79 CONCURRING OPINION IN THE CASE OF THE LONKOS, LEADERS AND ACTIVISTS OF THE MAPUCHE INDIGENOUS PEOPLE PAULO SERGIO PINHEIRO With due respect, I hereby make known that I concur with the tenor and direction of the merits report approved by the IACHR, but deem it necessary to expressly raise an issue which, under current circumstances in Chile, is directly associated with applying anti-terrorist legislation to members of the Mapuche indigenous people. Specifically, I am referring to the failure of the Chilean State to protect the rights of the child in implementing strategies to respond to social mobilization and protests of the indigenous people of the Araucania Region. Generally speaking, application of an anti-terrorist law, which dates back to the time of the dictatorship and places restrictions on the substantive and procedural rights of individuals, is unacceptable in a contemporary democracy. It cannot be tolerated that such a law be used as an instrument to silence the Mapuche indigenous people’s social protests, mobilizations and demonstrations, which constitute forms of expression protected under Article 13 of the American Convention and are, furthermore, aimed at recovering their ancestral territory. To apply this law under circumstances that violate the principles of the presumption of innocence and non-discrimination and that disrespect the principle of legality, as was proven to occur in the cases of the Lonkos, leaders and activists of the Mapuche people under review in the merits report, is at odds with the American Convention on Human Rights. And what is even more inexcusable, for legal reasons that I shall briefly explain hereunder, is to make the law extend to indigenous children and young people. A. Publicly Known Information on the Current Situation in Chile Several international human rights protection organizations have spoken out against indigenous children and adolescents currently being prosecuted in Chilean criminal courts, under Law 18.314 or other special legal provisions, for conduct allegedly committed in the context of public demonstrations conducted by the Mapuche people over the past years. We have received information on the cases of José Antonio Ñirripil, Cristian Alexis Cayupan, Luis Humberto Marileo, Patricio Queipul, Leonardo Quijón, Rodrigo Huechipan and Jacinto Marín, in addition to others. These Mapuche children and teenagers are being subjected to special rules of prosecution, investigation, punishment and judgment, under an anti-terrorist law and, in some instances, are being deprived of their liberty in preventive detention or other similar situations; while others are in hiding. These children and young people are being prosecuted for crimes such as unlawful association related to terrorism, attempted homicide related to terrorism, terrorism-related robbery with intimidation or terrorism-related arson. In addition to enforcement of the anti-terrorist law in these specific cases, the Chilean State has responded to the Mapuche people’s social movements, protests and mobilizations by instituting criminal proceedings in court, including criminally prosecuting Mapuche teenagers and children under regular criminal laws. In fact, many other Mapuche young people are also being criminally prosecuted under regular laws applicable to adolescents in conflict with the law, for offenses committed in the context of the Mapuche mobilizations and protests. These children and teenagers are being prosecuted for crimes such as illegal possession of firearms, bodily harm, destruction of property, or throwing firebombs. Currently, some of the Mapuche young people being tried under Law 18.314 for crimes that they allegedly committed when they were underage are being held in preventive detention, and the judges have refused to lift the detention order, or grant alternative precautionary measures such as home arrest with work release. Recently, Chile’s National Congress approved Law 20.467, which amends some provisions of Law 18.314. Following the latest amendment to be approved, the relevant provision of Law 18.314 reads as follows: