CAT/C/68/D/882/2018
trying to maintain their traditional way of life are involved in violent clashes with the
Chilean security apparatus; however, it states that the complainant has been living in
Switzerland since 1996 and that she “could therefore have applied for asylum much earlier
had she really needed the protection of our country”. In addition, while the Federal Office
for Migration acknowledges that, in the past, some defendants have been wrongly
convicted by military courts hearing cases involving civilians, it is of the view that
proceedings are now conducted publicly, allowing the media to draw attention to
procedural irregularities. The Federal Office for Migration also notes that Chile is, in
principle, able to afford protection to victims, observing that, in the case of the fire at the
complainant’s family home, the judge decided not to bring charges given the lack of
evidence and the absence of any provision in the Chilean legal system for a case to be
brought against a person or persons unknown. Lastly, the Federal Office for Migration finds
that there is no concrete evidence that the complainant might suffer the same fate as other
tortured Mapuche persons and that there is therefore no well-founded fear of persecution
justifying asylum.
2.6
On 20 September 2010, the complainant, on her own behalf and that of her niece,
appealed the decision of the Federal Office for Migration; however, on 21 July 2011, the
appeal filed on behalf of the complainant’s niece was removed from the court’s list, her
niece having returned to Chile to rejoin her mother, who had been released from prison. On
6 February 2013 the complainant informed the Swiss authorities that her activities as
Ambassador of the Mapuche Permanent Mission to the United Nations, in the context of
which she works to expose the conduct of the Chilean State, could put her at risk in the
event of her deportation.
2.7
On 11 June 2013, the Federal Administrative Court dismissed the complainant’s
appeal, noting that, apart from a few isolated cases of police violence or miscarriages of
military justice in cases involving Mapuche activists, there was no systematic repression
and the complainant had not alleged any personal threat.
2.8
On 7 October 2013, the complainant submitted a request for reconsideration to the
Federal Office for Migration on the grounds of worsening repression in Araucanía. She
attached numerous supporting documents from university professors, NGOs and the InterAmerican Commission on Human Rights, which had brought an action before the InterAmerican Court of Human Rights in respect of criminal proceedings against seven
Mapuche leaders, alleging that they constituted systematic repression of the Mapuche
political movement.
2.9
On several occasions during the consideration of this final appeal, the complainant
informed the State Secretariat for Migration of episodes of violence and ill-treatment
suffered by members of her family in retaliation for having asserted their fundamental
rights. On 17 September 2015, for example, the complainant noted that on 18 February
2015 her sister had been seriously injured in a suspicious car accident, in respect of which a
complaint had been filed, with the description of an individual who had threatened her
some months earlier;3 that on 6 July 2015 her nephew had been assaulted by the police; and
that on 16 July 2015 he had been hit on the head with a glass bottle by a private individual
and had for a few minutes been unconscious. 4 On 4 November 2015, the complainant also
informed the State Secretariat for Migration that her sister had been arrested and beaten by
Carabineros upon her return from Washington D.C., where, on 19 October 2015, at the
156th session of the Inter-American Commission on Human Rights, she had reported the
constant persecution of her family. As a result, the Commission requested the adoption of
precautionary measures (No. 46-14 of 26 October 2015) in respect of the complainant’s
sister and six other members of her family, in the light of the serious and urgent risk to their
personal integrity; in its resolution it requested Chile to take the necessary measures to
preserve their life and personal integrity. 5 On 6 June 2016, the complainant, attaching the
complaint filed by her sister, also informed the State party’s authorities that armed men had
wrecked her sister’s and her nephew’s homes in the Juan Paillalef community. Lastly, on
28 February 2017, the complainant stated that the community had suffered further violence
3
4
5
GE.20-00012
Unique complaint number (RUC) 1500177665-4.
The complainant had provided the criminal complaint, photographs of the assault and a press release.
Inter-American Commission on Human Rights, resolution 39/2015 of 26 October 2015, precautionary
measures No. 46/14.
3