Presentation of the Report
BRUNO BARRANDA FERRAN, Minister of Social Development, said that earlier this month, following the Committee’s recommendation, the Ministry of Foreign Affairs had organized a seminar earlier to share with the civil society the preparatory work for the report. Civil society representatives were also given the opportunity to share their views, voice criticism and raise concerns with respect to matters included in the report. Concerning the institutional structure put in place by Chile to prevent racial discrimination, in 2012 an anti-discrimination law was passed which constituted a fundamental step towards building a more tolerant, inclusive and fair society. The law established the obligation of all State organs to elaborate and implement policies aimed at securing the full enjoyment of human rights by everyone without discrimination, defined arbitrary discrimination, and established a judicial and executive framework to deal with violations of the right to non-discrimination. An autonomous National Human Rights Institute was created in 2010 in conformity with the Paris Principles, which had made a significant contribution to the promotion and protection of human rights.
Chile, as a multicultural country, paid special attention to public policies related to indigenous peoples, and special programmes had been developed to encourage the use of all languages, traditions and customs. Initiatives promoting the rights of the Mapuche people included the creation of the First Mapuche Chamber of Commerce and the National Mapuche Encounter. In order to facilitate the focus on indigenous peoples, Chile had complemented the Millennium Development Goals with new indicators. Chile remained fully committed to the principles of participation and consultation provided for by International Labour Organization Convention 169, and had organized consultations for direct dialogue between the authorities and indigenous peoples.
Culture, identity and education represented a major priority area for Chile, especially since indigenous languages had come close to disappearing. Chile had strengthened and restructured its Intercultural Bilingual Education Plan, through which indigenous languages tuition was provided in more than 500 schools. Moreover, over 200,000 scholarships had been awarded to indigenous youth between 2009 and 2012 to enable them to attend secondary school and university. Concerning intercultural health, several programmes had been developed to promote ancestral medicine and treatments through intercultural care centres containing special sections for indigenous medicine. In the last three years almost 40,000 hectares of land had been purchased and transferred to indigenous peoples. The Mapuche Legal Defence Office had been expanded to include the Indigenous Penal Assistance in order to ensure that the customs, languages and traditions of indigenous peoples were fully understood and respected.
Chile remained committed to maintaining public order and security but always with respect towards fundamental human rights. The country’s anti-terrorism law had been reformed on four occasions since the return of democracy to the country, and its latest version had taken into account the new system of criminal justice and the international requirements regarding terrorism. The law made provisions similar to the framework decisions of the European Union on terrorism. The invocation of the Anti-Terrorist Act was separate from its application, which was limited. The law was not used as a systematic and discriminatory practice against the Mapuche people. The Anti-Terrorist Act may be invoked in criminal trials, but its application remained the sovereign right of the court, depending on the gravity of the acts tried and their consequences, and on the means employed in committing crimes which harmed individuals. For example, out of the 42 cases involving terrorist crimes in 2009, only eight cases had arisen from events occurring in Araucania. It was regrettable that the recent statement of the Special Rapporteur on human rights and counter-terrorism did not reflect the complete reality on terrorism and human rights nor did it mention the restrictive manner in which Chile had invoked the Anti-Terrorist Act, the full independence enjoyed by the judiciary, and the efforts made by the Government to improve the institutional proceedings relating to human rights during the past few years.
Chile was currently experiencing the most important migratory influx of the last 40 years, mainly from other Latin American and Caribbean countries, and had been following a clear policy to facilitate the integration of immigrants, including persons of African descent, who enjoyed the same rights and access to social security benefits, healthcare, work and education as all other citizens. Chile’s immigration policy was based on the implementation of human rights and the full participation of immigrants in local communities and in the development of the country. The National Congress was in the process of modernizing Chile’s Migration and Foreign Affairs Law, which had been in force for at least 40 years. Furthermore, in 2010 a Law on the Protection of Refugees had been adopted to protect the rights of refugees and in 2011 a new law was introduced to deal with trafficking in persons, focusing in particular on vulnerable groups, including migrants.
Mr. Barranda Ferran concluded by reiterating Chile’s commitment to eliminating all kinds of discrimination, welcoming migrants, and recognizing the rights of indigenous peoples not only in theory but also in practice. In that respect, Chile appreciated the guidance of the Committee, which facilitated changes to public policies and normative processes and contributed to promoting respect, equality, multiculturalism and non-discrimination.
