Mapuche in Chile call for release of the political prisoners

Introduction:

Even in the 16th year after the end of the dictatorship in Chile the legacy of General Pinochet has still not yet been dealt with. True, there was a reform of the constitution in August 2005, which did away for example with the lifetime posts for senators, with which the dictator wanted to secure for himself and his trusties lifelong immunity. This reform is certainly to be welcomed as an important step. But others must follow. Among these is a reform of the voting rights, giving the ethnic minorities not only the passive, but also the active right to vote. There is something very far wrong with a system which does not allow the Mapuche Aucan Huilcaman to run in the presidential elections on 11th December 2005, because he lacks the funds needed to pay the notary for the witnessing of the thousands of signatures necessary for his candidature.

In April 2004 already the government announced three principles for a new policy towards the indigenous people: a reform of the constitution, recognizing for example by ratification of the convention 169 of the International Labour Organization (ILO) the rights of the indigenous peoples of Chile, reduction of poverty and recognition of Chile’s cultural diversity. These good intentions have not so far been put into practice. Instead of this the Mapuche leaders, who for example want to draw attention to the difficult social and economic position of their communities, are mercilessly persecuted with charges and convictions on the grounds of the "Anti-terror Law”. The Society for Threatened Peoples (GfbV) is observing this with great concern and started a new campaign in the autumn of 2005 to ensure that the Mapuche leaders convicted under the Anti-terror Law (Law Nr. 18.314) are set free, that the cases against all the other defendants are tested on this legal basis and that laws like the "Anti-terror Law” or the State Security Law, with which dictator Pinochet tried to secure his power, are no longer used against the civil rights movement of the indigenous people of Chile.

Mapuche civil rights workers are criminalized

The Mapuche make up with some 1.3 million members nearly ten percent of the 15.8 million inhabitants of Chile. Following the first step of Christopher Columbus on American soil, which presaged doom for the indigenous peoples, the Mapuche on the territory of the present Chile fought for a long time against the Spaniards for their land. They had also successfully resisted the empire of the Incas. They were not conquered until Chile became independent in 1818. Today the Mapuche are a peaceable, but extremely impoverished and under-privileged minority. According to the Chilean Indian Law the Mapuche are really entitled to minority rights and the right to the return of the lands stolen during the military dictatorship of Pinochet (1973-1989). However these laws have not been implemented. So the Mapuche civil rights movements came into being, and their leaders are being criminalized as terrorists by the Chilean courts as an answer to their non-violent demands for land.

The laws in use are: the "Law for Inner Security” (Law No.12.927) and the Anti-terror Law, both taken over from the time of the dictatorship. The Anti-terror Law was indeed extended in the 1990s after the dictatorship: since then it also takes effect in the case of damage to property and of a possible link with an organisation which may be seen as of a terrorist nature. The criminal prosecution of the Mapuche is therefore regularly based on charges which are connected with the accusation of terrorism: belonging to an illegal association (among these being Mapuche associations which are legally working for more rights and also Mapuche communities which recognize their local persons of authority, the Lonkos), disturbing public order in the course of non-violent demonstrations, insulting officials, non-violent occupation of land, violence against objects or arson.

The cases against the Mapuche are dragged out a long time, who are often held in custody for months awaiting trial. The application of the Law for the Inner Security of the State and of the Anti-terrorism Law allows a particular way of handling the case, which cuts out the democratic rights of the Mapuche. The right of a fair defence is limited and extremely high prison sentences can be passed. Early release for good behaviour or amnesty are not provided for.

The laws which served during the military dictatorship of Pinochet to justify the persecution, arrest and murder of thousands of Chileans, are still being used to justify the legal persecution and arrest of any person whose words or deeds can be seen as a disturbance of the public order or criticism of the government. In violation of the legal principle "ne bis in idem” Mapuche are brought to court several times for the same offence.

