57
said, must be scrutinized with the utmost care by the organs of the inter-American system inasmuch as it
is a “suspect category.” This is so, regardless of whether or not in the domestic decisions other grounds
were considered in reaching the respective conclusions.
202. In this regard, the Commission believes that it is not for it to determine if, in the absence
of the ethnic membership element, the offenses charged should, in any case, have been classified as
terrorist. It was up to the domestic judicial authorities to make an objective review of the situation based
on the evidence contained in the record on the specific facts that were brought to its attention and refrain
from introducing the ethnic element in forming its conclusions about the nature of the offenses.
203. As the European Court has stated in cases concerning discrimination by judicial or
administrative authorities, the various grounds on which a judge bases their decision combine to form
their conclusion in ruling one way or another. Those grounds should not be considered alternatively, but
concurrently, without it being possible to consider that one ground was predominant or that one of them
206
alone was sufficient to make the decision.
204. By the same token, the Commission considers that in the case of Juan Patricio Marileo
Saravia, Florencio Jaime Marileo Saravia, Patricia ROXANA Troncoso Robles, José Benicio
Huenchunao Mariñán, and Juan Ciriaco Millacheo Licán, as well as that of Víctor Ancalaf, it has also
been shown that there was a difference in treatment based on their ethnic origin and/or link to the
Mapuche people, inasmuch as the consideration of these elements had the effect of influencing the
decision.
205. Next, the Commission will analyze if the difference in treatment in the decisions
examined was justified on objective and reasonable grounds.
206. The Commission notes first that the Chilean State offered no arguments on the merits to
justify this difference in treatment, and thereby failed its burden of proof. Nevertheless, the IACHR
believes it is worthwhile examining whether an objective and reasonable justification for the difference in
treatment can be extrapolated from the reasons cited by the domestic judicial authorities. The
Commission observes that, the above-mentioned differences aside, the common denominator in the
three convictions is the reference to a series of acts of violence committed by a group within a broader
context of social protest and demands by the Mapuche indigenous people. In spite of the obvious
difference between a general context of legitimate claims made through social protest and the
occurrence of sporadic acts of violence, the judicial authorities base their decisions on a generalized
social representation of the so-called "Mapuche conflict," in the terms described in the section on context
(supra pars. 43-47).
207. In order for the differences in treatment based on contextual considerations to be
regarded as justified, the judicial authorities should have established sufficient grounds to support both
the victims’ link to a specific context of violence, and the terrorist -as opposed to merely violentclassification of that specific context. In none of the three judicial decisions is it possible to find sufficient
justification in that regard. On the contrary, according to the representation of the context and the
standard applied by the judicial authorities, any act of violence committed by a person belonging to the
Mapuche indigenous people should be considered an act of terrorism because previously other
individuals belonging to the same indigenous people had committed acts of violence which had instilled
fear in the population.
206
See, mutatis mutandis, European Court of Human Rights. Case of E.B. v. France. Judgment of 22 January 2008,
paras. 80-90. This case concerned administrative and judicial decisions that refused a person the possibility of adoption on the
grounds of her homosexuality. In the relevant part of its decision the European Court took note of the fact that sexual orientation had
not been the only ground taken into account in the decisions. However, the Court determined that the consideration of the
applicant’s sexual orientation, even if only implicit, had had the effect of influencing the entire decision. In this case, the European
Court concluded that the victim had suffered discrimination under Article 14 of the Convention for the Protection of Human Rights
and Fundamental Freedoms.