HUILCAMAN ET AL.
February 27, 2002
On September 18, 1996, Mr. Aucan Huilcaman Paillama and
nine other members of the Mapuche organization Aukiñ Wallmapu
Ngulam (Council of All Lands),
with Roberto Celedón Fernández serving as their attorney
(hereinafter jointly referred to as “the petitioners”), sent a
communication to the Inter-American Commission on Human Rights
(hereinafter “the IACHR” or “the Inter-American
Commission”) wherein they allege that the Republic of Chile
(hereinafter “the State”) is responsible for violating the
rights of more than one hundred persons belonging to that ethnic
group. They complain
of “unjust persecution via the courts”, said to have started
in June 1992 and ended in March 1996, as punishment for “having
peacefully claimed the traditional rights associated with their
existence and culture.” They
are referring to acts organized and conducted by the Council of
All Lands in April 1992, to protest the quincentennial of the
arrival of the Spanish in the American hemisphere.
These included the formation of a “first Mapuche
tribunal” and the so-called “land reclamation process” in
which they occupied various properties adjacent to their
In response, Chile’s judicial branch of government
appointed a visiting magistrate who heard a number of criminal
complaints brought by the governor of Region IX of that country
against more than one hundred Mapuche and against the organization
called Council of All Lands.
Proceedings were conducted on charges of land grabbing.
The magistrate declared the Council of All Lands to be an
unlawful organization. The
judgment of first instance, of March 11, 1993, convicted 141
persons of the Mapuche ethnic group, and was confirmed by a
decision of the Temuco Appellate Court on September 6, 1994.
Then, on March 27, 1996, the Chilean Supreme Court rejected
the appeal filed by the attorneys for the alleged victims, seeking
reversal of the lower courts’ decisions.
The petitioners allege serious procedural irregularities,
as in the case of two Mapuches who were convicted of land grabbing
without ever being charged with that crime, and another who was
convicted in the court of second instance, although he was not
tried or even named in the judgment of first instance.
Other persons were prosecuted, but their names do not
appear in any judgment of conviction, leaving their situation
The petitioners allege that the facts reported are
violations of various articles of the American Convention on Human
Rights (hereinafter the “American Convention”): the right to
personal liberty (Article 7); the right to a fair trial (Article
8); freedom of association (Article 16), and the right to equal
protection (Article 24). They
further contend that all the admissibility requirements set forth
in the Convention have been fulfilled.
The Chilean State, for its part, does not deny the facts
denounced. It argues,
however, that these facts are not imputable to the State and asks
the Commission to so find. The
State also asks the Commission to regard the creation of the Corporación
Nacional de Desarrollo Indígena
[National Indigenous Development Corporation] and the enactment of
Indigenous Law Nº 19,253 as measures to ensure respect for the
human rights of the alleged victims.
Without prejudging the merits of the case, in this report
the Commission concludes that the case is admissible, as it meets
the requirements stipulated in Articles 46 and 47 of the American
Commission, therefore, decides to notify the parties of the
decision and to proceed with the analysis of the merits of the
alleged violation of Articles 1(1), 7, 8, 10, 16, 24 and 25 of the
PROCESSING BY THE INTER-AMERICAN COMMISSION
The original petition was received on September 23, 1996.
On November 8 of that year, the Commission asked the
petitioners to supply additional information on the alleged
violations and identify the victims by name.
That information was sent to the Commission in
communications dated March 18 and October 18, 1997.
In accordance with the Rules of Procedure in effect at that
time, on December 22, 1997, the Inter-American Commission
forwarded the pertinent parts of the petition to the Chilean
State, assigned it case number 11.856 and requested information
from the State within 90 days.
At the State’s request, on April 1, 1998 the Commission
granted it a 60-day extension.
The State submitted its response on June 5, 1998.
In a communication dated July 30, 1998, the petitioners
forwarded their observations on the State’s response.
The Inter-American Commission forwarded that communication
to the State on August 21, 1998.
On October 6, 1998, a hearing on this matter was held at
Commission headquarters. The
document “IACHR proposal for a friendly settlement” was signed
there by both parties and the representatives of the
Inter-American Commission. Again
at the State’s request, a 30-day extension was granted on
November 18, 1998.
