The year 2008 marked the 18th anniversary for the restoration of democracy in Chile. However, this democracy still suffers from shortcomings, for instance in the electoral system, since the Constitution promulgated by General Pinochet in 1980 remains in force. Although it has undergone reforms, it lacks social legitimacy, and the need for a new constitution is growing.
The work of the judiciary in connection with human rights violations committed under ex-President Augusto Pinochet's dictatorship continued to advance gradually, but with some serious contradictions. First, most judges working exclusively on cases of enforced disappearances or extrajudicial killings have chosen to respect international human rights standards, which exclude granting amnesty or prescription for such crimes, and have consequently given the perpetrators sentences that are relatively well proportionate to the gravity of their crimes. However, when the cases were brought before the court of last instance, i.e. the Supreme Court, the latter has sometimes considerably reduced the sentences, granting de facto impunity for the perpetrators of these serious crimes. Chile still has serious flaws, as it has not yet adapted its legislation to the Convention Against Torture, which the country has ratified, and the military courts still have much power over the civilians. The Parliament still poses a problem when it comes to approving other international instruments and establishing human rights institutions, such as the bills on a Human Rights Institute and Ombudsman (Defensor del Pueblo). In June 2008, a bill was presented in the Senate, which interprets Article 93 of the Criminal Code as to exclude genocide, crimes against humanity or war crimes – which are the subject of the international treaties Chile has ratified – from periods of limitation for penal responsibility by way of amnesties, pardons or prescription. A similar bill was presented by the executive branch on August 28, 2008.1 However, at the end of 2008, these bills were still under consideration.2 In addition, the victims' right to reparation is largely insufficient: even though almost 30,000 victims were registered by the truth commissions, several thousand persons were left out due to the commissions' reduced capacities.
Furthermore, in 2008, a great challenge for the Chilean State was the lack of respect for indigenous peoples, mostly Mapuche, who continued to be subjected to severe discrimination and a lack of acknowledgment of their culture and rights, despite the International Labour Organisation's (ILO) Convention No. 169 concerning Indigenous and Tribal Peoples being ratified and entering into force on September 15, 2008, after being debated in Parliament for over 17 years. This is nevertheless an important milestone in the acknowledgment of these peoples. However, the areas that the indigenous peoples claim as their ancestral land continued to be plundered and occupied by large companies exploiting natural resources. These areas were also conflict zones where large armed police forces protected the interests of transnational companies, and during which assaults, arrests and arbitrary detentions took place. The confrontations even led to the death of a young Mapuche student: on January 3, 2008, Mr. Matías Catrileo Quezada was shot by carabineros (uniformed police belonging to the armed forces) while he and twenty other persons were taking part in a demonstration reclaiming the ancestral land of Vilcún's Llepuco community in the Araucanía region.3 In addition, in 2008, the indigenous communities in the Bío Bío and Araucanía regions were victims of house raids and other serious acts of harassment, while perpetrators did not distinguish between adults and children.4 Some of these violent acts attributable to the carabineros and the investigation division of the police constituted acts of torture under the Convention Against Torture. Four cases of torture were registered in 2008.5 The majority of the acts of repression were committed against the Mapuche, who claim their ancestral lands. Those who have been imprisoned were subjected to degrading treatments, and racist insults were common.6 Although Ms. Bachelet's Government committed to no longer employing the Anti-Terrorism Law in the conflict between the Mapuche and the State, on October 30, 2008, two students from Temuco Catholic University, Mr. Fénix Delgado Ahumada and Mr. Jonathan Vega Gajardo, were accused of throwing an incendiary bomb against the police during a street demonstration on the outskirts of the city. They were both arrested under the Anti-Terrorism Law.7
Repression of indigenous leaders and defenders of the rights of indigenous peoples
General repression by the police of indigenous peoples and their leaders continued in 2008. They were frequently victims of arbitrary detention, harassment, threats, violent acts and judicial proceedings. On April 22, 2008 for instance, the Lonko (traditional authority) of the Pascual Coña community, Mr. Avelino Meñaco, was released for lack of evidence after four months in detention for allegedly committing arson during a hunger strike carried out by Mapuche political prisoners on October 12, 2007. Only one week later, however, on April 30, 2008, the Special Prosecutor for Mapuche cases, Mr. Mario Elgueta Salinas, revoked the release authorised by the Cañete Court before the Concepción Court of Justice. A new order was thereby issued for Mr. Meñaco's arrest, based on alleged new evidence. Mr. Meñaco was finally released on January 2, 2009 after lengthy judicial proceedings.8
Moreover, on July 28, 2008, the leader of the Yeupeko Mapuche community, Mr. Mauricio Huaiquilao Huaiquilao, was approached by two policemen on his way home. The officers brought him to the police station, accusing him of being drugged and drunk. After interrogating him, they confiscated several of his belongings, including money, before they undressed him, beat him and threatened to kill him. Mr. Huaiquilao Huaiquilao was released at around 6 am on the next day without further notice.9 At the end of 2008, the Lonko of the Juan Paillalef Mapuche community in the Cunco commune in Temuco, Ms. Juana Calfunao Paillalef, was still being detained and in very poor health condition. Ms. Patricia Troncoso Robles, Mr. José Huenchunao and Mr. Jaime Marileo Saravia, as well as other Mapuche leaders, also remained detained at the end of 2008. It must be stressed out that Mapuche prisoners, like all other prisoners, are being held under extremely poor conditions, which constitute mistreatment under international law.
