The recent acts of political repression against and the illegitimate detention of members of the José Gineo community in the Rofue area of the Likako sector of the Commune of Temuco has left about ten women injured, including children. In addition, the use of torture against Mapuche community members, most especially our brother José Millalen Paillal, from the We Choyum community of the Commune of Pitrufquen, through illegal detention, lack of medical attention, and subsequently torture in the prison of the Pitrufquen police station, show once again that the repressive scenario of the use of torture by the state is a practice that is being repeated with ever increasing frequency of late.

For those of us who have been a part if the Mapuche movement and those who have followed the happenings concerning the repression of the Chilean state towards members of our Nation, the allegations of the ex chief Pino do not constitute new information, but rather come to confirm that which the Mapuche communities have denounced repeatedly. The difference is that now an ex member of the institution is doing the condemning. Today the happenings are getting worse with a new case of torture towards Jose Millalen Paillal.

The denunciation made by ex chief Pino referred to the acts of torture to which seven members of the communities of the Truf Truf locality were subject at the hands of the police staff of the Third police station of Padre de las Casas, on which occasion amongst other victims of ‘illegitimate detention’ and ‘torture’ were our brothers Alberto and Ruperto Coliñir Painemel who denounced … that they were subject to systematic torture sessions throughout most of their detention, including blows in various parts of their bodies and carrying out the so-called ‘dry submarine’ (introducing the head of the detainee in a bag to induce his/her suffocation) and the use of electricity on their bodies. With the aim of obtaining information and confession of their participation in acts of land recovery undertaken by the organisation Aylla Rewe of Truf Truf throughout the last year.

The Universal Declaration of Human Rights and the UN Convention against Torture and Other Cruel, Inhuman or Degrading Punishment define torture as: “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”

Meanwhile, Article 2 of the Inter-American Convention to Prevent and Punish Torture notes that there must be the intention of inflicting physical or mental pain or suffering is inflicted on a person for purposes of criminal investigation, as a means of intimidation, as personal punishment, as a preventive measure, as a penalty, or for any other purpose adding that “Torture shall also be understood to be the use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical or mental capacities”.

From the previous paragraphs it is clear that the concept of torture as illicit or the violation of human rights is defined explicitly in each one of [the conventions], and by virtue of the signing of the latter, le State is bound to ensure that no one is subject to methods of torture inside its jurisdiction. These UN and Inter-American Conventions against Torture and Other Cruel, Inhuman or Degrading Punishment are understood to be automatically incorporated into domestic law by virtue of Article 5, Clause 2 of the Constitution* which compels the State erga omnes (therefore all) to respect human rights without distinction of sex, race, religion or political choice. Therefore, these international treaties have the force of law and must be applied in Chilean courts when public officers or other persons holding public office commit these illicit acts at their own instigation, with their consent or with their acquiescence.

However, as it has been said, this is far from being a reality in the Mapuche case. Since 1996 many members of different Mapuche communities have denounced illegitimate detentions and torture by the political as well as administrative authorities of the Chilean State, which have remained in the most complete impunity, where there are no penalised officials and all of this in a “democratic” state which has acted in full contempt of the norms of Public International Law and its own international obligations to which it has voluntarily subscribed.

Ever since its formation, first as a colony and then as a State, Chile has not been characterised as a country of liberties and respect towards Human Rights, at least it has not been this way for those belonging to the Mapuche Nation.

In the recent history of the Republic of Chile, Chilean society in general felt in their own flesh the gloved hands of Dictator Pinochet whose tyranny lasted 17 years, with all types of violations of Human Rights, 17 years of aberrations and one long dark night that fell on the country leaving thousands of people marked by the sequel of torture, cruel, inhuman and degrading acts and the forced disappearance of people which were usual at that time.

On the other hand the Mapuche Nation has resisted and chewed on the sour taste of outrage and injustice for 500 years, during which 122 years of domination, denial and violation of our fundamental rights as a People/Nation by the Chilean State.

The Return of democracy in Chile meant the return of the basic liberties and respect of Human Rights for Chileans. In fact, by way of the Retting Report, the President Patricio Alwyn Azocar tried to shed light on the truth and “seek justice as far as possible”. Today, without a doubt, after three reconciliatory governments, there have been major steps forward regarding the latter and it is probable that with the government of Lagos, the healing, with or without justice, of this social wound is intended, especially concerning all those that were victims of forced disappearance.

One cannot say the same regarding torture in Chile, and it is known through the annual Human Rights reports* that torture remains a method used frequently by police organisms towards vulnerable sectors such as youth, sexual minorities and especially members of the Mapuche communities.