On March 3, 1999, another hearing was held at Commission
headquarters on the same matter. On April 16 of that year, the Chilean State requested another
extension to compile the information requested by the Commission.
On May 20, 1999, it was granted a 45-day extension.
On March 1, 2001, another hearing on this matter was held
at Commission headquarters. There, an agreement to advance the friendly settlement
procedure forward was signed.
In that agreement, the parties pledged to finalize a
friendly settlement of the matter within 90 days of the date of
the agreement, and to file a “preliminary joint report” with
the Commission during the latter’s 111th regular
session, to be held in Santiago, Chile, in April 2001.
On March 8, 2001, the Inter-American Commission received a
communication from the Director of Human Rights of the Ministry of
Foreign Affairs of Chile, wherein he requested an amendment to the
text of the aforementioned agreement to advance the friendly
settlement procedure. The
Commission consulted the petitioners that same day, who had no
objection to the change.
In Santiago, Chile, on April 5, 2001, the petitioners
delivered a report to the Commission wherein they expressed regret
at the fact that it was not possible to form the inter-ministerial
commission for a friendly settlement of the matter.
They did, however, reassert their willingness to conclude
the friendly settlement process via that avenue.
The State did not submit any information on the matter at
On May 31, 2001, the Chilean State submitted a friendly
settlement proposal that included clauses concerning land,
expunging of criminal records and symbolic reparation.
The Inter-American Commission forwarded the proposal to the
petitioners on June 1, 2001.
On August 14, 2001, the petitioners requested a hearing,
which the Commission granted in order to advance the friendly
settlement of the matter. However,
on October 9, 2001, before the hearing was held, the State sent
the Commission a communication wherein it stated that it had not
received any commentary from the petitioners concerning the
State’s friendly settlement proposal.
The State asserted that because of that, it would not send
its representatives to the hearing set for November 15, 2001,
unless it received a “clear signal” from the petitioners as to
the document in question. On
October 12, 2001, the Commission sent communications to both
parties requesting that they advise the Commission, before October
26 of that year, whether they were interested in pursuing the
friendly settlement procedure; if not, the hearing would be
canceled and the Commission would continue to process the case.
On October 26, 2001, the State replied, indicating its
interest in participating in the hearing and arriving at a
friendly settlement of the matter.
On that same day, the petitioners sent a note in which they
examined, point-by-point, the proposal the State submitted on May
31, 2001, and concluded that it was insufficient and unacceptable.
Because of that position, the Commission notified the
parties of its decision to end the friendly settlement phase, to
cancel the hearing convened for that purpose, and to continue to
process the case.
THE PARTIES’ POSITIONS ON ADMISSIBILITY
The petitioners’ position
The petitioners argue that the facts denounced establish
violations of human rights committed by agents of the State.
Specifically, they contend that in Case Nº 24,486, which
visiting Magistrate Antonio Castro Gutiérrez instituted on June
23, 1992 for land grabbing, unlawful association and other
charges, Aucan Huilcaman Paillama was charged with establishing an
unlawful association called Consejo
de Todas las Tierras [Council of All Lands], land grabbing and
the theft of two head of cattle. The
petitioners go on to list another 140 persons of Mapuche ancestry
who were accused of land grabbing, unlawful association, contempt,
theft and battery.
The petitioners allege that the judgement of first instance
delivered on March 11, 1993, and convicting 141 Mapuche, had a
number of “irremediable procedural flaws” that constitute
“serious violations of the rules of due process.”
For example, they allege that in item 17 of the operative
part of the judgment of first instance, which was confirmed by a
higher court, Mr. Juan Humberto Traipe Llancapan and Mr. Juan
Carlos García Catrimán are convicted of land grabbing even
though neither of them was charged with that crime; furthermore,
the record shows that they were acquitted.
Likewise, although Mr. Nelson R. Catripan Aucapan was
allegedly charged with land grabbing, his name does not appear in
the final judgment, leaving him in a kind of “judicial limbo.”