The charges can for the most part not be substantiated, so that after a certain time, which means a considerable economic loss for the family, the accused must be set free again. Dubious witnesses are admitted for the prosecution. These are often employees of the timber firms, with which the Mapuche battle out their conflicts concerning land, in the course of which they are arrested. The renowned human rights organisation "Fédération international des Ligues de Droits de l’Homme” (FIDH) expressed the suspicion of witnesses being purchased, or of statements by witnesses under pressure from the employer. In their report of August 2003 we read:

"The timber companies themselves create situations to criminalize the Mapuche, Their security forces set fire to small plantations of the firm or destroy one of the lorries, so that these can then be reported to the police and a Mapuche community blamed. The purpose of these arranged acts of sabotage is to cause confusion and twist the legitimate claims of the Mapuche, claims to their land rights and to put up resistance to the invasion of their forests and they lead to unjust cases, constantly new verdicts and serious suppression. In Chile the state itself is responsible for the violence against the leaders and organisations of the Mapuche. Many communities have had to suffer from the police operations, in which violence has taken place against people and their property. Many Mapuche organisations complain that their leaders were persecuted and that they were subjected to excessive rough handling on the part of the police. It is disturbing that the state does nothing to protect the Mapuche.

In cases pertaining to the Anti-terrorism Law anonymous witnesses are also allowed. These cannot be challenged by the defence and they abet the denunciators. In addition the prosecution can spend six months on investigations and hold the accused for this time in so-called preventative custody before a formal charge is made. Lawyers defending the Mapuche receive threats. Telephones may be monitored, as in the well-publicized case in 2002 discovered by the lawyer Pablo Ortega, who defends many Mapuche who are charged or already in prison.

Legal defence for many Mapuche, who cannot afford a lawyer and must put up with being represented by assigned counsel, is not adequate. There is in addition a language problem. Many Mapuche really only speak their language and Spanish either badly or not at all, and have difficulty in understanding the charges brought against them or following the case. They cannot draw automatically on the right to use their mother tongue at court. Interpreters cannot be taken for granted.

All Mapuche who are in custody for arson and terrorist activities were in the civil rights movement and active in the struggle for the return of their land. The UN Special Commissioner for Indigenous Affairs, Rodolfo Stavenhagen, condemned during his visit of inspection in Chile the use of these laws on politically active Mapuche and termed the instigation of criminal proceedings against them as infringements of civil and human rights.

In their report on Chile for 2004 the US human rights organisation Human Rights Watch (HRW) called for example the prosecution of Mapuche civil rights workers as terrorists following land occupation or demonstrations "an exaggerated and inappropriate answer to the disturbances which are primarily aimed at objects and by no means aimed at human life”.

The land occupation and demonstrations of the Mapuche civil rights movement are not aimed at endangering human life. Charges for arson must usually be dropped because the accused cannot be proved guilty. Nevertheless the cases against the Mapuche and especially the leaders of their land rights movement are conducted as though they were about to place the state in danger. The Society for Threatened Peoples is working especially for the release of Pascual Pichun Paillalao (52), Aniceto Norin Catriman (43), Jaime Marileo Saravia (27), Patricio Marielo Saravia (31), Juan Carlos Huenulao Liemil (38), Patricia Trincoso Robles (36), Rafael Pichún Collonao (21) and Victor Ancalaf Llaupe (37). These leading representatives of the Mapuche resistance were charged and sentenced also in accordance with the Anti-terrorism Law. In October 2004 they stood before court for belonging to an illegal terrorist association. This was the Coordinadora Arauco Malleco (CAM), which was involved in various land occupation actions between 1997 and 2000, during the course of which arson and damage to property took place.

The public prosecutor, according to HRW in the already mentioned report, brought forward no less than ten witnesses, who sat behind a screen during their evidence and through a microphone which distorted their voices. Refusing to reveal to the defence the identity of the indicter contravenes however the rules of a fair court case as regulated in the International Convention on civil and political rights. The cases against all eight persons charged with belonging to an illegal terrorist association were dismissed in November 2004. This judgement was however rescinded by the High Court. So they were brought before court again in July 2005. Once again the charges against all the accused of belonging to a terrorist association were thrown out. Nevertheless they remain in custody on account of verdicts in other cases.

Torture and maltreatment

Since the penal reform, which came into force in December 2000, the number of complaints concerning arbitrary behaviour of the police against the Mapuche or individual prisoners has decreased, however the Human Rights Watch7 (HRW) does not attribute this to a rethinking inside the security machine, but to a drop in the conflicts concerning land in the light of the wave of arrests against the Mapuche leaders. Nevertheless the attacks of the "carabineros” have not ceased.

Women, children and old people, whose brothers, husbands, fathers or sons have been arrested or are wanted, suffer most from the arbitrary behaviour of the police. They can hardly defend themselves. Attacks by members of the barracked security forces are prosecuted and dealt with by military courts. These courts offer the victims no guarantee of a just and fair trial. Complaints are for the most part turned down or drawn out so that the security forces can act more or less with impunity.

