53 convictions have been a source of deep concern in recent years and have elicited responses from various international human rights bodies, as well as special proceedings by the Human Rights Council. (…) 11. Furthermore, the situation of the Mapuche leaders and activists who are serving sentences under the anti-terrorist law was the subject of communications sent to Her Excellency’s Government by various persons acting on mandates given by the Human Rights Council and dated March 24 and July 19, 2005, April 21 and May 11, 2006. These communications expressed concern over the allegations received claiming that the convicted persons’ rights to due process had been violated by the very expansive definition of the crime of terrorism under Law No. 201 18314. 185. In the Report of the United Nations Working Group on the Universal Periodic Review, Chile (June 4, 2009), the Working Group states that one observation made during the interactive dialogue among the participating states was that “Chile’s antiterrorist law cannot be applied on the basis of ethnic, religious or political considerations, but only in accordance with the gravity of the crime committed. " One of the recommendations on which Chile will present observations once the Council’s final report is approved was the following: “4. Review the anti-terrorist law and its application so that it cannot be abused for persecution of persons from indigenous communities, including the Mapuche, for their peaceful political or religious 202 activity. (Czech Republic)." 186. This was the context at the time the victims in this case were prosecuted and convicted. The Commission observes that selective application of criminal law can manifest itself in a variety of ways. One is selective application of laws that concern conduct that is regarded as unlawful or punishable by the State, such as arson, for example. Under the standards herein described, if a person’s race or ethnic origin is a factor taken into account to make what would ordinarily be a common crime a terrorist offense, then this would be a case of selective application of criminal law. 187. In other words, although states have the right and the duty to prosecute acts of violence that occur under their jurisdiction, including those that arise in the context of a social protest that turns violent, the selective application of special criminal standards that are more restrictive than ordinary criminal standards -as is the case with the antiterrorism laws in Chile- to members of an ethnic group constitutes a difference in treatment compared to others with a direct impact on the enjoyment of their substandard and procedural rights. The Commission finds that this difference in treatment, by including an ethnic membership criterion, is based on a suspect category, is presumably incompatible with the American Convention, and, therefore, demands particularly strict scrutiny by the Commission. 188. The Commission will now examine whether, in the instant case: i) belonging to and/or associating with the Mapuche indigenous people was taken into consideration when deciding to prosecute under the Anti-Terrorism Act and convict the victims of terrorist crimes; if so, the Commission will evaluate whether ii) the Chilean State provided reasonable justification for the difference in treatment. 4. Examination of whether the prosecution and conviction of the victims under the Anti-Terrorism Act was discriminatory 189. The Commission again observes that under Law 18,314, an offense is classified as a crime of terrorism by adding the subjective element of “terrorist intent” to the description of a series of common crimes. In the three cases examined here, the courts evaluated the victims’ conduct and 201 HUMAN RIGHTS COUNCIL - Sixth session - PROMOTION AND PROTECTION OF ALL HUMAN RIGHTS CIVIL, POLITICAL, ECONOMIC, SOCIAL AND CULTURAL RIGHTS, INCLUDING THE RIGHT TO DEVELOPMENT. Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin – ADDENDUM. Doc. UN A/HRC/6/17/Add.1, 28 November 2007. [Translation ours] 202 Human Rights Council – Universal Periodic Review – Report of the Working Group on the Universal Periodic Review: Chile. Doc. UN A/HRC/12/10, June 4, 2009, paragraphs 47, 97.