Recently, Chile’s National Congress approved Law 20.467, which amends some provisions of Law
18.314. Following the latest amendment to be approved, the relevant provision of Law 18.314
reads as follows:
“Article 3. Should conduct [that is] criminalized under Law No. 18.314 or under other laws
be carried out by minors under the age of 18 years old, by application of the principal of
special status, the procedure and sentence reductions set forth in Law 20.084, which
establish a system of criminal responsibility of adolescents, shall always apply.
It shall be an aggravating circumstance of the crimes set forth in Law No. 18.314 to act with
minors under 18 years old.”
Pursuant to Law 18.314 as amended, a child or adolescent can be prosecuted for crimes of
terrorism, but the juvenile criminal law rules of procedure and sentence reduction shall apply to him.
However, the definition of the crimes and punishments set forth in adult Law 18.314, which sets
particularly harsh prison sentences, remains in effect; consequently, even though the procedure for
determination of sentences and reductions of prison terms in Law 20.084 is applicable, an
adolescent could receive a long prison sentence. The new amendment to the anti-terrorist law
should apply to current criminal proceedings, given that the amended provisions are more favorable
in both substantive and procedural terms; however, it is reported that in some of the cases of the
young Mapuche people, the Courts have interpreted the amendment to Law 18.314 in such a way
that the anti-terrorist law provisions are still applied and, consequently, allow practices such as the
testimony of unidentified witnesses or require a special majority [of judges] to lift preventive
detention measures. One of the main purposes of the recent amendment to Law 18.314 was to
restrict application of the procedural and sentencing rules provided therein so that the rules of
procedure and sentencing under juvenile criminal law could be applied to juveniles instead of the
rules provided by the anti-terrorist law. Nonetheless, Mapuche adolescents being prosecuted under
the anti-terrorist law are still being held today under the rules of procedure and deprivation of liberty
set forth in Law 18.314, and are unable to benefit from the provisions of the amendment. As was
established in the merits report, Chile’s anti-terrorist law is at odds with several articles of the
American Convention on Human Rights, particularly Articles 8, 9 and 24, in its wording as well as its
implementation by judges. Furthermore, application of the restrictive measures, as well as other
measures, set forth in the Anti-Terrorist Law, to children and adolescents, the length of preventive
detention, the use of testimony of witnesses whose identity is kept secret, or other measures, are all
blatant violations of the rights of juveniles.
Moreover, in the police and military response to the social mobilizations of the Mapuche people,
there have been repeated charges brought before a variety of international bodies that the right of
indigenous children and teenagers to life and physical and psychological integrity has been
infringed. Several human rights protection organizations, as well as international bodies, have
denounced that judicial and police authorities are violating the rights of the Mapuche youth, who
have been victims of arbitrary detentions and, in many instances, have been subjected to
interrogations on the location of other members of the Mapuche people; these interrogations are
often violent and take place during the school day or when the children or teenagers are on their
way to school from home. The alleged crimes include cases of infringement of the children’s and
teenagers’ right to life or personal integrity, in that they were wounded by bullets or harmed by tear
gas fired or thrown, respectively, by the public security forces; or were forced to endure the fear or
trauma of police search operations in the home, school or community. In 2007, the UN Committee
on the Rights of the Child expressed its concern over reports of indigenous children and teenagers
being subjected to acts of police brutality and, consequently, recommended that the Chilean State
make sure that such acts do not occur and adopt preventive and corrective measures when it is
1
suspected that such acts have taken place.
1
UN Committee on the Rights of the Chilld – 44th Period of Sessions –Consideration of Reports Submitted by
States Parties under Article 44 of the Convention. Concluding Observations: Chile. UN Document CRC/C/CHL/CO/3, April
23, 2007, par. 30.