At all times in dealing with Mapuche protests law enforcement forces must ensure that force is used only when justified by the exigencies of the situation and in strict proportion to the physical risk faced. Police officers who treat Mapuche with lack of respect or use racist taunts and insults not only commit an offense punishable under law, they also exacerbate existing tensions, reinforce bitter feelings, and encourage violent reactions from those affected.
Since the government began its campaign against radical Mapuche groups in late 2001, the number of allegations involving the use of excessive force by carabineros in response to land occupations and other forms of Mapuche protest has declined. However the decline appears to be due to a change in the intensity of the land conflict, rather than a clear reform of the operational procedures and conduct of the police. Recent eyewitness testimonies suggest that when they enter Mapuche communities in large numbers to make arrests, carabineros continue to physically mistreat or insult residents, including women, children, and old people.
Cases of torture of Mapuche while in police custody after their arrest have declined significantly since the introduction of the new code of criminal procedure in the Araucanía. Nevertheless, the Indigenous Rights Program at the Institute of Indigenous Studies of the University of the Frontier continues to receive occasional reports of the beating of detainees at the moment of arrest or shortly after arrest, even though the mistreatment usually falls short of torture.
Under existing Chilean legislation, all complaints of the use of excessive force or physical abuse by carabineros are investigated by military prosecutors and heard in largely secret written procedures by military courts. These courts do not provide victims of police abuses with guarantees of a fair and impartial investigation. In fact, most complaints are rejected or left unresolved, and those responsible for the abuses are ultimately not held accountable. The gross imbalance that exists between the vigorous prosecution of Mapuche who break the law and the de facto impunity enjoyed by law enforcement officers who abuse them is a telling indicator of the unequal treatment that the Mapuche receive from the justice system.
Adriana Loncomillas wooden hut in the community of José Guiñón is at the foot of the vast Poluco Pidenco tree farm. From her door, pines cover the hills to the horizon. Adrianas husband, José Osvaldo Cariqueo Saravia, a lonco, is wanted on charges of terrorist association and terrorist arson on the Poluco Pidenco estate. His two brothers, Juan and Patricio Marileo Saravia, recently began a ten-year prison term after being sentenced on August 21, 2004, for the incendiary attack. José Osvaldo Cariqueo did not appear at the trial, and a national and international warrant was issued for his arrest. 89
Eighty-six-year-old Lorenza Saravia, mother of the three brothers, told the Indigenous Rights Program in 2003 that the police had raided the community five times looking for her sons. There were about two hundred carabineros, she recalled. They arrested me, and dragged me over the stones like an animal and threw me into their van like a sack of potatoes. They slapped me twice in the face. Who gives them the right to hit an old woman?90
Women, children, and old people often bear the brunt of the distress caused by the incursions of the police. After the flight of her husband and the imprisonment of her brothers-in-law, Adriana, who is a machi (spiritual healer) in her community, is left with her fifteen-year-old son Jorge and three younger children. Jorge is being treated by a psychologist. She told Human Rights Watch: He has bad memories. Last time the carabineros came, on July 28, 2004, Jorge tried to defend me when they started insulting me. They pushed him outside, pinned him to the ground and twisted his arm. We are usually fast asleep when they come. Would a terrorist be asleep in his home?
Here we dont have a problem with [the forestry company] Mininco, continued Adriana, a soft-spoken woman in a flowery apron. This land was bought for us by CONADI from the forestry company Cautín. We have support from Orígenes (a government program that gives credit to Mapuche communities) and the International Development Bank. We even helped (Senator) Espina in his election campaign.91
Less than one hundred meters away lives Juan Ignacio Queipul, one of the witnesses against her husband and brothers-in-law who is receiving police protection. Relations with Adrianas family are not good. As she explained, When we started to talk to CONADI and Cautín, he got envious and wanted to be in on the deal, but we said no. Once he shot at my home. I heard the shots and thought at first it was hunters. We denounced it to the police and they found the shells, but they did nothing. Queipuls home, protected by a metal fence, is just visible from the road leading to Adrianas house.
According to an affidavit signed by Adriana, on July 7, 2004, the police arrived in José Guiñón at about 5:00 p.m. to investigate a complaint made by Queipul that Adriana and her family had destroyed a fence on his property. According to Adrianas statement, unable to find her two brothers-in-law Juan and Patricio Marileo Saravia, and fearing they had been arrested (indeed they had been), she walked over to where the public prosecutor was standing to ask him what was happening. In response, the prosecutor abruptly got into his car and drove away, accidentally striking Jorge, who was accompanying his mother. Apparently thinking that Jorge had tried to attack the prosecutors vehicle, three or four officers pounced on him and pinned him to the ground, pointing their weapons at him. The police also attacked José Necul Cariqueo, Adrianas nephew, when he shouted at the police that the Jorge meant no harm and to leave him alone.92
Witnessing this unprovoked violence, the affidavit continued, Adriana began to scream in desperation, leading two policemen to punch and kick her. One of the officers lost his balance, dragging her to the ground. He drew his revolver and fired two shots close to Adrianas head. Adriana was taken to hospital where her injuries were treated. Jorge and José Necúl were taken into police custody in Angol. José was held for a week and a military prosecutor charged him with resisting arrest and assault (maltrato de obra).93 Meanwhile, a Collipulli court ordered the immediate release of Adrianas brothers-in-law Juan and Patricio Marileo Saravia, declaring their arrest to have been illegal.