Loncomilla, wife of Lonko José Osvaldo Cariqueo Saravia, who was in hiding for a long time before he was arrested, is a Machi, a witchdoctor of their community, which borders on the plantation of Poluco Pidenco. There were conflicts about this land, on which wood for the pulp industry is grown, because it belongs to the territory claimed by the Mapuche. When her husband went into hiding, Adriana had to look after the four children alone. The 15-year old Jorge was undergoing psychiatric treatment. "He has bad memories”, she said to the Human Rights Watch.8 "When the "carabineros” came on the 28th July 2004 he tried to defend me when they attacked me. They pushed him outside, held him on the ground and twisted his arm. The usually come at a time when we are all fast asleep. But would a terrorist really be found asleep at home?”

Adriana mentions another case on 7th July 2004 when the police came to her house in the evening because a neighbour, who had given evidence against her husband and her two brothers-in-law, who are also in custody, accused them of damaging his fence. She wanted to take the opportunity of finding out what had happened to her two brothers-in-law, but the man making the accusations got straight into his car and drove off so suddenly that the car hit Jorge. Three or four officers who were also present thought the boy wanted to attack the accuser, threw him to the ground and pointed their weapons at him. Adriana was afraid for her son and cried out in horror. Two policemen then began to push her around and to kick her. One lost his balance while doing so and dragged her with him to the ground. He pulled out his gun and fired two shots, which just missed Adriana’s head. She had then to go to hospital for treatment for the injuries suffered in the skirmish. The report of Human Rights Watch lists further attacks. There are still complaints from the Mapuche about torture during their stay in custody. The use of torture contradicts the UN Declaration of Human Rights, the UN Convention against Torture and the Inter-American Convention against Torture, which was also signed by Chile.

The charge of torture was confirmed by the carabinero Pino Uribe, who visited Great Britain in 2003 with a tourist visa, published the procedure of the Chilean police against minorities and minors, and then applied for political asylum, which was granted on 13th August 2003. He had refused to take part in the torture of Mapuche and was then himself the victim of chicanery and death threats by his colleagues and superiors. Pino Uribe describes forcefully the torture methods of the Chilean police. The usual methods are blows with the fists and with rifle barrels or other objects. The Mapuche are thrown to the ground and women must undergo demeaning treatment. The Mapuche are often subjected to the "dry submarine method”. They have bags placed over their heads or they are pressed under water until the point of near-suffocation. At the police-station, but also during raids in Mapuche communities sham executions are often carried out. Police officers often storm into Mapuche communities during the night with private security people and shoot into the air.

Pino Uribe refers in his application for asylum to the case of seven Mapuche from the community of Truf Truf. The Mapuche brothers Alberto and Ruperto Colimir Painemel themselves describe how they were systematically tortured at the police-station "Padre de las Casas”. The brought their case to the Inter-American Commission for Human Rights.

Non-violent protest against expropriation of land

Mapu-che means people of the earth. However the main part of the land remaining to them after the advent of colonialism was stolen from the Mapuche, mostly during the Pinochet regime. Large timber firms plant monocultures there with fast-growing wood for the pulp industry, which lower the groundwater table and dry out the soil. One of these concerns, which often appears as a plaintiff, is the Forestal Mininco. The original task of the CONADI, the Indian Office founded in 1993, is to buy land for the Mapuche and to give it back to them. But the timber firms give back of their own accord only land which is no longer suitable for the timber industry. The CONADI does not have enough money either to even start covering all the claims. It seems clear that the CONADI is only a façade, behind which the government hides its lack of concern for dealing with the indigenous people. "The Mapuche are now burdened with the absolutely useless bureaucracy of offices like the CONADI, which since its inception have been more concerned with the rules broken in its apparatus than anything else. CONADI uses up itself the money which is by law intended for the poor farmers. So far as the relationship between the Mapuche communities and the CONADI is concerned, present developments are proof of its incompetence as an official body. The CONADI is incapable of dealing with the situation and is not recognized as an official instance by any of the conflict parties. The only reason for anyone applying to them is the access to monies from the land fund.”9

So many Mapuche Indians have no other course open to them than non-violent land occupation, blockades of access roads and protest marches to demand their rights. These non-violent protests are constantly beaten down by force. So Alex Lemun (17) died from a policemen’s bullet in November 2003. In May 2005 Zenon Alfonso Díaz Necul (17) was run over during a demonstration. In both cases those responsible have remained unpunished until the present day.

