C)
Domestic legal framework
94.
During the criminal proceedings against the presumed victims in this case, norms of the
Constitution, criminal law (Criminal Code and special criminal law on terrorism) and criminal
procedural law (1906 Code of Criminal Procedure and 2000 Criminal Procedural Code, and Code
of Military Justice) were applied, and they will be described below, before examining them in
the corresponding chapters on the merits.
1.
Constitution
95.
Article 9 of the Constitution of the Republic of Chile101 contains provisions for the
criminal prosecution of “acts of terrorism” and penalties in addition to imprisonment. In
addition, article 19(7)(e) contains regulations concerning the right to personal liberty and
“preventive or pre-trial detention.”
Article 9. Terrorism, in any of its forms, is intrinsically contrary to human rights.
Those found guilty shall be disqualified for 15 years from discharging public duties or holding public
office, regardless of whether or not the appointment is by popular election; from being the rector or
director of an educational establishment or performing teaching activities therein; from operating a
social communications media outlet or being a director or manager thereof, or performing therein
functions connected with the broadcast or dissemination of opinions or information; and from being
the leader of a political organization, an organization associated with education, or a neighborhood,
professional, business, labor, student, or trade association, during that time. It is understood that
the foregoing is without prejudice to other disqualifications or those that last longer according to the
law.
The offenses referred to in the preceding paragraph shall always be considered common and not
political offenses for all legal effects, and a private pardon shall not be admissible, unless this is to
commute the death penalty for life imprisonment.
Article 19(7)(e) and (f) establishes the following:
Article 19. The Constitution ensures to everyone:
[…]
(7). The right to personal liberty and individual safety.
Consequently:
[…]
(e)
Pre-trial release shall be in order, unless the judge considers that detention or pre-trial
detention is necessary for the preliminary investigations or for the safety of the victim or of society. The
Law shall establish the means and requirements for obtaining this.
en Chile”, Chile, Santiago. LOM Ediciones, 2007, p. 145 (file of annexes to the CEJIL motions and arguments brief, annex
D5, folio 3325). Similarly, the amicus curiae brief presented by Claudia Gutiérrez Olivares, Professor of Ethics and
Political Philosophy of the Universidad of Chile, when referring, inter alia, to “the opinion” and “the discourse” of the
mass media in relation to the Mapuche people, stated that “very frequently, […] the media use a discriminatory
language that marginalizes the Mapuche people,” by presenting them as “small groups that obstruct development”
owing to their “social mobilization” based on “opposition to production and energy projects that it is sought to develop
on indigenous lands or nearby.” Thus, she indicated that “[n]ewspaper coverage of the Mapuche issue usually takes
the approach of the Mapuche conflict,” dealing with news concerning this situation “clearly in favor of one of the
parties,” which is the “businessmen” or “owners of forestry company [or of] farms.” In this regard, she referred to an
article by Fresia Andrea Amolef Gallardo entitled “La alteridad en el discurso mediático: Los Mapuches y la prensa
Chilena”, indicating that, in the article, the author summarizes the treatment given to the Mapuche in a major Chilean
newspaper that uses “concepts and expressions” based “almost exclusively” on “negative, pejorative and
discriminatory characteristics,” as well as a description of “the negative consequences” of “the actions taken by” the
Mapuche. She affirmed that this author shows that “the press creates a climate that is hostile to the social demands
of the Mapuche people, contributing to delegitimize them, as well as to producing distrust and fear among the
population” (merits file, tome IV, folios 1854 to 1864).
101
Cf. Constitution of Chile of August 8, 1980, and its amendments. The State indicated that the version of the
“Constitution of Chile in force at the time of the acts for which the presumed victims of this case were prosecuted” is
available at: http://www.leychile.cl/Navegar?idNorma=7129&idVersion=2001-08-25.
33
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