imposed arbitrarily.” It also indicated that article 9 of the Chilean Constitution
establishes “grounds for general and absolute prior censure for all those who are
convicted of a terrorist offense, because it prohibits a priori emitting or disseminating
information or opinions.” The application of this norm to Mr. Ancalaf Llaupe, who
“performed tasks relating to the diffusion and distribution of information in his
community and as its spokesperson,” resulted in “a violation of the social dimension of
freedom of expression.” It also asserted that the imposing punishments on Mr. Ancalaf
Llaupe under the Counter-terrorism Act resulted in an “indirect violation of [the right to]
the freedom of expression of the Mapuche people, because it had an intimidating and
inhibiting effect on its members, preventing them from the full exercise” of this right. In
addition, it affirmed that the arbitrary conviction of Mr. Ancalaf Llaupe also meant that
“ancillary penalties were imposed on him that still restrict the full exercise of his political
rights” and, therefore, as regards the communities that he represents, their “political
relationship with the State authorities has been impaired and, consequently, their ability
to take part in public decisions that concern them.”
b)
The FIDH endorsed the arguments presented by CEJIL regarding the alleged
violation of Articles 13 and 23 of the Convention in relation to the application of ancillary
penalties,360 and added that “the expression of claims for the recovery of ancestral lands
is a right protected by Article 13(1) […] and the discriminatory use of emergency
criminal laws with the effect of limiting this expression violates [the provisions of] Article
13(3) [of the Convention]” because, by obstructing “the free discussion of ideas and
opinions, it limits freedom of expression and the effective development of the democratic
process.” According to the FIDH, “[t]he sentences, and the policy of applying the antiterrorism legislation” restricted the right to freedom of expression by “obstructing the
expression of claims for the expansion of the indigenous lands” and by “stigmatizing […]
as terrorists, Mapuche activists in favor of respect for indigenous rights and access to
their territorial rights,” as well as because “they harmed the Mapuche protest in order to
silence it.”
368. As regards the rights to personal integrity and to the protection of the family, the
common interveners argued as follows:
a)
CEJIL stated that Chile had incurred in a violation of Articles 5 and 17 of the
Convention to the detriment of Víctor Ancalaf Llaupe. It indicated that “by treating him
as a terrorist, the State placed him under a special legal regime that affected and still
today radically affects his life, that of his family and his community, as well as the
exercise of his role as a traditional authority of the Mapuche people.” It also indicated
that Mr. Ancalaf “remained during all the time he was deprived of liberty, which lasted
more than four years,” in a prison located “more than 300 kilometers” from his
community and this “had been denounced by various human rights organizations owing
to the inhuman detention conditions,” which “had both physical and mental effects on
[Mr.] Ancalaf.” These effects were increased “by the distance that separated the
detention center from his community,” because “it was almost impossible for him to
receive visits and the emotional and material support of his friends and family during his
years of imprisonment; [and …] also, his children and his wife were deprived of contact
with their father and husband,” because they had very limited resources and had to
overcome serious obstacles in order to visit him. This situation was aggravated by the
State authorities’ refusal of the requests that he and his wife made for his transfer to a
prison nearer to his community.
360
The FIDH argued the violation to the detriment of Segundo Aniceto Norín Catrimán, Pascual Huentequeo Pichún
Paillalao, Florencio Jaime Marileo Saravia, José Benicio Huenchunao Mariñán, Juan Patricio Marileo Saravia, Juan Ciriaco
Millacheo Licán and Patricia Roxana Troncoso Robles.
125
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