pidenco property of the forestry company Mininco. Apart from police and forestry workers, the prosecution witnesses included ten Mapuches from the communities in question who were under the protection of the Unit for the Care of Victims and Witnesses.⁶²

In practice, protected witnesses are usually members of the same Mapuche communities as the accused. Prosecutors offer them protection in exchange for inside information, considering anonymity essential to give them confidence to defy possible threats and intimidation by Mapuche activists or their sympathizers.⁶³ The police provide these witnesses with guards or erect fences outside their homes; reinforce the doors and windows of their homes; install emergency alarms; supply them with cell-phones; and if necessary move them out of the communities to rented housing. After the verdict in the Poluco Pidenco case was announced on August 17, 2004, a Temuco electronic newspaper published a confidential report from the office of the regional prosecutor to the juez de garantía, Nancy Germany, detailing expenses totaling more than twenty million pesos (more than $30,000) used to protect the ten key witnesses in the case.⁶⁴

Inside the communities the identity of these witnesses is often obvious to the comuneros.⁶⁵ Those who approach or are approached by the police often belong to families who have held long grudges against the accused. The protection of the authorities as well as the resources they receive gives them power inside the communities. These circumstances, allege defense lawyers, provide a fertile ground for malicious accusations based on resentment, revenge, or greed.

In the Poluco Pidenco case, for example, once the defense had the names of protected witnesses it determined that several had criminal records for gun possession and threats and was able to challenge their credibility.⁶⁶  Although the challenge ultimately failed in the court, this is the kind of issue which defense teams should be able to raise if there are to be fair trials in such cases.⁶⁷

Supreme Court Interventions

On two occasions when judges have issued decisions favoring Mapuche defendants in terrorism cases, the Supreme Court has issued highly controversial decisions reversing them. 

In April 2002, in the “trial of the loncos,” the trial court acquitted Pascual Pichún, Aniceto Norín, and Patricia Troncoso on charges of terrorist arson and threats. The trial court concluded unanimously that the evidence presented by prosecutors was unreliable. In July 2003, the Supreme Court ordered a retrial, upholding the view of the prosecutor and the victims that the verdict was null because the court had not stated clearly its grounds for rejecting prosecution evidence. The justices argued that the trial court had failed to give proper weight to all the evidence supplied by the prosecution.

One of the five judges, Milton Juica, dissented from this judgment. In his opinion, the law did not require the court to specify in the judgment the reasons for rejecting prosecution evidence, while the court was obliged to explain exactly its grounds for accepting evidence for a conviction. The point highlighted by Juica follows from the presumption of innocence, the fundamental principle on which Chile’s new criminal procedure code is based.  No one has to prove their innocence; the burden is on the court to prove guilt and for this it must specify its grounds in detail.

After hearings that took a few hours, the Supreme Court overruled the findings of a trial court that had ruled unanimously after meticulously sifting evidence for twelve days in open court. A subsequent Supreme Court judgment in a different annulment appeal applied the reasoning used by Juica in dissent in the case of the loncos rather than that of the majority decision.⁶⁸  Moreover, in a discussion at a book launch at Temuco’s Catholic University on August 25, 2003, Enrique Cury, the justice who had read out the verdict annulling the acquittal of the loncos, stated that he had altered his opinion and believed that the position adopted by Judge Juica had been correct. ⁶⁹

Commenting on the retrial that followed the annulment verdict, the United Nations special rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Rodolfo Stavenhagen, stated that he could not:

...[h]elp but express concern at such an extraordinary situation, which has arisen in the context of a social conflict and in which the right to due process could be violated and the impartiality of a respected body such as the Supreme Court of Justice could be called into question.⁷⁰

Another questionable intervention by the Supreme Court occurred in the middle of the Poluco Pidenco investigation. Juez de garantía Nancy Germany had rejected the prosecution’s treatment of the arson attack as a terrorist crime and denied prosecution requests for witness protection and anonymity.⁷¹ The Temuco Appeals Court upheld her decision. Acting at the petition of the defense, Judge Germany refused to incorporate into the indictment four pages containing arguments and evidence backing the terrorist accusation, arguing that they contained elements not presented at the formalization hearing.⁷² The prosecution lodged a disciplinary complaint (recurso de queja) against the judge, which the Temuco Appeals Court declared inadmissible. The prosecutor then sent the complaint to the Supreme Court.

