IACHR Takes to Inter-American Court of Human Rights Case Involving Violations of the Rights of Mapuche Individuals During Criminal Justice Proceedings in Chile

March 29, 2023

Washington, D.C. – The Inter-American Commission on Human Rights (IACHR) filed on January 27, 2022, an application before the Inter-American Court of Human Rights in a case involving rights violations against 140 Mapuche individuals, with regard to Chile. These rights violations were allegedly committed during criminal proceedings linked to these individuals' participation in protests in 1992, to mark the 500-year anniversary of the conquest of the Americas.

These victims were subjected to criminal proceedings and convicted of usurpation, illegal association, contempt, theft, cover-up of theft, and bodily harm, with penalties ranging from payment of a fine equivalent to six minimum wages to three years and nine months in prison. Various appeals filed by the victims were rejected.

The Commission noted that the two initial court decisions were made by a "visiting magistrate" (Ministro en Visita), a figure who is designated in cases that cause public alarm and require speedy repression. However, no reasons were provided to justify the designation of a visiting magistrate in this case. The Commission further noted that there was a conflict of interest in the visiting magistrate's appointment, conducted by an official who had been criticized by Mapuche individuals, and that the magistrate was irregularly involved in both the prosecution and the conviction of the victims.

Concerning the legality principle and the obligation to justify decisions, the Commission found that the crimes of usurpation and illegal association had both been defined ambiguously, in a way that failed to comply with the applicable international standards. In particular, the reference to usurpation did not specify the intent of the individuals who had allegedly committed the crime, which enabled a criminalization of the exercise of the right to freedom of expression and association.

The Commission stressed that conducts held in these rights—such as "making derogatory comments," "creating a Mapuche symbol or flag," receiving international funding, publishing a newspaper, or being opposed to celebrations to mark the 500-year anniversary of the conquest—were described as crimes.

The IACHR found that this implied criminalizing the legitimate exercise of freedom of expression and association, which entails clear violations of the legality principle and the obligation to justify court decisions. The Commission further noted that the State of Chile had violated these victims' rights to be heard in a timely manner, to judicial security, and to the presumption of innocence.

The Commission also found that the State had violated some of these victims' right to prior, detailed notification of the charges and their right to the provision of adequate means to enable their defense. These victims were convicted without having previously had criminal charges pressed against them.

The IACHR therefore concluded that the Chilean State is responsible for violations of the right to be tried by an impartial authority, the right to adequate justification of court decisions, the principle of the presumption of innocence, the right to prior, detailed notification of the charges, the right to have adequate time and means to prepare a defense, the legality principle, the right to freedom of expression, the right to freedom of association, and the principle of equality and non-discrimination, held in Articles 8.1, 8.2, 8.2(b), 8.2(c), 9, 13.1, 13.2, 16.1, 16.2, and 24 of the American Convention, in accordance with Articles 1.1 and 2 of this instrument.

In its report, the IACHR recommended that the State:

1. Take measures to revoke the criminal court decision against these 140 victims, erasing the criminal records that stem from it.
2. Provide both material and immaterial reparations to the victims, including financial compensation and other forms of redress.
3. Adjust the definitions of the crimes of usurpation and illegal association to ensure they reflect the legality principle, in compliance with the standards held in this Merits Report.
4. Take measures to eradicate the discriminatory use of criminal law based on individuals' ethnic background, particularly targeting the Mapuche indigenous people. This requires that the State train criminal justice officials including public prosecutors and judges to ensure that criminal justice no longer criminalizes conduct that is protected by the American Convention. 

A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for and to defend human rights in the region and acts as a consultative body to the OAS in this area. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.

No. 051/23

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