Defenders of the rights of indigenous peoples had to work in a complex environment. They were subjected to threats and acts of harassment, including undergoing rough identity checks when entering conflict zones, receiving degrading treatments when visiting political prisoners and being subjected to unjustified interrogations and house raids. For instance, Ms. Yénive Cavieres Sepúlveda, a lawyer and member of the Chilean branch of the American Association of Jurists (Asociación Americana de Juristas – AAJ), who has defended Mapuche leaders in several trials, was arrested by carabineros while she was taking part in a peaceful demonstration protesting for the death of Mr. Matías Castrileo Quezada. A witness of the arrest of Ms. Orielle Núñez, Ms. Berna Castro and others demonstrators, Ms. Cavieres Sepúlvedatried to plead with the carabineros in her capacity as a lawyer, in order to defend the right to freedoms of expression and peaceful assembly. The police violently repressed the demonstration, and arrested Mr. José Pallial, a Mapuche leader, as well as his 11-year old son and 14 other Mapuche. Likewise, on May 7, 2008, Ms. Elena Varela, a documentary film maker, was detained and harassed by the police, who also confiscated all her film material. Ms. Varela was shooting the documentary "Newen Mapuche" about Mapuche communities affected by increased activity by logging companies in Araucanía and the severe repression by the police of the protests, as well as how Mapuche are subjected to judicial harassment under the Anti-Terrorism Law. Ms. Varela was released in wait of her sentence after almost ten days remand imprisonment for "constituting a danger to society", and has not retrieved her film material, despite the Government's commitment to help her in this regard.10 In addition, on December 9, 2008, an unjustified house raid was carried out against the home of Mr. Lorenzo Morales Cortés, a lawyer who has defended several members and leaders of the Mapuche community. During the raid, which was ordered by the Judge of the Seventh Court of Guarantee (Séptimo Juzgado de Garantía), Mr. Morales Cortés' computer was confiscated, along with important documents pertaining to trials he was working on,11 and his documents and files were photographed.
Criminalisation of social protest
Social protest movements were persistently criminalised in 2008. A highly worrying issue in this connection was the repression of students who took part in demonstrations. Indeed, in various demonstrations against measures adopted by the Government, such as the General Education Law (Ley General de Educación – LGE), students were arbitrarily and randomly detained, such as in the case of the student leader María Jesús Sanhueza. In other cases, students were victims of brutal police actions during which they were beaten and gas was employed against them, as in the case of Ms. Carolina Angulo.12 It is worth noting that, in the framework of the student mobilisations in 2008, the national authorities repeated that unauthorised demonstrations would not be tolerated, that students should be in class, not in the streets, and that violence was linked to the peaceful takeovers of educational institutions. Even though there was some violence, and in some cases damage, these cases were much fewer in relation to the number of students participating in demonstrations over the past two years. At the same time, the authorities urged educational institutions to apply internal sanctions and to resort to courts to empty occupied buildings.