Mapuche who have been politically persecuted

For the Mapuche communities everyone is politically persecuted who comes to the attention of the public prosecutor. The charges normally made are those of belonging to an illegal organisation, threats or lack of respect for official persons, wilful abduction, theft, arson, embezzlement, causing a disturbance and wilful damage to property. Above all, those Mapuche who have developed into leaders and coordinate land occupation for example are charged as terrorists in accordance with the Anti-terrorism Law, while others are charged in accordance with the "normal” laws. Others disappear and escape jurisdiction because they have no confidence in the judiciary.

Charged as terrorists

The family fate of Pascual Pichun Paillalo (52), Lonko (community chief) of the community of Antonio Ñiripil in the 9th region stands for many others. In 1998 the father of seven children, some of whom were minors, led the land occupation demonstration at a parcel of land, which officially belonged to the timber company Transnacional Minico S.A. but which is claimed by the Mapuche as being traditionally their land. Since then the Lonko has had to appear before court on several counts for arson and illegal terrorist association. Twice he was discharged for lack of evidence, but in September 2003 he was on appeal a sentence of imprisonment was passed of five years and one day. So-called faceless, i.e. anonymous witnesses gave evidence in the case. He was found not guilty of belonging to a terrorist association only in November 2004 and after an appeal in July 2005. Since the sentence for arson remains, the Lonko is still in prison.

Two of the Lonko’s sons, Rafael Pichun Collonao (21) and Pascual Pichun Collonao (23), were in 2003 after an unusually long remanding custody of 294 days sentenced to five years imprisonment each and a very high fine for the poor Mapuche people of 6,000,000 pesos (approx. 8,800 euros) for setting fire to a lorry. In the light of loud protests the sentence was commuted to probation. But as the two could not pay the fine they were imprisoned once more. The Supreme Court did revoke this decision. An appeal against this finding was however successful. In November 2003 a warrant was again issued for their arrest. They both disappeared, but Rafael was discovered on 21st July 2005 and arrested. Pascual sought asylum on 7th December 2005 in Argentina.

Aniceto Norin Catriman (43) and Lonko from the Lorenzo Lorin community, who together with Pascual Pichun Paillalo led the land occupation in a piece of woodland claimed by the Minico S.A. had a long spell in court-rooms and prison cells. He was sentenced to three years imprisonment for arson and illegal purloining of land, of which he served one year before being acquitted in fresh proceedings. This acquittal was also followed by a new appeal, which had initial success, ending in a prison sentence of five years and one day. Aaniceto Norin Catriman was found not guilty of belonging to a terrorist organisation in the same case as Pascual Pichun Paillalo first in November 2004 and then in July 2005, but he remains in custody for other sentences.

The same is true for the Kg/in Patricia Troncoso Robles (36), who had taken part with the two Lonkos in the land occupation. Like them Patricia was at first acquitted, but after a successful appeal brought back to court and then acquitted again. Patricia was also involved in the squat at the parcel of land Poluco Pidenco. For this she was sentenced to ten years and one day in prison and a payment of compensation of 400,000,000 pesos (aapprox. 586,000 euros).

The brothers Florencio Jaime Marileo Saravia (27) and José Patricio Marileo Saravia (31) were arrested and charged with occupying the parcel of land Poluco Pidenco, which is owned by the Minco S.A. Florencio was arrested in December 2002, José in March 2003. Both spent an unusually long time in remanding custody, Florencio for more than one year. The sentence, which the two brothers received in August 2004, was also unusually high: ten years and one day in prison and a fine of 400,000,000 pesos.

Their brother, Lonko José Osvaldo Cariqueo Saravia, disappeared, but was also arrested by a special unit of the carabineros on 26th October 2005. Like his brothers he was charged with arson in the course of occupying the plot of land Poluco Pidenco and also with belonging to a terrorist organisation according to the Anti-terrorism Law. When the case against him will be opened is at the time of going to press not known.

The fate of his family is typical of the harassment to which politically active Mapuche in democratic Chile see themselves subjected. Five times a large squad of almost 200 carabineros alone in the year 2003 searched the community of José Guiñón for the three brothers. Their mother – then aged 86 – remembers: "They grabbed me, dragged me over the stones like an animal and threw me into their transporter like a sack of potatoes. Twice they struck me in the face. Who gives them the right to hit an old woman?”10

Another unfortunate was Juan Carlos Huenulao Lielmil (38) from the community Manuel Catrimil, who, for arson on the plot Poluco Pidenco. was likewise sentenced to ten years and one day in prison and a fine of 400,000,000 pesos. He had disappeared and was not arrested until February 2005 in a police check.

