The International Judicial Observation Mission was conducted from 9 - 12 April 2018. During this period, a delegate from the Observatory attended one of the hearings in the trial, which was suspended on April 9. The delegate also met with state authorities including the Head of the Regional Office of the National Institute of Human Rights (Oficina Regional del Instituto Nacional de Derechos Humanos), the Regional Ombudsman of the Araucanía Region (Defensor Regional de la Región de la Araucanía), and the Araucania Regional Prosecutor. The Observatory delegate also met with human rights defender Machi Francisca Linconao and lawyers representing the defendants.
This was the second Judicial Observation Mission. The same general observations that had been made in the report of the first mission are reiterated in the report for the second mission. These include the problems inherent to the Chilean criminal justice system per se, the application of the Antiterrorist Law against the Mapuche People, and intelligence/surveillance activities of the Mapuche. The phenomena observed indicate a pattern of criminalization of the Mapuche. The specifically repeated observations are:
i) There is no evidence to prove the existence of "an elaborate and coordinated plan" aimed at instilling fear in the farmers in the area, this excludes the "Mapuche cause” argument that is used frequently to criminalize the population through the application of unprecedent criminal law;
ii) There is no evidence that directly links any of the defendants to the facts;
iii) The incriminating evidence suffers from insurmountable defects;
iv) The only source of evidence that links the defendants and "from which all other incriminating evidence is derived" are the statements of José Peralino Huinca, a co-defendant turned informer, who appears to have had the intention of obtaining procedural benefits offered by the Office of the Prosecutor, who did in fact request a more lenient sentence, compared to the other defendants, for Peralino Huinca.
The report published today by the Observatory also contains recommendations aimed at ensuring that defenders of the rights of the Mapuche people can freely exercise their legitimate activities, and at guaranteeing the rights of the Mapuche people and of persons prosecuted under the Anti-Terrorism Law.
Context
This mission was the continuation of the judicial/trial observation mission that started in October 2017 and which was the subject of the first report, entitled “Trial with Serious Irregularities” Must End with Acquittal of Defender Machi Francisca Linconao and of Fellow Mapuche Community Members”. The report contained descriptions of the irregularities observed during the trial: 1) a great number of criminal prosecutions, sustained across time, 2) sweeping, ill-defined charges; and 3) abuse of pretrial detention, and 4) bail set at unusually high levels. All of this is intricately linked to a pattern of criminalization and to the construction of a distorted public image of the Mapuche people.
A few days after the first mission, on 14 November 2017, the Temuco Oral Proceedings Court (Tribunal de Juicio Oral de Temuco) acquitted the accused and declared them innocent. But on 29 December 2017, the Court of Appeals of Temuco reversed the lower court’s decision and ordered new oral proceedings.
The events that led to the trial occurred on 4 January 2013, when Mr. Werner Luchsinger and Ms. Vivianne Mackay died in an arson attack on their house on the Granja Lumahue Farm, located on occupied traditional indigenous territory. Eleven members of the Mapuche community were charged under the Antiterrorist Law, the argument given court was that the purpose was “to compel farmers in the region to abandon their land".
The Observatory for the Protection of Human Rights Defenders (the Observatory) is a program created in 1997 by FIDH and OMCT to intervene in, prevent or remedy concrete situations of repression against human rights defenders. The FIDH and the OMCT are both member organisations of ProtectDefenders.eu, the European Union Mechanism for Human Rights Defenders coordinated by representatives of international civil society.