In a decision reached in January 2004, the Supreme Court also ruled the disciplinary complaint inadmissible. Yet, in a controversial ruling, in March 2004 the Supreme Court’s criminal bench stated that Judge Germany had nevertheless overstepped her powers by rejecting the prosecutor’s case for the terrorism prosecution. In one fell swoop it ordered the terrorist charges reinstated and removed Judge Germany from the case.⁷³ The court invoked a statute governing the functions of the courts to the effect that “if it considers it convenient for the good administration of justice, the Supreme Court may correct on its own account the faults and abuses that any judges or judicial officials commit in the course of their duties.”⁷⁴ The decision appalled those engaged in the Mapuche defense. “It sent a very stern message to the judges,” a senior official of the Public Defenders’ office commented to Human Rights Watch.⁷⁵ 

In ordering that the terrorism charge be reinstated the Supreme Court argued that a juez de garantía has no powers to rule on the validity of charges brought by the prosecutor, which must be a matter for the trial court to decide.⁷⁶ The court’s reasoning raises concern that prosecutors who abuse their discretion and file unwarranted charges of terrorism will not be subject to any judicial control until the start of the trial. As already noted above, the upshot of the Supreme Court’s intervention was that the terrorist charges were reinstated, and on August 17, 2004, the five defendants in the Poluco Pidenco case were found guilty as charged. The court sentenced them to ten years and a day in prison and ordered them to pay compensation to the victims of 425 million pesos (approximately U.S $679,000).

There seems little doubt that the Supreme Court came under political pressure to intervene in favor of the prosecution in the Poluco Pidenco case. In the months leading up to the Supreme Court ruling on the prosecution complaint against Germany influential voices were heard complaining about her conduct. In April 2003, Alberto Espina, senator for the Araucanía and an outspoken advocate of the anti-terrorism prosecutions, lambasted Germany’s decision to deny the witnesses protection and anonymity.  Senator Espina complained that the trials would be fruitless as the witnesses would “not dare to give testimony without protection.”⁷⁷ On October 21, 2003, Attorney General Guillermo Piedrabuena reportedly met the then-president of the Supreme Court, Mario Garrido Montt, to protest about Judge Germany.⁷⁸ It is commented in judicial circles in Temuco that a month earlier, during a routine administrative visit to Temuco, a member of the Supreme Court’s criminal bench, Nibaldo Segura, made a special trip to the small town of Collipulli, where he met with Germany and reportedly berated her for her handling of the case.⁷⁹ 

Illicit Terrorist Association: Double Jeopardy?

At this writing, sixteen prominent leaders and sympathizers of the CAM are on trial in Temuco on a charge of “illicit terrorist association.” Among the sixteen are at least five who have already been convicted on a different charge for the same underlying acts. Another defendant has already been acquitted for a crime that was not judged to be a terrorist offense and which now forms part of the accusation against him.  As such, the case raises another issue of due process: the right not to be tried more than once for a single crime, also known as non bis en idem, or double jeopardy.

The sixteen were arrested in a coordinated police sweep in December 2002 following an eight month investigation by the regional prosecutor’s office of Temuco that included undercover surveillance, phone tapping, searches, and inspection of computer hard drives. They are accused of “illicit terrorist association”—that is, of participating in a criminal association devoted to planning and carrying out acts of terrorism in different parts of the Araucanía over a period of several years.