Victor Ancalaf Llaupe (37), father of five children and a simple farmer, was in 1998 one of the founders of the Coordinadora de Communidades in Conflicto Arauco-Malleco CAM. As their spokesperson he called on the Mapuche farmers to emphasise if necessary with sit-ins the land demands of his people at government and timber companies. But he also conducted official negotiations and so got back 2,000 hectares of Mapuche land. His activities brought for him several arrests and charges between 1998 and 2000 for violation of public order or damage to the property of others. However the indications were never sufficient for a conviction. This changed in April 2001. He had to remain in custody for seven long months because he had purportedly abducted an officer of the appeal court of Temuco. In fact some Mapuche had demonstrated with a limited sit-in at the court-house for the release of ten Mapuche prisoners. On his release he tried, albeit in vain, to defend their land and the burial-places of their ancestors against the electricity company Endesa. The land has meanwhile disappeared in a reservoir which supplies the Ralco power station with energy. Victor Ancalaf Llaupe was finally charged in November 2002 with terrorist arson against the Endesa Company and in January 2004 he was given a prison sentence of ten years and one day. This sentence was on appeal in November 2004 commuted to five years and one day.

Campaigns of the GfbV for the political prisoners

It is scandalous and shameful for democracy when people, who organise peacefully and without violence against people, demonstrate or occupy for a short time land which basically belongs to them, and are then prosecuted and convicted on the basis of a law which not only has its origin in the dictatorship, but was also sharpened in the ensuing democracy. So the Society for Threatened Peoples (GfbV) is taking up the cause of political prisoners among the Mapuche especially for the eight Mapuche mentioned above, who are at present in custody and have been convicted in accordance with the Anti-terror Law. In the autumn of 2005 the GfbV started a new campaign for the release of these Mapuche detainees, for the examination of all the cases against Mapuche in connection with land appeals and for the abolition of the Anti-terror Laws, which date back to the time of the dictatorship. In this sense we have addressed appeals to the Lagos government in Chile, to several hundred other politicians, church representatives and media representatives in Germany, the USA, the EU, Chile and other countries of Latin America.

Demands of the GfbV

Footnotes

1 The International Labour Organisation (ILO) is an organisation of the United Nations based in Geneva. Its Convention 169 is the only binding catalogue of basic rights for indigenous peoples on the level of international law. It was passed in 1989 and has been ratified so far by 17 states, among them Denmark, the Netherlands and Norway.

2 To the Mapuche belong the Mapuche, Pehuenche, Huiliche, Lafquenche, Nagche, and Huetenche. Apart from these there also live in Chile members of the Aymara, Rapanui, Cunsa and Atacameño as well as several hundred members of groups belonging to the Coya, Kaweskar and.Yámana.

3 Chile. The Mapuche People: Between Oblivion and Exclusion, FIDH-Report No. 358/2, August 2003, p. 14

4 Chile. The Mapuche People: Between Oblivion and Exclusion, FIDH-Report No. 358/2, August 2003, p. 17

5 Coommission on Human Rights, Sixtieth Session, Item 15 of the provisional agenda, Indigenous issues, Human rights and indigenous issues, Report of the Special Rapporteur on the Situation of human rights and fundamental freedoms of indigenous people, Mr. Rodolfo Stavenhagen, submitted in accordance with Commission resolution 2003/56, Addendum, Mission to Chile, E/CN.4/2004/80/Add.3, 17th November 2003

6 HRW, Country Summary January 2005, Chile

7 Undue Process: Terrorism trials, Military Courts and the Mapuche in Southern Chile; Report jointly published by Human Rights Watch and Indigenous Peoples’ Rights Watch, October 2004; p. 43

8 Undue Process: Terrorism trials, Military Courts and the Mapuche in Southern Chile; Report jointly published by Human Rights Watch and Indigenous Peoples’ Rights Watch, October 2004; p. 43/44

9 Interview with the delegate Eduardo Daz, in: Chile. The Mapuche People: Between Oblivion and Exclusion, FIDH-Report No. 358/2, August 2003, p. 18/19

10 Undue Process: Terrorism trials, Military Courts and the Mapuche in Southern Chile; Report jointly published by Human Rights Watch and Indigenous Peoples’ Rights Watch, October 2004; p. 43