The issue of the violation of Human Rights and the denial of Indigenous Rights arises most violently in the Mapuche territory and in that measure it increases the consistency of the Mapuche struggle for self determination and territorial control. As previously mentioned, for quite some time different organisations from the Mapuche political spectrum and members of the communities have been denouncing the use of torture both by police officers and by civil servants.

As the territorial conflict and fight for autonomy heightens, so increases progressively the use of torture by police officers against the Mapuche, be it with the aim of criminal investigation, as a method of intimidation, as a personal punishment, as a preventative measure, as a penalty or to any other end.

In 2000, an annual report on the violations of Mapuche Human Rights by the Coordinating body of the Communities in Conflict of Arauco-Malleco denounced once again the consistent use of torture and humiliating treatment against the communities by the police and private guards contracted by the Forestales (the transnational companies linked to the usurpation of lands and irreparable environmental destruction in Mapuche territory). It also exposed cases wherein police officers had used torture methods such as “the dry Submarine” method, which is to systematically asphyxiate the victim by placing a nylon bag over their head, and “the Submarine” method which consists in submerging the victim in a water recipient until they suffocate, intimidation using firearms, especially police officer guns, shots during the night over the communities, beatings with firearm butts, the “telephone” method which consists of hitting both ears simultaneously using the palms of both hands and the conscious application of electrical current to extremities.

The situations took place at the time in communities such as Temelemu, Didáiko, Pantano in the commune of Traiguen, Temucuicui, Requiem Pillán, Lemun, Loloco and Huañaco Millao in the commune of Ercilla, the Collipulli communities of Colihuica Tori and Antonio Paillacoi, and communities in the commune of Galvarino.

There were also denunciations of illegitimate detentions, such as the one survived in July 1999 by Juana Calfunao Integrante of the Council of All Lands, whereby the civil police of the second police station of Temuco detained and brutally beat her in the bus terminal of Temuco, and resulting in her miscarrying the son she was expecting.

Other cases of illegitimate detentions denoted by the Konapewman Organisation are continuously increasing.

January 2001: The police injure a 12 year old Mapuche girl, Daniela Ñancupil with 7 bullets shot at pointblank in the middle of an operation in Temuco, region IX;

February 2001: Ambaham Santi Calbullanca loses an eye as the result of a bullet shot by the police in the vicinity of a public school.

August 2002: two detentions and threats made to Daniela Ñancupil, the girl that was shot in January the year before by policemen. Her solicitor, Jaime Madriaga, suffered an intentional incendiary attack on his truck.

Illegitimate detentions resulting in death, 7 November 2002: 17 year old Edmundo Alex Lemun Saavedra receives the impact of a bullet in the forehead in his cerebral cavity, in a confused accident between the police and Mapuche communities that were mobilising in Fundo Santa Elisa in the proximity of Angol. Whilst the police deny having used bullets, which was subsequently refuted by the ballistics expert, the family maintain that he was riddled with bullets.

However not only the police and investigative officials have used torture as a method of repression against the Mapuche people, it has also been used by the administrative authority in the case of the mayor of Lumaco, region IX. In August 1998, the latter, Ronaldo Flores Fernández brutally aggressed with punches and kicks the social worker Bernardita Calfuqueo LL. with the aim of terrorising her and impeding her from bringing the country’s first accusation for racial discrimination to the courts of law.

The common denominator of all these denouncements of torture against the Mapuche is that none of them have resulted in a favourable pronunciation by the courts of law, not even the case of the death of Edmundo Lemun Saavedra, who as a result of police shots, died following days of agony in a clinic in Temuco. Nearly a year after these events, no police officer was punished, despite the participation of the police in the events leading to his death having been credited.

Chile ratified the Convention against torture in 1987. As a result it has engaged before the international community to avoid and punish any form of torture and other cruel, inhuman or degrading treatments or punishments. However, what scope does the ratification of such international instruments have? In other words, what is the obligation of the Chilean state on this matter?

1 – the duty to undertake legislative, administrative and judiciary or other effective measures to impede acts of torture in the entire territory of its jurisdiction.

2 – in no case can the use of methods of torture be justified even in a state of war or threat of war, internal political instability or any other public emergency.

According to Article 3 of the UN Convention, no state party to the Convention can proceed to the expulsion, devolution or extradition of a person to another state when substantiated reasons are found concerning the danger of their being subject to torture in the state to which it is demanding their extradition or devolution.

In addition, la International Convention against Torture recommends to the states that all acts of torture should constitute a crime under penal law, which is the case for the modifications of the penal code in its articles 150 and 150 bis which punishes by law the “mental or physical torments or illegitimate detentions marshalled or lying within its obligation” undertaken by public employees and those participating in these crimes who are not qualified as public employees.