In a formal indictment on December 6, 2002, the prosecutor alleged that the group met regularly in the Temuco home of two of the accused, José Llanquileo and Angélica Ñancupil, whom he described as “[l]eaders, advocates, and instigators of all the illegal activities the association carried out.” He then listed a series of incidents for which the group was responsible in the districts of Temuco, Ercilla, Collipulli, Traiguén, and Nueva Imperial.  The prosecutor summarized these criminal actions as follows:

In the urban environment—public disorders, including attacks on uniformed personnel; damage to public and private property, even affecting the physical and mental integrity of private persons. In the rural environment—damage, theft, and robbery; starting forest fires on properties belonging to companies and private persons which have meant losses of more than 600 hectares of pine and eucalyptus just in the last year; the burning of plantations and fields of wheat and other cereals; of manor houses on private properties; of trucks for the transportation of lumber; of heavy machinery; of bridges and others; using firearms and other offensive weapons; attacks even on the life and physical integrity of the owners, their workers, their families, and also of those community members who do not agree with their ideas.⁸⁰

The trial, which began on October 8, 2004 in the Temuco Oral Criminal Court, raises another due process issue. The admission into the illicit association proceedings of evidence involving incidents on which other courts have previously passed judgment, including the case of the loncos and Poluco Pidenco, might violate the principle of double jeopardy if used to convict those already tried for these crimes, in the absence of other evidence linking them to the alleged illicit association.

Moreover, the crimes listed in the indictment other than the two already mentioned have been previously tried under the criminal code as ordinary crimes, not acts of terrorism. The trial of crimes for which other courts have previously passed judgment could be prejudicial to those already tried for them, again violating the double jeopardy rule.

A case in point is that of Jorge Huaiquín, from the community of Agustín Chiguaicura, commune of Nueva Imperial, who was acquitted in January 2004 on charges of “public disorders” allegedly committed during the occupation of a neighboring private estate (see above, section on pretrial detention). Despite the fact that the court considered this an ordinary crime and found Huaiquín not guilty, the incident and also the crimes of which he was accused (usurpation with violence; robbery with force; damage; illegal felling of trees, and arson) form part of the current accusation against him for illicit terrorist association for which the prosecutor has asked that Huaiquín be given a fifteen-year prison sentence.

“The principle of non bis en idem—the right of a person once tried or punished not to be subject to successive prosecutions for the same offense—is one of the basic due process guarantees protected in art.14 of the International Covenant on Civil and Political Rights (ICCPR).⁸¹ Art. 14(7) states:

No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

Art. 8 (4) of the American Convention on Human Rights states: “[a]n accused person acquitted by a non-appealable judgment shall not be subjected to a new trial for the same cause.” Chile ratified the ICCPR in 1976 and the American Convention in 1990.  Courts must observe this fundamental principle of due process, or else the Chilean State is in violation of its international human rights obligations. 

Pursuit of Crime or Political Persecution?

The public prosecutors responsible for the illicit terrorist association case insist that their intent is to find and prosecute those responsible for crimes of violence committed in the context of land protests, not to persecute political organizations pursuing legitimate objectives within the law. “We are not persecuting the CAM per se,” a representative of the Temuco Regional Prosecutor’s Office assured Human Rights Watch. “We are prosecuting individuals within the organization who plotted to commit crimes attributing to themselves the name of the CAM.”⁸²

According to the indictment:

[t]he investigation carried out so far by the Public Ministry has been able to establish that the group has operated in the region under the umbrella of the Arauco Malleco Coordinating Group, an organization that has a functioning hierarchical structure….

