On January 5, 2012, the Chilean Supreme Court upheld a ruling in favor of a Mapuche youth from Temucuicui that originated in the Court of Appeals in Temuco. The case arose following an altercation between police forces and Mapuche community members in Temucuicui on December 8th, during which the police detained Felipe Marillán Morales, a 12-year-old minor. It is the second case in recent weeks to address the legality of police operations in the Araucanía region.
Following Morales’ detention, the youth filed an appeal for legal protection (recurso de amparo) against the Chilean police force (carabineros) alleging that some 300 officers entered into Temucuicui in various vehicles as well as a helicopter and began firing. During the police action, Morales was detained, allegedly without cause, and taken to the Comisaría de Collipulli where he was held for several hours until being released in the early hours of December 9th. Morales claimed that at the time of his detention he was playing soccer. The claims also highlighted the militarization of the area around Temucuicui and the negative effect of the police presence on Mapuche communities. The case alleged a violation of the youth’s Consitutional right to personal freedom and security as well as rights protected under ILO Convention 169.
In response, the Prefectura de Carabineros Malleco asserted that on the day in question officers were responding to an attack carried out by 15 masked Mapuche individuals against the Fundo Montenegro. Following the attack, the officers pursued the Mapuche individuals using riot gear. They alleged that Morales was detained while attempting to cut electrical cables that run to the Fundo Montenegro. The carabineros furthermore claim that only 11 officers participated in the operation that day.
The Court of Appeals in Temuco held that, although the carabineros were acting with legal authorization, the detention of the minor Morales was in violation of the International Convention on the Rights of the Child and threatened the personal liberty and security of Morales. In addition, although the Court acknowledged the police action in the Temucuicui area is at least formally authorized, it questioned the rationality of the well-known police practices in that zone and cautioned that continued use of such practices runs the risk of violating both the Constitution and Convention 169.
The Court of Appeals closed by admonishing the carabineros to carry out their operations with strict adherence to legal and constitutional standards, abstaining from threatening the fundamental rights of the community members and with a particular consideration for minors.
The Supreme Court upheld the decision of the Court of Appeals although two justices voted to reverse the decision.