All state party must detain the person that has committed the crime of torture or other measures, in order to assure their presence in a criminal procedure or extradition.

Since torture is a crime against humanity, the torturer is extraditable in the state where he is found if it is a party to the convention, and if extradition does not occur, he will be judged according to just and due process.

In accordance with Article 12 of the Convention, the state must ensure that within its jurisdiction and when have been found reasonable motives to believe that acts of torture were committed, the authorities proceed to a rapid and impartial investigation.

By virtue of Article 13 of the Convention against torture, the state must ensure that the persons who allege having been subject to torture have the right to take action against the torturer, and in addition it must take measures to ensure that whoever presents the action and the testimonies are protected against bad treatment or intimidation. In the same way, it must ensure that whoever was victim of torture has the right to reparation and just and adequate compensation, including measures to ensure physical and moral rehabilitation. In the case of death from torture, the heirs have the right to compensation as reparatory measures, without halting the criminal punishment of the torturer. Nor can they obtain any declarations made subject to torture and that the latter be considered as a mode of proof in a judgement.

The case of torture and other human rights violations and violations of the rights of the Mapuche is not one which seems to have an immediate end, nor is it a theme that worries the Chilean authorities. It appears that liberty and equality of dignity and rights proclaimed in article 1 of the Constitution, equality before the law consecrated in article 19 (2) of the Constitution, and equal protection in the exercise of rights, all contemplated in the Political Constitution of the Chilean State in its article no.3 are not destined to the Mapuche. At least that is how it operates in practice since the national courts make arbitrary distinctions in this matter and it seems that we have citizens of a first and a second category, since many of our community leaders have been subject to torture and no one says anything, no one utters a word on events of such gravity, not even the Courts, which by Constitutional mandate are called upon to impart justice. If in this “democracy” a Chilean political leader were tortured, probably it would constitute a national scandal.

Torture has indeed been a method condemnable in all forms that dominant groups have used historically against dominated sectors, groups and peoples that seek in a given moment to start a process of liberation. Its end could be different, as a method of investigation, in order to obtain a confession, information from a third party, be it as a punishment, as intimidation, to erase the personality or with any other end.

Chile says to have recovered democracy, yet unfortunately this democracy has not been extended to the Mapuche People who continue to be victims of violations of Human Rights, for this it is necessary to remain observant to all the occurrences of human rights and Mapuche rights abuse and denounce them before the conscience of the world as well as the courts of justice be they national and international. An adequate extension of the operation of International Human Rights Law alongside International Indigenous Rights Law (emerging at this stage) would contribute to the necessary sensitisation in the judicial sectors in the majority societies and in our people to understand that nothing justifies the violation of human rights and, further, the use of aberrant methods such as torture which only conceals itself in the minds of perverse beings completely alienated from a civilised and just world.

It is a certain fact that reaching the year 2010, the year of the bicentenary of the Republic of Chile, will not necessarily mean more democracy or more justice whilst our Mapuche Nation remains oppressed and denied by a colonialist state which does not recognise or guarantee our fundamental rights as a Nation before the existing State.

Bibliography:

§      Convención contra la Tortura y Otros Tratos o Penas Crueles Inhumanos y Degradante ONU.

§      Constitución Política de Chile, edición Oficial actualizada, Editorial Jurídica de Chile.

§      Derecho Internacional Público, Mario Benadava , año 1987.

§      Convención de Viena, sobre el derecho de los Tratados

§      Código Penal, Editorial Jurídica de Chile, edición actualizada 2002

§      Código Procesal Penal, Editorial Jurídica de Chile, edición actualizada año 2002.

§      Tribunales Chilenos Y Derecho Internacional de Derechos Humanos, Jhon A. Detzner, Comisión Chilena de Derechos Humanos, Editorial tiempo Nuevo, Programa de Derechos Humanos, Universidad Academia de Humanismo Cristiano.

§      Cátedra de Derechos Humanos, Sra. Verónica Reyna, abogada defensora de los DD.HH , Directora del Fasic y académica de la Universidad Academia de Humanismo Cristiano, Santiago, 2003.

§      Ética y Derechos Humanos, Jurista José Zalaquett, Universidad de Chile, año 2003, Miembro de la comisión Interamericana de Derechos Humanos

§      Pagina Informativa Mapuche www.mapuexpress.net

§      Pagina Informativa Mapuche, Colectivo Lientur

§      Informe anual de Derechos Humanos de la Coordinadora de Comunidades en conflicto Arauco MAlleco, año 1988, 2000. 2003