Similarly, various workers' demonstrations were organised throughout 2008, during which workers and several trade union leaders were brutally assaulted by the police. On January 24, 2008 for instance, Ms. Claudia Álvarez, leader of the Copiapó Temporary Agricultural Workers' Union (Sindicato de Trabajadores Eventuales y Transitorios del Sector Agrícola de Copiapó), and Mr. Javier Castillo, leader of the Workers' United Confederation in Chile (Central Unitaria de Trabajadores – CUT), were arrested and accused of "encouraging the violence" when 500 armed special force policemen intervened in a demonstration organised by a group of temporary workers who demanded higher wages and better working conditions in Los Loros in the Tercera region. In addition, on August 20, 2008, Mr. Leonel Báez Orellana, leader of the National Union of the San Felipe Ltd Construction Company Workers (Sindicato Nacional de Trabajadores de la Empresa Constructora San Felipe S.A.), was brutally beaten and detained along with other union members during a peaceful demonstration in Tocopilla, which was interrupted by heavily armed policemen. On the following day, Mr. Baéz had to undergo surgery for the severe injuries he sustained during the police action.13
Urgent Interventions issued by The Observatory in 200814
|Names of human rights defenders
|Date of Issuance
|Ms. Yénive Cavieres Sepúlveda and Mr. José Pallial
|January 11, 2008
|Ms. Juana Calfunao Paillalef
|Worrying health condition / Arbitrary detention
|Urgent Appeal CHL 001/0705/OBS 056.9
|June 18, 2008
|Mr. Lorenzo Morales Cortés
|House raid / Harassment / Fear for safety
|Urgent Appeal CHL 001/1208/OBS 214
|December 16, 2008
1 Not only could this bill have contributed to specifying the legal framework and improving the efficiency of proceedings to try the persons responsible for such crimes during the dictatorship, but it could also have given Chile the right to claim in the future its competence to try such crimes recognised at the international level within its territory.
2 See the Citizens' Observatory (Observatorio Ciudadano) and the Centre for Mental Health and Human Rights (Centro de Salud Mental y Derechos Humanos – CINTRAS).
3 See Citizens' Observatory.
5 See Report presented by the Citizens' Observatory at the fifth session of the Universal Periodic Review (May 4-15, 2009), also signed by the following NGOs: the American Association of Jurists (Asociación Americana de Juristas – AAJ), the Corporation for the Promotion and Defence of the Rights of the People (Corporación de Promoción y Defensa de los Derechos del Pueblo – CODEPU), the Corporation OPCIÓN, the Ethical Commission Against Torture (Comisión Ética contra la Tortura), CINTRAS, the Coordinating Committee of Human Rights of Professional Schools in Chile (Coordinador de Derechos Humanos de los Colegios Profesionales de Chile) and the Chilean Network of NGOs for Childhood and Youth (Red de ONG Infancia y Juventud Chile).
8 Including an acquittal on November 3, 2008, followed by a request for annulment by the Prosecutors Ángel Velásquez and Mario Elgueta, and an appeal lodged by the defence against this request. See CINTRAS.
9 See Report to the Government by the Campaign "Stop! No More Police Violence" (Alto ahí Basta de violencia policial!), September 9, 2008, written by several NGOs: Citizens' Observatory, Amnesty International, AAJ, CODEPU, Corporation OPCIÓN, Ethical Commission Against Torture, CINTRAS and the Chilean Network of NGOs for Childhood and Youth.
11 Including his entire defence for the December 15 trial at the San Miguel Appeals Court in Santiago, where he had planned to protest against the request for annulment of the acquittal of Mr. Avelino Meñaco for his arson charges.
12 One of the most dramatic events occurred on June 16, 2008, providing evidence for the police's use of gas and water mixed with chemicals in their water cannons, which was testified to by a number of complaints and images from the protests that appeared in the media. At 2 pm on this day, a water cannon vehicle (guanaco) dispersed a student demonstration. Fleeing from the smell of the liquid, Ms. Carolina Angulo suffered a cardiac arrest. Students complained that the police did not pay sufficient attention to the girl lying on the ground and that the water cannon vehicle passed by the spot where she laid, firing liquid with toxic gases. This was corroborated by a video recorded at the time. See Report to the Government by the Campaign "Stop! No More Police Violence", September 9, 2008.
13 See Report to the Government by the Campaign "Stop! No More Police Violence", September 9, 2008.
14 See the Compilation of cases in the CD-Rom attached to this report.