On Wednesday, December 21st, the Temuco Court of Appeals decided a case in which they ordered the Chilean police force to refrain from using tear gas in the homes of Mapuche communities near Ercilla. The court’s order also stated that tear gas should not be used when women, children or elderly people are present. The case was brought by the Mapuche community of Wente Winkul Mapu, after their homes were raided by officers firing tear gas in November of this year. The court’s decision cited several international law instruments, including ILO Convention 169.
The case before the Temuco Court of Appeals arose out of incidents that took place on November 2-4, 2011 in the comuna of Ercilla. For months, Ercilla has been home to conflicts, protests and police raids — some of which have resulted in weapons fire. During the events of November 2-4, which occurred in several different Mapuche communities, multiple Mapuche individuals and police officers were injured. There were immediate reports that tear gas had been misused and that weapons had been fired for the purpose of intimidation. In response to these events, the Mapuche community of Wente Winkul Mapu went to court seeking judicial protection.
The appellate court heard the case and, in a split decision, agreed that the use of tear gas was “illegal and arbitrary” and ordered the Carabineros (Chile’s police force) to refrain from its use in Mapuche yards and homes, and that they should also avoid its use when women, children and elderly people are in the area. In making its decision, the court stated that the police actions violated ILO Convention 169, the Convention on the Rights of the Child, and the principles of the Chilean constitution.
Daniel Melinao, a spokesperson for the community explained that they went to court because there had been “much abuse by the police force” which included “clear violations of the rights of children and Mapuche living within the community.” In response to the court’s ruling, Mijael Carbone, a spokesperson for the Mapuche Territorial Alliance applauded the court’s “very correct” decision, but also warned that the court’s order doesn’t necessarily mean the police will refrain from using tear gas — a reference to the police use of tear gas during student protests even after a high governmental official told the police not to do so.
Although the court’s decision was favorable to the Mapuche communities, it was not unanimous. Judge Troncoso was against the decision and stated that it would hinder law enforcement in a dangerous part of the country, and also noted that the Chilean state has an obligation to protect private property. Although not officially announced yet, the Chilean government is expected to appeal the decision.