Questions by Experts
REGIS DE GOUTTES, Country Rapporteur for Chile, said that Chile had been very punctual in the submission of its reports, which contained detailed information. He asked which non-governmental organizations had taken part in the consultation process and what were the results of that consultation? There were two issues concerning Chile that fell within the scope of the work of the Committee: the situation of indigenous peoples and other minorities, particularly persons of African descent, and the rights of migrants. Several complaints and reports had been received concerning various violations of human rights against members of the Mapuche community and against persons of African descent. Complaints had also been received about Mapuche territories being used as rubbish dumps or being polluted by power plants.
The Country Rapporteur asked what had become of the draft National Human Rights Plan which was referred to during Chile’s Universal Periodic Review in 2009? The Committee was pleased to see that the National Human Rights Institute had now entered into force, and asked about its mandate, composition, financing and membership, and how were its members appointed? Did it have capacity to receive individual complaints?
Despite positive steps to combat discrimination, reports had been received about shortcomings in governmental consultations with the representatives of indigenous peoples. Moreover, hostilities and tensions had been reported between government representatives and the representatives of indigenous peoples who had protested during the consultation process. Complaints had been received that indigenous peoples had not been consulted about mining and fishery activities carried out on their territory without their consent and about the lack of support provided to them in terms of arbitrators appointed to mediate. There was reportedly a shortage of training of mediators and arbitrators, and complaints had been received about members of minority groups experiencing obstacles in their access to justice.
Concerning ethnic minorities, the Country Rapporteur said that in 2009 numerous recommendations had been made to Chile which related in particular to the law identifying groups of indigenous peoples and minority groups in the country, the Government policies on indigenous peoples and the Mapuche community, and institutional programmes for minority groups. What was the effective result of initiatives taken since then to integrate indigenous peoples in the public and political life of the country? What had Chile done to ensure the effective participation of indigenous peoples, especially indigenous women, at all levels of political life, including the national Parliament?
The reform of the anti-terrorist law had been mentioned by the Chilean delegation, which also said that the courts applied the law impartially and in a fair manner. However, it all depended on the definition of “terrorism” and its interpretation by the courts. Additional information was needed on the revision and implementation of that law, especially in the aftermath of the visit to Chile of the Special Rapporteur on human rights and counter-terrorism, who had been asked by the Human Rights Council to investigate the matter. What was Chile doing to ensure that no excessive force was used by police officers and to protect the rights of the Mapuche in that regard?
Furthermore, reports had been received about immigrants being subjected to discrimination and about migrant children in an irregular situation born in Chile and running the risk of becoming stateless persons. Also a considerable number of refugees were unable to leave the country. What legal provisions were there to deal with refugees and to protect the rights of vulnerable migrants? The Country Rapporteur also asked what measures Chile was taking to fight hate speech and to improve interethnic awareness, especially among civil servants and law enforcement officers.
A Committee Expert queried the use by the delegation of several different terms referring to indigenous peoples, which, he pointed out, was not in conformity with the practice recommended by the Committee. In addition to the nine ethnicities recognized by Chile, there were at least two more ethnic minority groups mentioned. Had those ethnic groups been officially recognized by Chile? Was there a difference between the groups identified as “ethnicities”, “communities” and “minorities”? Had Chile investigated complaints made about the behaviour of the police forces (“carabineros”) towards indigenous peoples?
Another Expert asked whether Chilean law contained the concepts of direct and indirect discrimination and whether harassment could be regarded as a form of discrimination under the current law. Could the delegation provide more information on the legal framework in place to deal with hate speech, especially in the media? Was there in Chile an operative code of media and journalistic ethics in terms of how media officers should refer to indigenous peoples and minorities? When reporting crimes, was it customary in Chile to refer to the ethnicity of the persons involved prior to the legal proceedings?
The situation of persons of African descent was an issue raised by a Committee Expert, who asked for Chile’s official point of view on the matter. He suggested that in its next report Chile should address complaints about refugees being subjected to discrimination and outline steps it was taking to tackle the problem.
An Expert asked whether all international treaties automatically had the status of law in the Chilean system and whether they were directly applicable.
Concerning indigenous languages, it was positive to see that Chile was sensitive to the matter, but reports had been received that efforts made to encourage the teaching and learning of indigenous languages at school were insufficient. Community radio stations were a good way of promoting the use of indigenous languages, but many complaints had been received about citizens unable to receive funding and other support in order to set up local community radio stations. Was anything being done to provide indigenous communities with local television channels as a means of protecting indigenous languages? Scholarships granted to students from indigenous communities were a positive step towards ensuring equality in education. However, reports had been received that scholarships only covered about one fifth of the costs involved in pursuing a degree programme in a higher education institution. Could the delegation provide more information on the matter?
