that seek to protect the persons subject to their jurisdiction against acts of terrorism, States
have the obligation to ensure that the criminal justice system and respect for procedural
guarantees abide by the principle of non-discrimination.225 States must ensure that the
objectives and effects of the measures taken in the criminal prosecution of terrorist actions are
not discriminatory, allowing individuals to be subjected to ethnic stereotypes or
characterizations.226
b)
Application to this specific case
b.i) Alleged discriminatory and selective application of the Counterterrorism Act to members of the Mapuche indigenous people
211. When the common interveners argued that there had been “selective application of the
Counter-terrorism Act,” they were referring to statistical data corresponding to the time of the
events. In addition, the Commission and the representatives have mentioned a “context” of
“selective application” of the Counter-terrorism Act “to individuals belonging to the Mapuche
indigenous people” and to the “criminalization of the social protest” of this people (supra paras.
189 to 191).
212. Starting with the latter point, the Court understands that it is necessary to make a
distinction between the attitudes towards the demonstrations in favor of the Mapuche people’s
claims disseminated by a major segment of the mass media (supra para. 93), and the ways in
which the Ministry of the Interior and Public Security, and the Public Prosecution Service
acted227 when deciding in which cases to call for the application of the Counter-terrorism Act
and the arguments on which this was based, and the final decisions adopted by the Chilean
courts in this regard. The Court must focus its attention on the decisions of the courts, while
taking into consideration the possibility that the way in which the media presented the so-called
“Mapuche conflict” or the submissions of the Public Prosecution Service may have unduly
influenced these decisions.
213. In particular, it should be stressed that, at the time of these trials, a legal presumption
was in effect in Law No. 18,314 – that this Court has already declared incompatible with the
principles of legality and presumption of innocence (supra paras. 168 to 177) – which
established that the intention of instilling fear in the general population (special terrorist intent),
would be presumed “based on the fact that the offense was committed using explosive or
incendiary devices, weapons of great destructive powers, toxic, corrosive or infectious
substances, or others that can cause major devastation, or by sending letters, packages or
similar objects with explosive or toxic effects.”
214. Regarding the second point, even though it was not, perhaps, the common interveners’
intention that the Court analyze whether the alleged violations that affected the presumed
victims in this case resulted from indirect discrimination arising from the disproportionate
impact or indirect discriminatory effects of the said criminal law, the Court will examine, with
the means available to it, the so-called “context” of “selective application” of the Counter-
225
Cf. UN Doc. A/57/18, 8 March 2001, Committee on the Elimination of Racial Discrimination, Statement on racial
discrimination and measures to combat terrorism, adopted following the terrorist acts perpetrated in the United States of
America on September 11, 2001, p. 102.
226
Cf. UN Doc. HRI/GEN/1/Rev.9 (Vol.II), International Human Rights Instruments, Compilation of General Comments
and General Recommendations adopted by Human Rights Treaty Bodies, General recommendation No. XXX of the
Committee on the Elimination of Racial Discrimination (2005), para. 10.
227
In its answering brief, the State explained that “the Ministry of the Interior and Public Security and the Public
Prosecution Service are the only public bodies legitimized to file actions against persons who, in their opinion, have
committed offenses defined in the Counter-terrorism Act.” See also: Table of criminal proceedings in Chile presented by the
State as helpful evidence (file of helpful evidence presented by the State, folio 61).
73
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