According to Adriana Loncomilla, her experience is not unique. Luis Licán, an elderly member of the same community of José Guiñón, was hit by birdshot fired by a carabinero during an earlier police raid, on August 15, 2003. Startled by the presence of a large contingent of police in the community, Licán was hit by gunshot while running away. As Adriana, who witnessed the attack, described the events:
When they came to search, he was returning to his house, and when he saw lots of carabineros, he got scared and started to run. And the carabineros shot him down and left him there full of pellets. After they shot him, they kicked him, stepped on him, and kept hitting him. The carabineros were saying: Go on run away now, asshole, (huevón) and laughing. Afterwards, he was like a wounded chicken with blood pouring out when they took him to Collipulli.94
Luis Licán died months after the raid. There is no clear evidence linking his death to this mistreatment during the raid, although the community is convinced that there is a link.
Police raids have been common in other communities affected by land conflicts. Flora Collonao has experienced at least seven such raids. She is married to Pascual Pichún, lonco of the community of Temulemu, near Traiguén, now serving a five-year sentence for terrorist threats against landowner Juan Agustín Figueroa. Her two sons, Rafael and Pascual, sentenced in January 2003 to five years in prison for burning a truck from the Figueroa estate, were released on parole, but the court in Traiguén ordered their parole terminated and their return to prison because the brothers were unable to pay Figueroa compensation of six million pesos (almost $10,000). Since then, carabineros have been trying to detain them.95 During the first three months of 2004, the Pichún-Collonao family home was visited seven times by the police operating in large groups with air support from helicopters; other officers kept watch for months on roads adjoining their community. As Flora Collonao described one such raid:
They raided us again on Thursday, March 11. I wasnt in time to open the door, and they kicked it open instead. They broke the door and a window. I got up and asked them, Whats happening? Were looking for your sons, they said. The police dont treat us like people but as if we were animals. The police come in saying, [g]et out of bed, you shit. And how could they do it? They are supposed to be educated people. The way they treat us, it seems that they are not . When investigaciones [plainclothes criminal investigation police]arrived, they handcuffed me and threw me like an animal onto their truck.96
Other incidents since 2002 involving mistreatment and verbal abuse by carabineros during efforts to detain Mapuches have been reported in the communities of José Millacheo Levio, near Chekenko, Ercilla, and Aylla Varela, near Caillín. There have also been reports throughout the land conflict of police using excessive force during operations to evict Mapuches occupying disputed land, in particular using shotguns when lethal force was not warranted. One such incident resulted in the only death so far resulting from police action during the conflicts in the Araucanía (the case of Alex Lemún, discussed below).
Carabineros have been aware of these problems for several years, although little has been said publicly of any measures that might have been taken to prevent them. A revealing article published in the newspaper La Tercera quotes from a letter sent on June 12, 1999, by the head of the Ninth Zone of carabineros, Gen. Mauricio Catalán, to the Cautin prefectorate. The letter, basing its observations partly on police as well as press video footage, complains of:
bad mannered, offensive, insulting and high-handed treatment, both by chiefs, officers and personnel toward those who subvert order, especially members of the Mapuche ethnic group. It can be appreciated with absolute clarity that carabineros personnel arrive at the site of an incident with a predisposed confrontational attitude and indeed in more than one incident the reaction of the Mapuches has been provoked by the excessive and aggressive behavior of the police, a situation that is unacceptable in our institution.