An Expert expressed concern over a lack of specific targets, indicators and expected outcomes relating to procedures and legislation currently being established by Chile. He asked how the Government could be sure that citizens of African descent and migrants had adequate access to healthcare, education and social services, what Chile was doing to assess the effectiveness of the new law on trafficking in persons and what specific mechanisms were being set up to protect women migrants.
The methodology employed in order to compile the country report was an issue raised by another Expert. More specifically, the lack of data and figures in the report made it difficult to measure real progress made by Chile in recent years. How was it possible that the foreign community was earning more than the non-foreign community? Was Chile planning on taking measures to ensure that Chileans had an equally high income as foreign nationals living in the country? Was there cohesion and structural balance between pro- and post-colonization populations in Chile?
Another Expert asked whether the anti-terrorism law pre- or post-dated the Pinochet era. If the latter were the case, then that would be an issue of major concern given that Mapuche people were sometimes equated with terrorists in the media, which constituted a very serious case of hate speech. The Expert said that concerning extreme violence meted out by police officers carrying out raids in indigenous areas, was there more force employed in such operations than in operations carried out in non-indigenous areas? The Expert also asked about the perception of gypsies in Chilean society.
An Expert said that the provision of internet access to indigenous peoples should be a priority, because it could contribute significantly to their empowerment. More should be done to prevent double discrimination in the cases of indigenous women. Regarding anti-terrorism laws, those should be applied as an exception rather than as the norm and always with great care. Special measures were needed to ensure that indigenous languages flourished in Chile. Access to education was a fundamental right of indigenous peoples and measures should be taken to facilitate access to education, particularly higher education.
Another Expert asked about the distinction between arbitrary and non-arbitrary discrimination and requested that the delegation provide examples of cases of non-arbitrary discrimination and explain how those were dealt with. The anti-terrorism law had been amended but practice should reflect the law. Land issues had not been resolved and more efforts were needed in that regard. The consent of indigenous peoples should be actively sought when making decisions about their territory.
Chile should realign its definition of discrimination with the definition contained in the Convention, said another Expert. What was the extent of participation of indigenous peoples and persons of African origin in Chilean politics? Complaints had been received from indigenous peoples’ groups about environmental threats to their ancestral land, including the dumping of waste in waters, which were essential for the livelihoods of indigenous peoples. Encouraging economic activity while protecting at the same time the rights of indigenous peoples was a considerable challenge. Nevertheless, it was crucial to identify sustainable practices in order to prevent the harmful effects of various economic activities on the livelihoods of indigenous peoples.
Statement by a representative of the National Human Rights Institute
The National Human Rights Institute was financed by the State, much like other State institutions, and consisted of eleven board members. Two of those members were appointed by the President of the Republic, two by the Senate, two by the Chamber of Deputies, four by civil society organizations, and one member represented the various national Faculties of Law. An expert in indigenous affairs always sat on the board.
Response by the Delegation
The delegation said that two extensive documents with statistics had been circulated in the room to provide further background information on the situation in Chile in 2011. Concerning the recent visit of the United Nations Special Rapporteur on human rights and counter-terrorism to Chile, the delegation said it had taken note of the concerns expressed by the Committee on the application of anti-terrorism laws but regretted that the Special Rapporteur’s report did not fully reflect the progress which Chile had made in recent years.
Regarding the implementation of the anti-discrimination law, its objective was to establish a legal mechanism to ensure the prevalence of the word of law in cases of arbitrary conduct. The number of cases brought under this law had increased by ten per cent in the past couple of years. Wherever necessary, sanctions in the form of $4,000 fines had been imposed for acts of arbitrary discrimination. A number of cases were still ongoing and no information could be provided on those cases.
According to the law, arbitrary discrimination occurred when exclusion was founded on race, status, religion or belief, sexual orientation, affiliation with a trade union, age, personal appearance and disability, among other things. With regard to the distinction made between arbitrary and non-arbitrary discrimination at the constitutional level, the delegation said that distinguishing one thing from another was an act of freedom. Arbitrary discrimination, which was punishable by law, was contrary to the principles of justice, ran counter to the law and had no foundation or justification whatsoever.
