CONCURRING OPINION IN THE CASE OF THE LONKOS, LEADERS AND ACTIVISTS OF THE
MAPUCHE INDIGENOUS PEOPLE
PAULO SERGIO PINHEIRO
With due respect, I hereby make known that I concur with the tenor and direction of the merits
report approved by the IACHR, but deem it necessary to expressly raise an issue which, under
current circumstances in Chile, is directly associated with applying anti-terrorist legislation to
members of the Mapuche indigenous people. Specifically, I am referring to the failure of the
Chilean State to protect the rights of the child in implementing strategies to respond to social
mobilization and protests of the indigenous people of the Araucania Region.
Generally speaking, application of an anti-terrorist law, which dates back to the time of the
dictatorship and places restrictions on the substantive and procedural rights of individuals, is
unacceptable in a contemporary democracy. It cannot be tolerated that such a law be used as an
instrument to silence the Mapuche indigenous people’s social protests, mobilizations and
demonstrations, which constitute forms of expression protected under Article 13 of the American
Convention and are, furthermore, aimed at recovering their ancestral territory. To apply this law
under circumstances that violate the principles of the presumption of innocence and nondiscrimination and that disrespect the principle of legality, as was proven to occur in the cases of
the Lonkos, leaders and activists of the Mapuche people under review in the merits report, is at
odds with the American Convention on Human Rights. And what is even more inexcusable, for
legal reasons that I shall briefly explain hereunder, is to make the law extend to indigenous children
and young people.
A. Publicly Known Information on the Current Situation in Chile
Several international human rights protection organizations have spoken out against indigenous
children and adolescents currently being prosecuted in Chilean criminal courts, under Law 18.314
or other special legal provisions, for conduct allegedly committed in the context of public
demonstrations conducted by the Mapuche people over the past years. We have received
information on the cases of José Antonio Ñirripil, Cristian Alexis Cayupan, Luis Humberto Marileo,
Patricio Queipul, Leonardo Quijón, Rodrigo Huechipan and Jacinto Marín, in addition to others.
These Mapuche children and teenagers are being subjected to special rules of prosecution,
investigation, punishment and judgment, under an anti-terrorist law and, in some instances, are
being deprived of their liberty in preventive detention or other similar situations; while others are in
hiding. These children and young people are being prosecuted for crimes such as unlawful
association related to terrorism, attempted homicide related to terrorism, terrorism-related robbery
with intimidation or terrorism-related arson.
In addition to enforcement of the anti-terrorist law in these specific cases, the Chilean State has
responded to the Mapuche people’s social movements, protests and mobilizations by instituting
criminal proceedings in court, including criminally prosecuting Mapuche teenagers and children
under regular criminal laws. In fact, many other Mapuche young people are also being criminally
prosecuted under regular laws applicable to adolescents in conflict with the law, for offenses
committed in the context of the Mapuche mobilizations and protests. These children and teenagers
are being prosecuted for crimes such as illegal possession of firearms, bodily harm, destruction of
property, or throwing firebombs.
Currently, some of the Mapuche young people being tried under Law 18.314 for crimes that they
allegedly committed when they were underage are being held in preventive detention, and the
judges have refused to lift the detention order, or grant alternative precautionary measures such as
home arrest with work release.