464. When ruling on the violations verified in this case in relation to the measures of pre-trial
detention to which the victims were subject, the Court took into account that the grounds of
danger to “the security of society” stipulated in article 363 of the former Code of Criminal
Procedure and in article 140.c of the Criminal Procedural Code of 2000, which are open-ended,
were applied to the eight victims without an analysis of the need that justified the measure
based on a procedural risk in the specific case (supra paras. 363 and 364). Consequently, the
Court does not find it pertinent to order Chile to adapt its domestic law, because the violations
of the right to personal liberty verified in this Judgment resulted from the judicial interpretation
and application of the said norms. Nevertheless, the Court recalls that the judicial authorities
should apply the criteria and standards established in the Court’s case law (supra paras. 307 to
312) in exercise of control of conventionality, in order to ensure that the measure of pre-trial
detention is always adopted in keeping with these parameters.
d)
Other measures requested
465. The Commission asked the Court to order the State to “[a]dopt measures of nonrepetition to eradicate the discriminatory prejudices based on ethnic origin in the exercise of
public power and, most especially, in the administration of justice.” CEJIL asserted that, given
that “[s]ome of the violations […] in this case are explained by the unfamiliarity with the
standards of international law of the administrators of justice,” the State should “increase
substantially the training offered to the agents of the security forces – in particular, the
members of the Investigative Police of the Carabineros – the members of the Judiciary and the
Public Prosecution Service, and other State officials, on the rights of the indigenous peoples in
order to avoid the repetition of discriminatory biases in the application of the law.” In addition,
it requested “that the legal reforms be complemented by education and training activities on
the implications of the Judgment and the standards derived from it, for the different agents
involved in the protection of rights,” and that this “should include the National Human Rights
Institute as the State agency responsible for the design and implementation of this measure.” It
alleged that one way of reversing “[t]he historical situation of disadvantage of the indigenous
peoples in Chile in general, and the Mapuche People in particular,” as well as the prejudices and
stereotypes that exist in the State with regard to the members of indigenous peoples, “is the
design and implementation of an effective public policy that instills respect for the contribution
of the indigenous peoples [and the Mapuche culture] to national development. To this end, it
ask[ed] the Court to require the State to design and implement an awareness-raising campaign
on the issue, including the National Human Rights Institute in its execution.” The FIDH asked
that the State be order to implement a “communication campaign that underscores the value of
the Mapuche People and the importance of their survival.”
466. The FIDH also asked the Court to order the State “to restitute the ancestral lands to the
Mapuche people” in order “not to perpetuate the State’s actions aimed at condemning
representatives of the Mapuche people for their political demands.”440 It also asked that Chile
be ordered “to investigate and sanction those responsible for these violations”; specifically, that
it “sanction the judges and prosecutors who participated in the violation of the human rights of
the victims.” In addition, the FIDH, among its arguments on non-pecuniary damage, affirmed
that “the only way to repair the consequences of [the] violations [in this case] is to seek
measures that considers the Mapuche community as a whole,” and to this end, it requested the
“creation of a fund to be administered by the communities to which the petitioners belong,
destined for the education of Mapuche children,” because it considered that the harm to the
cultural and moral integrity of the community “can be repaired by the transfer of ancestral
knowledge to the children as a way of maintaining the cultural integrity of the people.”
440
Specifically, they “requested the establishment of a plan for the restitution of land” to the José Guillón, José
Millacheo, José María Cabul, Temulemu and Norín Communities, to which the victims and their families belong.
150
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