The delegation also said that there was a Press Law in place, which punished hate speech and incitement to hatred by imposing hefty fines. Civil society representatives had been involved in the process of drafting a new bill that was due for public hearing this week. One of the main ways of avoiding discrimination was to ensure that officials were properly trained, and since 2004 several training events had been organized, including specific training courses for police officers about how to approach Mapuche issues. An extensive training programme was currently being set up for police officers and other officials dealing with foreigners.
The delegation also said that a new bill was being prepared, it would propose establishment of a body which would incorporate human rights and mainstream them into the activities and programmes of all State bodies. In addition, a National Action Plan was being developed in that respect, in consultation with civil society and various State body representatives, that would have measurable objectives and benchmarks to assess progress in the area of human rights.
Since 2000, judges intervened from the very first stages of the investigation into alleged acts of terrorism and were involved in the process to ensure that proceedings were fair. The independence of the judiciary was especially important to guarantee the legality of the proceedings and to ensure that the rights of those in custody were upheld before, during and after the trial. Safeguarding mechanisms had been developed to guarantee that the rights of the defendant were upheld and also to protect the witnesses testifying in the trial. The delegation said that acts of terrorism were defined in the Constitution and that anti-terrorism laws were necessary to protect the citizen body, but those laws were not manipulated to target specific groups or individuals. The Anti-Terrorism Act did not criminalize persons or communities but specific crimes committed and the people held responsible for those crimes. Chile’s anti-terrorist law contained objective criteria similar or identical to those found in other Latin American constitutions and to the anti-terrorism provisions in European Union legislation. Since the return of democracy to Chile fewer and fewer cases were being brought under the anti-terrorism law in the Mapuche areas, but the United Nations Special Rapporteur had not referred to the progress achieved in Chile with regard to legal provisions.
The provision of human rights education was a permanent feature of many State activities, and several partnerships had been formed between Chile and international organizations such as the United Nations Children’s Fund and the International Committee of the Red Cross. The Government had also been working closely with the National Centre for Human Rights.
Concerning the police force, the delegation said that there were Mapuche police officers and stressed that the carabineros did not carry out raids or enter premises or facilities without the necessary authorization from the relevant courts. The Department of Human Rights was currently providing training to the Araucania Executive Board and was developing a number of differentiated protocols for the treatment of the Mapuche communities. Further, it had established ethnic patrols with knowledge and awareness of the Mapuche communities. Officials were trained in the use of non-violent methods and were strongly encouraged to favour mediation and dialogue with the local authorities and communities in cases where disputes had arisen. The tribunals also had provisions for compliance with the judicial order, and a number of female officers were serving in the police force to provide gender balance.
Concerning non-violent protests, the delegation clarified that the Carabineros did not require Mapuche leaders to ask for permission to hold such protests but, rather, provided direct authorization to them based on an agreement previously reached with the Mapuche community. The Department of Human Rights conducted visits to Mapuche areas and reviewed police actions that may have caused damage to the local communities. Moreover, a Special Coordinator had been assigned to areas that were home to indigenous communities.
Concerning immigration and women’s access to the labour market, the law guaranteed and protected the employment rights of all migrants at all times regardless of their situation or migration status. A draft immigration law had recently gone through the legislative review process and was currently being discussed by the Congress. Its aim was to modernize the country’s immigration legislation in order to reflect more accurately Chile’s new migration reality. Numerous provisions would be made by this new law to ensure compliance to protect the rights not only of migrant workers themselves but also of their dependents, paying special attention to family ties. Visa requirements had been removed for migrants who had a valid employment contract in Chile, and when their contract ended a temporary visa was issued that the migrant status of foreign workers was no longer tied to the terminated contract.
A National Migration Policy had been put in place and its provisions would be made public, so that all Chilean citizens and residents would be made aware of it. Changes had been made to the legal proceedings concerning the deportation of illegal migrants and new regulation had been introduced capping the detention period for foreigners awaiting deportation. Provisions were also made for the children of irregular migrants and for unaccompanied minors. The existing laws had been amended to allow for the assisted return of those minors to their country of origin and to ensure that appropriate assistance and protection were provided to them.
Concerning persons of African descent, the delegation said that there were approximately 3,000 Afro-descendants in the country, but detailed information was still being gathered on them. Chile was introducing specific policies to protect that population and the areas where they resided. To that end, in 2010 an Afro-descendant Committee was created to deal with issues affecting those persons. Other initiatives included the organization of special support seminars and awareness-raising campaigns. A draft bill was created to recognize the Afro-descendant population, to ensure that related statistics were incorporated into national censuses, and to consult Afro-descendants on matters concerning them.