In the case of Ceferino O. Jhuenchiñur Nahuelpi, the
petitioners state that he was charged with stealing two head of
cattle; but again, the magistrate did not pronounce judgment in
his case in the ruling. As
a result, the alleged victim’s “procedural status vis-à-vis
this crime was left completely undefined, which had serious
consequences for his personal life, because an entry of cattle
rustling or animal theft appears in his record, although no court
has delivered any judgment on his case.”
They add that the court of first instance has not delivered
its judgment in the cases of Berner Alfonso Curin Llanquinao, Víctor
Manuel Reimar Cheuque, Ernesto Orosman Cayupán Huenchiumur and
Lorenzo del Carmen Reima Muñoz who were charged with aiding and
abetting the crime of cattle rustling or animal theft.
The petitioners allege that these procedural irregularities
are violations of the right to a fair trial and “reflect
blindness and carelessness in the courts’ conduct.” The petitioners go on to say the following:
The examination of the merits of the accusations made
in case Nº 24,486 of the Third Criminal Court of Temuco, simply
reveals a perverted administration of justice whereby Chile’s
aboriginal ethnic group, the Mapuche, is being denied justice.
Mr. Castro’s conduct is a painful demonstration of
bias and utter subordination to the regional political power,
which transformed the court into an echo chamber of the
political power that the governor at that time, Mr. Joaquín
Fernando Chuecas Muñoz, wielded to persecute and control.
The trial court denied the accused the right that is the
lynchpin of the right to a fair trial: the right to a hearing by
an impartial judge or tribunal. We are not referring here to the deposition of the accused;
instead, we are referring to the attitude that is born of the
sense of rectitude inherent in every person who administers
justice with honor: a willingness to hear the favorable and the
The allegations summarized here concern the alleged
violations of Article 8 of the American Convention.
The petitioners also contend that the State violated, to
the detriment of the victims in this case, the right protected
under Article 16 of the American Convention: in an utter abuse of
their authority, the organs of the administration of justice have
declared a Mapuche association to be unlawful, namely the Council
of All Lands, whose members are the ancestral authorities of that
people. They also
contend that this measure is a violation of the Mapuches’ right
to equal protection recognized in Article 24 of the American
Convention and other international conventions,
and also violates “the spirit, sense, and content of the new
Indigenous Law Nº 19,253.“
The State’s position
In its original communication, the State writes the
is important to begin by making it clear that the Constitutional
Government of Chile does not deny the facts upon which the
communication from the representatives of the Council of All Lands
is based. However, this statement cannot and should not be interpreted
to mean that the State is prohibited from using all legal means at
its disposal to restore public order when it is threatened or
In its response, the State underscores the fact that when
democracy was restored in Chile, the government initiatives
promoted lead to the creation of what is now the National
Commission for Indigenous Development [Comisión Nacional de Desarrollo Indígena]
(CONADI), established by Law 19,253 of October 5, 1993.
It goes on to say that “the democratic State of Chile has
demonstrated its intention to promote the development of the
indigenous peoples who live within its territory” through other
measures, over and above its enactment of the aforementioned law
and creation of CONADI.
As for the allegations of violations of the American
Convention, the State asserts that the alleged victims were
detained “on orders issued by the competent court authority and
carried out by the Chile’s National Police (Carabineros)” and
were then “brought before a competent, independent and impartial
tribunal.” It adds
errors that may have been committed during the proceedings in the
case, as might have happened with any case being heard by courts
composed of fallible human beings, cannot and should not be taken
out of the context in which they occurred. As the petitioner
points out, there were apparently errors in the identification of
some of those who stood trial; but this is far from a deliberate
plot to violate the rights or judicial guarantees, much less a
policy of discrimination against members of the Mapuche ethnic
group, as the communication portrays it.
The State’s position with respect to the alleged
violation of Article 16 of the American Convention is that “the
Chilean courts have not tried to deny the Mapuche their right to
associate among themselves or with other persons.”
On the contrary, the State maintains that its action in
this case is legitimate and conforms to the applicable rules,
inasmuch as “it is directed against certain actions taken by
members of the indigenous organization that are contrary to the
principles established in the Constitution, the American
Convention on Human Rights and the law.”