Together with criticisms of the poor control exercised by senior officers over their men in these operations, the letter notes that use of anti-riot shotguns is often indiscriminate and that officers are ignorant of the concept of legitimate defense, [a]s they continue to fire even after the subversives are running away.97
Recent incidents suggest that carabineros continue to behave in the manner criticized by General Catalán. In July 2004, officers investigating complaints that Mapuche were responsible for a fire at the home of the brother of a prominent landowner, Jorge Luchsinger, raided the homes in Truf Truf, near Temuco, of two Mapuche families. Only women, children, and old people were present at the time of the raids. On July 25, 2004, a contingent of some fifty police traveling in a bus and armed personnel carriers arrived at the home of Irma Lleuvul Cherquián, in Itinento, district of Padre de las Casas, when she was alone with her four children. Armed with submachine guns and accompanied by a prosecutorapparently in search of a suspectthe police turned the house upside down, breaking furniture and the childrens school supplies. They gave no explanation for their action, nor did they exhibit a search warrant. Two gold rings left to Irma Lleuvul by her grandparents and 40,000 pesos (approximately U.S.$60) in an envelope disappeared during the raid. On the same day, about thirty police raided the home of seventy-year-old Rosa Quidel Chicahual and sixty-five-year-old Alberto Catrilaf Parra, who were with three young children. The police threatened the couple with their guns, and pushed and fenced them in with their shields while the house was searched. Again, they failed to show any arrest or search warrant.98
As noted above, allegations of torture in police custody have declined significantly since the introduction of the new criminal procedure code, but reports of mistreatment of Mapuche during or soon after their arrest continue to surface.99
Several provisions of the new code protect the rights of detainees and defendants. In the first place, a judge must review all detentions within twenty-four hours in a public hearing at which the defendant, his or her defense lawyer, and the prosecutor are present. The code also prohibits the use of any method of interrogation that impinges on or inhibits the freedom of the accused to declare. It explicitly prohibits [a]ny methods that affect the memory, the capacity of comprehension, and direction of the acts of the accused, especially any form of ill-treatment, threats, physical or psychological violence, torture, deceit, or the administration of drugs or hypnosis.100
The juez de garantía can take measures to remedy ill-treatment of the defendant at any stage of the proceedings, and if these measures are insufficient to correct the problem, may order suspension of the proceedings. Confessions extracted by the police outside the courtroom do not help the prosecution or the police since the new code of criminal procedures discounts them if they are not ratified by the defendant during the trial. Defendants right to remain silent is now respected, as evidenced by the fact that many Mapuche defendants have chosen not to testify As a final protection, in the last resort, the Supreme Court may annul trials that have failed significantly to comply with the rights of the defendant guaranteed in the Constitution, laws, and international treaties to which Chile is a party.
However, these controls appear to be less effective in preventing ill-treatment at the moment of arrest or shortly afterwards, particularly if the detainee is released during the twenty-four hours that follow. According to one study, most complaints of police ill-treatment in 2002 related to incidents that took place during this limited period, such as while detainees were being transported in police vehicles to a police station.101
 Juicio por Incendio Terrorista: Caza de Mapuches rebeldes, El Mercurio, July 30, 2004.
 Indigenous Rights Program, University of the Frontier, Allanamientos policiales en la comunidad José Guiñón, sector San Ramón, Comuna de Ercilla, August 2003, (unpublished; copy on file at Human Rights Watch).
 Human Rights Watch interview with Adriana Loncomilla, Comunidad José Guiñón, Ercilla, August 11, 2004.
 En lo principal interpone denuncia por violencia innecessaria, Military Prosecutor (Letrado del Ejercito y Carabineros), July 27, 2004; copy on file at Human Rights Watch.
 Indigenous Rights Program, University of the Frontier, Allanamientos policiales en la comunidad José Guiñón, sector San Ramón, Comuna de Ercilla, August 2003 (unpublished; copy on file at Human Rights Watch).
 Reported in Los Derechos de los Pueblos Indígenas en Chile, p. 256.
 Centro de Documentación Mapuche, Gobierno chileno ordena encarcelar a personas por deudas, [online], http://mapuche.info.scorpionshops.com/mapu/afppm040429.html (retrieved August 29, 2004); Ivan Fredes, Loncos eluden cerco de la policía, El Mercurio, January 14, 2004.
 Los allanamientos del domicilio de la familia Pichun de Temulemu y el encauzamiento del denominado conflicto mapuche, Indigenous Rights Program, Institute of Indigenous Studies, Universiy of the Frontier, Temuco, March 17, 2004.
 Fredy Palomera / Temuco y Pedro Lezaeta, Documento revela mea culpa de carabineros en maltrato a mapuches, La Tercera, November 24, 2000.
 La represión continúa en Xuf Xuf, El Gong, August 9, 2004. [online], http://www.diarioelgong.cl/news/one_news.asp?IDNews=24232 (retrieved September 22, 2004); Declaración Pública Ayjarrewe de Xuf Xuf, julio de 2004 [online], www.derechosindigenas.cl (retrieved September 22, 2004).
 Informe Anual sobre Derechos Humanos en Chile, 2004 (Santiago: Law Faculty, Diego Portales University, May 2004), pp.159-160; Los Derechos de los Pueblos Indígenas en Chile, pp. 251-252.
Art. 195 of the Code of Criminal Procedure.
 Informe Anual sobre Derechos Humanos en Chile, 2003 (Santiago: Law Faculty, Diego Portales University, January 2003), pp. 116-119.