concentrations of indigenous people and higher poverty rates and which were adversely affected
between 1973 and 1990 by the reversal of the measures taken to implement land reform. 82
83.
As of 2001, the number of leaders and members of Mapuche communities investigated
and tried for committing ordinary offenses in relation to violent acts associated with the abovementioned social protest increased significantly. In a few cases they have been investigated
and/or convicted of offenses of a terrorist nature in application of Law 18,314 (Counterterrorism Act) (infra paras. 98 and 99).83 In his final report on his visit to Chile in July 2013, the
United Nations Special Rapporteur on the promotion and protection of human rights and
fundamental freedoms while countering terrorism emphasized that “political opinion” in Chile
agreed that the use of the anti-terrorism legislation against the Mapuche in this context of
social protest is “unsatisfactory and inconsistent.”84 Also, between 2000 and 2013, the Public
Prosecution Service held a total of 19 proceedings under the Counter-terrorism Act, 12 of which
were related to the land claims of the Mapuche indigenous people (infra para. 217).
84.
In 2003, the Constitutional, Legislative and Justice Committee, mandated by the Chilean
Senate, drew up a report on “public order and security, above all in Regions VIII and IX, in
82
Cf. UN Doc. E/CN.4/2004/80/Add.3, 17 November 2003, Report of the Special Rapporteur on the situation of human
rights and fundamental freedoms of indigenous people, Rodolfo Stavenhagen, submitted in accordance with Commission
resolution 2003/56, Addendum, Mission to Chile, para. 28 (file of annexes to the Merits Report 176/10, annex 5, folio 257).
The Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, James Anaya,
also referred to the issue and said, among other matters, that he “disapproves of resorting to acts of violence as a means of
protest, even in situations related to legitimate claims of the indigenous peoples and communities,” but that “the
perpetration of eventual acts of violence does not in any way justify the violation of human rights of the indigenous
population by the State’s police agents.” Cf. UN Doc. A/HRC/12/34/ Add.6, 5 October 2009, Report of the Special
Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, James Anaya, Addendum,
The situation of indigenous peoples in Chile: follow-up to the recommendations made by the previous Special Rapporteur,
para. 40 (file of annexes to the Merits Report 176/10, annex 12, folio 439).
83
Cf. UN Doc. CCPR/C/CHL/C0/5, 17 April 2007, Human Rights Committee, Consideration of reports presented by
States Parties under Article 40 of the Covenant, Concluding observations of the Human Rights Committee, Chile, para. 7
(file of annexes to the Merits Report 176/10, annex 8, folio 312); UN Doc. A/HRC/6/17/Add.1, 28 November 2007, Human
Rights Council, Report of the Special Rapporteur for the promotion and protection of human rights and fundamental
freedoms while countering terrorism, Martin Scheinin, Communications with Governments, para. 9 (file of annexes to the
Merits Report 176/10, annex 10, folio 370); UN Doc. A/HRC/12/34/ Add.6, 5 October 2009, Report of the Special
Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, James Anaya, Addendum,
The situation of indigenous peoples in Chile: follow-up to the recommendations made by the previous Special Rapporteur,
para. 46 (file of annexes to the Merits Report 176/10, annex 12, folio 441); UN Doc. CERD/C/CHL/C0/15-18, 7 September
2009, Committee on the Elimination of Racial Discrimination, Consideration of reports submitted by States parties under
article 9 of the Convention, Concluding observations of the Committee on the Elimination of Racial Discrimination, Chile,
para. 15 (file of annexes to the Merits Report 176/10, annex 14, folio 502); Aylwin Oyarzún, José Antonio, Law report, “La
aplicación de Ley No. 18.314 que ‘determina conductas terroristas y fija su penalidad’ a las causas que involucran a
integrantes del pueblo mapuche por hechos relacionados con sus demandas por tierras y sus implicaciones desde la
perspectiva de los derechos humanos” [The application of Law No. 18,314 which ‘defines terrorist acts and establishes the
corresponding punishments’ in proceedings that involve members of the Mapuche people for acts related to their demands
for lands and the implications from the perspective of human rights], August 2010 (file of annexes to the CEJIL motions and
arguments brief, annex C 2, folios 2080 to 2086); Statement made by expert witness Jorge Contesse before the InterAmerican Court during the public hearing held on May 29 and 30, 2013; document provided by the State indicating that it is
a “List with a historical record of those indicted under the Counter-terrorism Act between 2000 and 2013 throughout Chile”
(file of helpful evidence presented by the State, folios 52 to 55); and Article by Víctor Toledo Llancaqueo, “Prima ratio
Movilización mapuche y política penal. Los marcos de la política indígena en Chile 1990-2007,” in the journal
Observatorio Social de América Latina, Year VIII, No. 22, September 2007, Buenos Aires (Annex No. 9 of the FIDH
brief with motions, arguments and evidence), page 263 of the journal includes a “Table” entitled “Regions VIII and IX.
Complaints filed by the Government owing to Mapuche acts of protest, 1997-2003” indicating that the source of the
information is a “Note of the Ministry of the Interior based on a report of the Senate (2003) and INE judicial
statistics.”
84
Cf. UN Doc. A/HRC/25/59/Add.2, 14 April 2014, Human Rights Council, Report of the Special Rapporteur for the
promotion and protection of human rights and fundamental freedoms while countering terrorism, Ben Emmerson,
Addendum, Mission to Chile, paras. 20 and 22 (merits file, tome V, folios 2566 a 2587).
28