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Monday, October 5, 2015
- “What is happening in Chile isn’t justice; it’s a pantomime, because under the anti-terrorism law, there is absolutely no way justice can be done,” José Venturelli, spokesman for the European Secretariat of the Ethics Commission against Torture, said on a recent visit to this South American country.
The controversial law that Venturelli was referring to has been used to try members of Chile’s Mapuche indigenous community involved in the long-running struggle for their right to land.
Ramón Llanquileo, José Huenuche and Jonathan Huillical, sentenced to 20 years in prison, and Héctor Llaitul, sentenced to 25 years, began a hunger strike on Mar. 15 in a prison in southern Chile, demanding a fair and impartial retrial.
The four Mapuche activists were not actually tried under the counter-terrorism law, which dates back to the 1973-1990 dictatorship of General Augusto Pinochet and has been widely condemned by the international community.
But although they were tried under ordinary criminal law, the case against them was built on the investigation carried out under the anti-terrorism legislation, and their recent conviction was based on the testimony of police officers and anonymous witnesses.
The four were found guilty of theft of lumber and attempted murder for allegedly attacking a prosecutor riding in a motorcade in 2008 in the southern town of Tirúa, 700 km south of the capital.
Although the dictatorship-era law has been reformed several times, its critics, in Chile and around the world, say it is still a draconian measure used against Mapuche leaders and land right activists.
The Mapuche, Chile’s largest indigenous group, number nearly one million in this country of over 16 million people, and the struggle for their ancestral land in the south of the country has frequently pitted them against large landholders, logging companies and other private interests.
The law “has been modernised, but in terms that would make it appear that the state’s repressive apparatus must indispensably have an extreme mechanism” to resort to, lawyer Julio Cortés told IPS.
Legal experts say the law violates the right to the presumption of innocence and thus makes a fair trial impossible.
Under the law, prosecutors may keep their evidence secret, anonymous witnesses can testify for the prosecution, prosecutors may apply for powers to tap telephones and intercept correspondence, emails and other communications, suspects can be held for up to ten days before formal charges are brought, and detainees often face long periods of pretrial detention and disproportionately long sentences.
Another danger is double jeopardy, because some Mapuche detainees are tried for the same crime by the civilian and military justice systems, with the two sentences served consecutively, which is considered a legal aberration.
In a report issued last year on Chile, the Inter-American Commission on Human Rights (IACHR) stated that without a clear definition for terrorism, the law grants officials wide discretion in determining what is terrorist behaviour.
Right-wing Chilean President Sebastián Piñera admitted that the law was flawed, but defended the need for it.
It is necessary “to bring our ant-terrorism legislation into line with the standards of democracies in the developed world, but that must not mean that we let our guard down against this cruel, merciless scourge, which is itself a grave violation of basic rights,” Piñera said in his annual state of the nation address on Saturday May 21.
“It’s true that after 2001 (the 9/11 attacks in Washington and New York), powers to combat terrorism at a global level increased…but in the case of this Chilean law, it allows crimes against property to be treated as terrorist crimes, which is disproportionate,” Cortés said.
The IACHR also criticises the use of protected or “faceless” witnesses, whose elimination was called for by independent, socialist and communist lawmakers in a new attempt to modify the law.
“The possibility of gathering evidence through protected witnesses and experts,” and of paying them for testifying, perverts the essence of evidence and impartiality and encourages accusations “in exchange for money and the fabrication of evidence,” says the parliamentary initiative presented in April.
Weapon against Mapuche protests
There are 49 Mapuche leaders and activists currently facing charges or serving sentences for crimes investigated or prosecuted under the anti-terrorism law.
The four hunger strikers have appealed to the Supreme Court to annul the ruling on the grounds that the trial was plagued with irregularities and that their constitutional rights were violated. The Court is due to hand down its verdict in June.
In the meantime, government spokeswoman Ena von Baer urged the hunger strikers to call off their protest.
“An autonomous decision was handed down by the courts, and it is not the government’s place to comment on legal decisions,” she said.
Mapuche and human rights groups say the arrests of native activists and their supporters must be understood in the context of the struggle for their land, which does not involve terrorist actions or illegal association.
Since 2008, the anti-terrorism law has also been used to try five members of the Mapuche community under the age of 18.
“Of course it is even more serious when conventions signed and ratified by Chile, like the Convention on the Rights of the Child, are disregarded,” José Horacio Wood, director of the ANIDE children’s rights foundation, told IPS.
All minors under the age of 18 must be tried in Chile under the law on adolescent criminal responsibility.
Law targets not only Mapuche protesters
The defendants in the “bomb case” denounce the same irregularities in the investigation and excessive periods of detention protested by the imprisoned Mapuche activists.
“What happened with the Mapuche defendants was basically a laboratory on how to apply this law in times of democracy,” said Cortés, the defence attorney in the “bomb case.”
The 14 suspects in that case – an anthropologist, university students, squatters, anarchists and former guerrillas who fought the Pinochet dictatorship – are accused of illicit terrorist association and of setting off 29 bombs. Ten of the defendants went on a 65-day hunger strike from February to April.
“The ‘bomb case’ would seem to be the ‘rigged’ or ‘setup’ case, because it turns out that it is hard to find any acceptable proof,” said Venturelli, referring to the more than 2,500 pieces of “evidence” presented by the prosecutors that were thrown out in the trial, including books on anarchy, fire extinguishers, bicycles, printers and newspapers.
Critics of the anti-terrorism law see it a dangerous instrument with the potential to be abused in the suppression of political dissent and protest, since it annuls the possibility and right to a defence.
“By means of the anti-terrorism law, they have managed to maintain pressure on any kind of protest,” said Venturelli.
The four hunger strikers have lost between 17 and 21 kilos since they began the hunger strike in mid-March. They are suffering from fever, severe muscle cramps and headaches, extreme weakness, and dizziness.