5 The State 15. The State argues that Law 18,314 was the applicable law in the criminal prosecution of the Lonkos Aniceto Norín and Pascual Pichún, given the general context of political and social protests 10 in Region IX and the commission of acts of violence in that context. 16. As for the asserting that a violation of Article 9 of the Convention was committed because “terrorist threat” was not criminalized in Chilean law, the State asserts that the the petitioners have wrongly interpreted the scope of the principle of legality and the principle of non-retroactivity of criminal law, which have nothing to do with the name attached to the crime prosecuted, but the substantive aspects of the crime: “The purpose of these principles is to ensure that a person is not convicted of something that, at the time of its commission, was not part of the description of any crime, nor described in clear and precise language in the classification of the offense. In the instant case, the deeds attributed to the persons convicted were crimes under Chilean criminal law. The precise name attached to the crime of which they were convicted and on which the sentence is based has nothing to do with legality.” B. Application of the anti-terrorism legislation in light of the principle of individual criminal responsibility and the prohibition of racial discrimination. The petitioners 17. All the petitioners contend that their conviction on September 27, 2003, was a violation of 11 Article 1(1) of the American Convention, which prohibits racial discrimination. They also argue that Article 24 of the Convention has been violated because the prosecutor sought to have the anti-terrorism law enforced against them, which they contend has never been similarly applied against any other social group. In this sense, they regard themselves as victims of discriminatory treatment under criminal law, based on their ethnic or racial origin. Petitioners Juan Patricio Marileo Saravia, Florencio Jaime Marileo Saravia, Patricia Roxana Troncoso Robles, José Benicio Huenchunao Mariñán and Juan Ciríaco Millacheo Licán contend that the Chilean State’s conduct amounts to criminal persecution of persons belonging to the Mapuche indigenous people under the Anti-Terrorism Act, repressing the Mapuche people’s activism and social protest to reclaim their territorial rights; this pattern of conduct is, in their view, discrimination based on ethnic origin. Accordingly, “our contention is that the enforcement of Law 18,314 has to do with our racial identity and not with the act of which we have been accused and convicted. The consequence is an act of discrimination against us on the basis of race. The different treatment we are receiving by being regarded as terrorists has no objective or reasonable justification.” 12 13 18. The petitioners in the Víctor Ancalaf case cite various reasons why the right to equal treatment and the prohibition of discrimination, established in articles 1 and 24 of the American 10 In the opinion of the State this was because the facts that gave rise to the investigation and subsequent prosecution are part of a broader framework of criminal activity in Region Nine, perpetrated by a group of people that uses ideological discourse to assert claims of ancestral rights and that collectively planned, organized and committed crimes. The purpose of these criminal acts is to instill a well-founded fear among the population or a portion thereof, that one will fall victim to these kinds of crimes, both because of the nature of the means employed, and because of the evidence that shows that this is part of a premeditated plan to attack a certain category or group of people, particularly owners of agricultural and forestry lands in the areas that the perpetrators have declared to be in dispute. The purpose is to pressure landowners to abandon their land and authorities to turn the land over to these groups. These are the very circumstances that Article 1 of that law hypothesizes. Response from the Chilean State to Petition P-619-03, received by the IACHR on November 30, 2004, pp. 6-8. 11 They also cite the International Convention on the Elimination of All Forms of Racial Discrimination (Articles 1(1) and 5), the International Covenant on Civil and Political Rights, and Article 19-2 of the Constitution of Chile. 12 Observations from Juan Patricio Marileo Saravia, Florencio Jaime Marileo Saravia, Patricia Roxana Troncoso Robles, José Benicio Huenchunao Mariñán and Juan Ciríaco Millacheo Licán on the merits of the matter before the IACHR, received on August 9, 2007, p. 8. 13 The petition in the case of Víctor Ancalaf Llaupe was filed with the Commission by Mr. Ancalaf himself, accompanied by 69 authorities, leaders of the Mapuche people and three lawyers. While it was made clear that the alleged victim of the human rights violations claimed was Mr. Ancalaf, the 69 leaders – who appear as co-petitioners - told the Commission that they are