The delegation said that meetings had been held between the civil society and the Government in preparation of the country report. Working in different groups, at least 60 representatives of non-governmental organizations had participated in the consultation process. Those included representatives of indigenous peoples, leaders of municipal entities concerned about issues of discrimination, Mapuche representatives, representatives of groups focusing on traditional medicine, and persons with disabilities.
Programmes promoting indigenous languages were in place at all levels of education, and school training in indigenous languages would be expanded to include eighth-grade pupils. Chile viewed teaching children their indigenous languages as an important way of strengthening indigenous communities. Efforts to protect indigenous peoples also included programmes of environmental risk assessment, which would stop projects previously devised without the consultation of indigenous peoples. In addition to those, numerous others sets of regulations had been developed to ensure that support to indigenous peoples was ongoing, always promoting respect for their rights and interests.
Concerning the comments on the country’s education system, the delegation said that education and the preservation of languages were issues which were taken very seriously by Chile. The Government had been firmly committed to ensuring that indigenous peoples understood and spoke indigenous languages. Further work remained to be done in that regard, but the Easter Island Immersion Programme was a good example of a recent initiative. Easter Island children received schooling in all subject areas on a bilingual basis, and the programme had been a success. Therefore, there were plans to apply similar programmes to all other areas of Chile, always taking into account and respecting fully the local traditions and specificities of those areas and any relevant recommendations previously made to the Government.
The overall pedagogical approach was decided at the level of central administration and the languages of indigenous peoples were given special attention so that they would be spoken by young persons too, not only by adults, so they would not become obsolete. Various mechanisms were used to promote language learning, such as combining language teaching with history. The aim was not only to preserve but also to strengthen indigenous languages in the next few years. Indigenous language strengthening was no longer about the recovery of ancestral lands, but, rather, it was part of a comprehensive development programme.
The creation of Indigenous Language Academies, which was led by the government authorities and focused on all of Chile’s indigenous languages, was another important development. There were also television and internet campaigns with a budget of $50,000 that focused on transmitting important messages in indigenous languages.
BRUNO BARRANDA FERRAN, Minister of Social Development, in concluding remarks, thanked the Committee for their questions and comments and also thanked non-governmental organization representatives for their participation and shadow reports. Chile was committed to ensuring that the necessary constitutional regulations were in place and that it fully complied with its international commitments. The country had signed the Declaration on the Rights of Indigenous Peoples, was paying close attention to the recommendations made by the Human Rights Council and various Treaty Bodies, and was actively involved in the Human Right Council’s Universal Periodic Review process. The promotion of multiculturalism and non-discrimination remained at the top of Chile’s agenda, and the country was working to bring about a real cultural shift. The delegation looked forward to receiving the Committee’s constructive recommendations and hoped that those would reflect the progress made not only by the Government but also by the country of Chile as a whole. Chile remained fully committed to continuing its close cooperation with the Committee.
REGIS DE GOUTTES, Country Rapporteur for Chile, said that the interactive dialogue held with the delegation had been high quality and fruitful. Chile’s periodic reports were also of a high quality and the delegation had provided precise and detailed answers to questions posed by Committee Members. He also praised Chile for the regularity with which it had submitted its reports. Legislative changes and progress made since the submission of Chile’s last report, including the anti-discrimination law, the law on indigenous peoples and the establishment of a National Human Rights Institute, were commendable. The Committee looked forward to receiving further information on the draft bills that were currently being debated, including the bill recognizing persons of African descent and the draft law on migrants.
The consultation process with indigenous peoples should continue to improve in accordance with the provisions of the relevant United Nations declarations, and every effort should be made to resolve the conflict between the Government and the Mapuche people about issues concerning their ancestral land and damage made to it by multinational corporations. Tackling discrimination against indigenous communities, people of African descent and women required further attention by the Government. The access of women to education, justice and employment should be improved, and the opening and running of indigenous community local radio stations should be encouraged and facilitated. Additional statistics should be provided on the number of discrimination cases brought to court, their outcome, and any sentences given to those convicted of acts of discrimination. The Committee also looked forward to receiving information on Chile’s follow-up on the recommendations recently submitted by the United Nations Special Rapporteur on human rights and counter-terrorism to the Human Rights Council.
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