(d) Chile has recognized the legitimacy of the indigenous peoples’ claims, particularly those of the Mapuche; these claims have always been taken up by the democratic governments and channeled through the institutional machinery. Accordingly, the protection of the right to land has been enshrined in the Indigenous Peoples Act since 1993, enabling the transfer of land as detailed in paragraph 20 above. 23. Nevertheless, the President of the Republic has taken the policy decision not to apply this legislation to cases in which indigenous individuals are involved on account of their ancient demands and grievances, if it is possible to try them under ordinary law in future. It should be noted that in the specific case of the crime of arson, the penalty provided for under the Criminal Code is as high as that under the Counter-terrorism Act.246 221. The foregoing reveals that the Court has no evidence that would allow it to determine that the Counter-terrorism Act has been applied in a discriminatory manner against the Mapuche people or its members. b.ii) Alleged use of stereotypes or social prejudices in the domestic criminal judgments 222. The Commission and the representatives indicated (supra paras. 189 to 191) that in various parts of the judgments convicting the presumed victims stereotypes and ethnic prejudices were evident, and asserted that this had constituted a violation of the principle of equality and of the right to an impartial judge or court. In its Merits Report, the Commission concluded in this regard that the State had violated the “right to equality before the law and non-discrimination established in Article 24 of the American Convention, in relation to Article 1(1) of this instrument” and “the defendants’ right to an impartial judge established in Article 8(1) of the Convention in relation to Article 1(1) thereof” (supra para. 189). 223. Criminal law may be applied in a discriminatory manner if the judge or court convicts an individual on the basis of reasoning founded on negative stereotypes that associate an ethnic group with terrorism in order to determine any element of criminal responsibility. It is incumbent on the criminal judge to verify that all the elements of the offense have been proved by the accuser, because, as this Court has stated, the irrefutable proof of guilt is an essential requirement for criminal punishment; thus, the burden of proof evidently falls on the accuser and not on the accused.247 224. Stereotypes are pre-conceptions of the attributes, conducts, roles or characteristics of individuals who belong to a specific group.248 The Court has indicated that discriminatory conditions “based on stereotypes […] that are socially dominant and socially persistent, […] are increased when the stereotypes are reflected, implicitly or explicitly, in policies and practices, particularly in the reasoning and the language of [the authorities].”249 225. Several of the expert witnesses made important contributions in this regard.250 Expert witness Stavenhagen, proposed by the Commission and the FIDH, indicated that “[t]he discriminatory application of a law may arise from the grounds for its application, or if the reasons cited in order to apply it are not objective or contain some discriminatory element.” 246 Cf. UN Doc. CCPR/C/CHL/CO/5/Add.1, 22 January 2009, Human Rights Committee, Consideration of reports presented by States Parties under Article 40 of the Covenant, Addendum, Information provided by the Government of Chile on the implementation of the concluding observations of the Human Rights Committee, 21 October 2008, paras. 22 and 23. 247 Cf. Case of Cabrera García and Montiel Flores v. Mexico, para. 182, and Case of J. v. Peru, para. 233. 248 Cf. Case of González et al. (“Cotton Field”) v. Mexico. Preliminary objection, merits, reparations and costs. Judgment of November 16, 2009. Series C No. 205, para. 401, and Case of Atala Riffo and daughters v. Chile, para. 111. 249 Cf. Case of González et al. (“Cotton Field”) v. Mexico, para. 401. 250 Cf. Written statement made by expert witness Rodolfo Stavenhagen on May 26, 2013, and affidavit prepared on May 17, 2013, by expert witness Carlos del Valle Rojas (file of statements of presumed victims, witnesses and expert witnesses, folios 288 a 290, 296 and 696). 78