As this suggests, much of the investigation sets out to prove that the CAM is an organization purposefully set up to commit crimes.  Government statements also clearly suggest that the CAM as such is the organization in its sights. In a conversation with the newspaper El Mercurio following the convictions in the Poluco Pidenco case, Jorge Correa Sutil, the undersecretary of the interior, affirmed that the dismantling of the CAM was the result of a successful and systematic police intelligence operation called “Operation Patience.” ⁸³ 

The terms in which the CAM is referred to in the indictment also lead to the conclusion that the target is not merely some of the individuals who comprise the CAM’s leadership, but the group per se. Apart from a diagram of the organization that was obtained by police from the computer of one of the accused, the evidence against the CAM includes statements like this:

The high profile of this association has been possible as a result of the commission of the illegal acts described and the use of modern and expensive media of communication. Among them are the official website of the CAM and a print edition of the same. In the first there are explanations about each of the communities intervened by [sic] the association, the estate affected by the illegal acts, its owner and size, and, most important, (the association’s) demands, with details of the profile of the victims and the state of the judicial proceedings the crimes have given rise to.⁸⁴

The language used in this extract from the indictment is loaded. Many Mapuche organizations have websites that report on land conflicts in detail, almost invariably in support of Mapuche territorial demands. The communities “intervened” by the association are simply the communities from which CAM members come. The use of the word “intervened” implies, wrongly, that the accused are outsiders to the communities, whereas many are traditional community leaders or spokespeople. It also implies criminal intent, which the prosecutor also appears to detect in other CAM activities, like the debate promoted on its website. Such a debate is clearly legal and should be protected in a democratic society.

The prosecutor and the government have asked for a fifteen-year sentence for those accused of being leaders of the group, and five years for lower-ranking members. Again, the seriousness of the sentence sought is related not to the gravity of the individual acts they are accused of, but to their position within the organization.

On March 30, 2004, the juez de garantía of Temuco, Isabel Uribe, declared herself incompetent to continue hearing the case, accepting an appeal lodged by the defense, which argued that the case be transferred to a court in Cañete in the Bío Bío Region. This court had begun investigating the CAM under the same charge of illicit association in 1999, before the new criminal procedures code came into force. The defense argued that the crime of illicit association must date from the year the CAM was formed (1998), and the trial must be heard by the local court in Cañete that started the investigation. The prosecutors claimed, on the other hand, that the current trial did not involve the CAM as such, but a conspiracy by a group of individuals within it, and was therefore completely distinct from the earlier investigation. In April, the Temuco Appeals Court accepted this position unanimously and ordered Judge Uribe to resume hearing the case.  Nevertheless, as noted, despite the argument of the prosecution, much of the evidence in the trial relates directly to the CAM as an organization, and this is how government officials have presented it to the public.⁸⁵

The government’s belief that the combination of vigorous prosecution of CAM leaders and legal reforms has lowered tensions in the south may be premature.⁸⁶  Despite the introduction of the new criminal justice system and its unquestionable gains for the rights of defendants, the terrorist charges make many Mapuche distrust and fear the justice system now more than ever.⁸⁷  At least eight Mapuche are currently fugitives because they are certain that they will not receive a fair trial. Mapuche communities are still raided by police who insult and mistreat the inhabitants (see the cases described in the next chapter).  Furthermore, the systematic use of protected witnesses has further polarized the communities rather than healed divisions within them.  By effectively outlawing political groups, the government has encouraged rather than dissuaded clandestine political activity.

If this suspicion of the justice system is to be overcome, the application of the law must be both impartial and seen to be so. Individuals responsible for physical attacks on Mapuche should be as zealously prosecuted as Mapuche accused of crimes of violence. Unfortunately, courts have been lenient toward perpetrators of attacks on Mapuche. A case in point was the acquittal of Alejandro Herdener, who was accused of shooting a Mapuche, Luis Cheuquelén, in September 2000. Cheuquelén was hit by three bullets and seriously wounded but survived the attack. Herdener argued that he fired in self-defense after a group of Mapuche who were trying to attack him ignored a warning shot fired into the air. Forensic tests, however, revealed that Herdener’s gun had only been fired three times, indicating that he had not fired a warning shot at all. In a hearing before the Temuco Appeals Court, Herdener’s lawyer spoke of the Mapuche’s known dangerousness as evidence to support his client’s claim that he acted in self-defense. The court cleared Herdener of all the charges.⁸⁸