the State’s opposition, which will not be admitted because they were not requested by the
President and are not contemplated in the Court’s Rules of Procedure.
64.
Subsequently, on May 9, 2014, the FIDH asked the Court, based on Article 57(2) of the
Rules of Procedure, to “incorporate into the body of evidence the Report of the United Nations
Special Rapporteur on the promotion and protection of human rights and fundamental freedoms
while countering terrorism […] on his mission to Chile [in July 2013], published on April 14,
2014.” In its observations, CEJIL stated that it “had no objection to the inclusion [of this report]
in the body of evidence, because […] the situation is in keeping with the requirement indicated
in Article [57(2) of the Court’s Rules of Procedure.” In its observations, Chile asked the Court
not to incorporate the said document, because the FIDH had not justified the incorporation of
the document and, “of itself, it does not constitute evidence […] because it does not refer to the
events that are the subject of these proceedings.” The State also indicated that, if the Court
found it pertinent and useful to incorporate this document, it considered it “extremely relevant
that it should also incorporate the missing elements of the constructive dialogue relating to the
visit of Special Rapporteur Emmerson, which were: Chile’s response to this report, and the oral
intervention when the report was adopted.”
65.
The two reports issued by the Special Rapporteur on the promotion and protection of
human rights and fundamental freedoms while countering terrorism on his visit to Chile from
July 17 to 30, 2013, are official documents issued following the presentation by the common
interveners of the representatives of their motions and arguments briefs. The document issued
on July 30, 2013, contains the Special Rapporteur’s “preliminary evaluation” of this visit and,
subsequently, in April 2014, the corresponding final report was issued.57 Consequently, this
documentary evidence meets the formal requirements for its admissibility as evidence
concerning a supervening fact, in accordance with Article 57(2) of the Rules of Procedure, and it
will be incorporated into the body of evidence for assessment in keeping with the rules of sound
judicial discretion and taking into consideration the observations made by Chile.58 Regarding
these observations, it should be noted that the Court can take into account this report owing to
the probative elements that it may provide for the necessary understanding of the context in
order to analyze this case, even though its purpose was not to refer to the application of the
Counter-terrorism Act in the criminal proceedings against the eight presumed victims in the
case, but rather it had a broader and more general purpose related to “the use of anti-terrorism
legislation in connection with protests by Mapuche activists aimed at reclaiming their ancestral
lands and asserting their right to collective recognition as an indigenous people and respect for
their culture and traditions.”59 The Court considers that the State’s request to incorporate its
57
“Preliminary report” of the Special Rapporteur for the promotion and protection of human rights and
fundamental freedoms while countering terrorism on the visit he made to Chile from 17 to 30 July 2013, 30 July 2003,
available
at:
http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G14/134/89/PDF/G1413489.pdf?OpenElement.
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 (merits file, tome V, folios 2566 to 2587). This was presented to the Human Rights Council of the United Nations on
March 10, 2014, at the twenty-fifth session. This visit to Chile of the Special Rapporteur focused on “the use of antiterrorism legislation in connection with protests by Mapuche activists aimed at reclaiming their ancestral lands and asserting
their right to collective recognition as an indigenous peoples and respect for their culture and traditions.”
58
Cf. Case of the "Five Pensioners" v. Peru, para. 84, and Case of the Afro-descendant Communities Displaced from
the Río Cacarica Basin (Operation Genesis) v. Colombia. Preliminary objections, merits, reparations and costs. Judgment of
November 20, 2013. Series C No. 270, para. 49.
59
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, para. 9 (merits file, tome V, folios 2566 to 2587).
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