With regard to Article 24 of the Convention, the State
contends that its action “should not be interpreted as
discrimination against a particular ethnic group” and that its
intention “was not to outlaw the Council of All Lands, but
rather to penalize, through the courts, the commission of acts
that constitute crimes under Chile’s domestic law.”
It goes on to say that “the present Administration is
fully respectful of the independence of the judicial branch of
government and cannot invalidate or nullify its decisions, even
when those decisions are contrary to its interests or policies.”
Finally, the State requests that the Commission declare
that “the violation of human rights reported in the
communication that led to Case Nº 11.856 is not imputable to the
Chilean State, nor does the latter bear any responsibility
therein” and that it regard the creation of CONADI and the
enactment of the Indigenous Law as “measures adopted to ensure
respect for the petitioners’ human rights.”
Commission’s competence ratione
personae, ratione materiae, ratione temporis and ratione loci
28. Under Article
44 of the American Convention, the petitioners are authorized to
lodge complaints with the IACHR.
In the instant case, the alleged victims named in the
petition are individuals whose rights under the Convention Chile
undertook to respect and guarantee.
With regard to the State, the Inter-American Commission
notes that Chile has been a party to the American Convention since
August 21, 1990, the date on which the respective instrument of
ratification was deposited. The
Commission, therefore, is competent ratione
personae to examine the petition.
The Commission is also competent ratione
loci to take up the petition, inasmuch as it alleges
violations of rights protected under the American Convention, said
to have occurred within the territory of a State Party to that
The IACHR is also competent ratione
temporis since the obligation to respect and ensure the rights
protected by the American Convention was already binding upon the
State at the time the events alleged in the petition occurred.
Finally, the Commission is competent ratione
materiae, inasmuch as the petition denounces violations of
human rights protected under the American Convention.
for the admissibility of the petition
Exhaustion of remedies under domestic law
The petitioners allege that with the Supreme Court decision
of March 27, 1996, which denied the appeal filed by the
representatives of the alleged victims seeking reversal of the
lower court rulings, the remedies under Chilean domestic law were
exhausted. The State
did not contest that argument.
Consequently, the Commission considers that the requirement
stipulated in Article 46(1)(a) of the American Convention has been
Time period for submitting a petition
The petition was received at the Commission on September
23, 1996, which is within the time period stipulated in the
American Convention. Here
again, the State did not contest this point.
Therefore, the Inter-American Commission considers that the
requirement established in Article 46(1)(b) of the Convention has
Duplication of proceedings and res
There is nothing in the case file to suggest that the
present matter is pending in another international proceeding for
settlement or that it is substantially the same as one previously
decided by the Inter-American Commission.
Therefore, the Commission concludes that the exceptions
provided for in Article 46(1)(c) and 47(d) of the American
Convention do not apply.
Characterization of the facts alleged
The Inter-American Commission considers that the facts that
the petitions state tend to establish violations of the rights to
personal liberty, to due process, freedom of association, and to
Although not asserted by the petitioners, in application of
the principle iuria novit curia the Inter-American Commission also believes that
the facts described could also constitute violations of the rights
to compensation for miscarriages of justice and the right to
The Commission therefore considers that if true, the facts
alleged in the present case would constitute violations of the
rights guaranteed in Articles 7, 8, 10, 16, 24 and 25 of the
American Convention, in connection with the general obligation to
respect and ensure all rights enshrined in Article 1(1) of that
The Inter-American Commission concludes that it is
competent to take up the merits of this case and that the petition
is admissible under Articles 46 and 47 of the American Convention.
Based on the foregoing arguments of fact and of law, and
without prejudging the merits of the question,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare the present case admissible, inasmuch as it
concerns alleged violations of the rights protected under Articles
1(1), 7, 8, 10, 16, 24 and 25 of the American Convention.
To notify the parties of this decision.
To proceed with its analysis of the merits of the case,
To publish this decision and include it in the
Commission’s Annual Report to the OAS General Assembly.
and signed at the headquarters of the Inter-American Commission on
Human Rights, in the city of Washington, D.C., the 27th day of
February 2002. (Signed): Juan E. Méndez, President; Marta
Altolaguirre, First Vicepresident; Robert K. Goldman, Julio Prado
Vallejo, and Clare K. Roberts, Commission members.