Case Summary and Outcome

The Inter-American Court of Human Rights held that Chile violated the rights to freedom of expression, freedom of assembly, freedom of association, the principle of equality before the law, and the right to self-determination of Indigenous peoples, to the detriment of 140 Mapuche individuals who were criminally prosecuted following their participation in collective protests and territorial claims. The case stemmed from the criminalization of peaceful demonstrations carried out in 1992, during the 500th anniversary of the colonization of the Americas—when members of the Council of All Lands symbolically occupied land to assert historical claims. In response, Chilean authorities brought charges of unlawful association and trespassing—among other offenses—and imposed prison sentences, fines, and restrictions on the dissemination of information. The petitioners—members of the Mapuche community—argued that the protests were legitimate, peaceful expressions of identity and historical demands and that the criminal proceedings were discriminatory, based on ethnic stereotypes, and aimed at punishing dissent. The State partially acknowledged its international responsibility, admitting that the use of criminal law was disproportionate and failed to consider the context of the social protests (in defense of territorial rights). The Court found that the convictions were based on discriminatory stereotypes and failed to take into account the legitimacy of the protest. It emphasized that expressions protected under international law—such as the use of Indigenous flags, political statements, and the creation of Indigenous media—were wrongfully penalized. The Court further noted that the application of criminal law had a chilling effect, limiting the future exercise of fundamental rights. Accordingly, the Court ordered the annulment of the convictions, the expungement of criminal records, monetary reparations, and structural measures to ensure non-repetition—including legal reforms and training for judicial officials.

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Facts

The significance of case must be understood within the historical context of the “structural discrimination to which the Mapuche people of Chile have been subjected.” [para. 45] The Mapuche, made up of diverse territorial identities (Pewenche, Wenteche, Nagche, Lafkenche, and Williche), have historically faced difficulties accessing natural resources and in the recognition of their rights over ancestral lands.

In this context, in 1990, the Mapuche organization Aukiñ Wallmapu Ngulam, also known as the Council of All Lands (Consejo de Todas las Tierras), was created. It brings together traditional authorities from the lonko, werken, machi, and weupife identities, intending to assert the existence of the Mapuche people as a “nation” with its own identity, language, and territory within Chile.

In 1992, during the commemoration of the 500th anniversary of the arrival of Christopher Columbus to the Americas, claims by members of the Mapuche people to the Chilean government intensified, demanding recognition of their ancestral land rights, cultural identity, and political autonomy. The Mapuche people also promoted symbolic and political acts of resistance, such as the creation of the Wallmapu Nor Ngulamtuwum or “First Mapuche Court” and the adoption of a Mapuche flag “as an element of expression of their identity as a people.” [para. 52]

Furthermore, between June 16 and 20, 1992, members of the Council of All Lands occupied various properties located in the La Araucanía region of Chile. In response, the Chilean security forces, known as Carabineros, “evicted the occupiers and detained several individuals.” [para. 55] Following complaints filed by the Mayor of the La Araucanía region, multiple criminal proceedings against the demonstrators were initiated before courts in different cities, including Temuco, Carahue, Nueva Imperial, Lautaro, Traiguén, and Panguipulli.

In his various complaints, the Mayor of La Araucanía argued that the occupation of rural lands was carried out by members of the Mapuche people linked to the Council of All Lands. He also stated that these actions included the erection of huts on private property, the display of banners with messages about the recovery of ancestral Mapuche lands, the cutting of trees, and the raising of the Mapuche flag. Additionally, he affirmed that the Chilean police had to end the occupation. On June 23, 1992, the Supreme Court of Chile appointed a judge from the Court of Appeals of Temuco as a “special investigating judge” with exclusive jurisdiction to hear all the cases initiated by the Mayor of La Araucanía.

On June 24, 1992, the investigating judge consolidated all criminal proceedings brought against the Mapuche community regarding the events of June 16 and 20, 1992. On June 26, 1992, the judge prohibited the dissemination, by any means, of information related to the trial and the activities of the Council of All Lands to safeguard the success of the investigation.

On the same day, the judge summoned Mr. Huilcamán Paillama to testify in the trial as representative or werken of the Council of All Lands. During the hearing, Mr. Huilcamán Paillama stated that the Council of All Lands was promoting a peaceful plan for the recovery of lands that were usurped from the Mapuche People. The following day, June 27, the judge ordered a raid on the Council’s headquarters. During that operation, authorities seized flags, publications, and posters belonging to the Mapuche community.

On June 30, the judge ordered the criminal prosecution of Mr. Paillama for the crimes of unlawful association and usurpation. He also denied his release from prison. Subsequently, on December 4, 1992, the judge charged another 140 members of the Mapuche community with the crimes of unlawful association, usurpation, theft, contempt, concealment, and property damage. Regarding the unlawful association charge (regulated by articles 292 and 293 of the Chilean Criminal Code), the investigating judge claimed that the Council of All Lands was an organization that promoted land recovery through violent means, disregarding state authority in Chile and encouraging civil disobedience. He specified that such actions included the creation of a “Mapuche Court”, a clandestine newspaper, and a flag. Regarding the crime of usurpation (regulated by articles 457, 458, and 462 of the Criminal Code), the judge claimed that the aforementioned 140 individuals participated, on June 16 and 20, 1992, in the occupation of land and property

On January 29, 1993, the defense attorney for the members of the Mapuche community who were charged submitted a brief before the investigating judge requesting their acquittal and exemption from criminal liability. They argued that the demonstrations were peaceful protests protected by the right to freedom of expression.

However, on March 11, 1993, the investigating judge issued a guilty verdict against the 140 individuals, imposing various penalties in light of the occupation of land in La Araucanía. The majority were convicted of the crime of usurpation and received fines—ranging from six to eleven minimum wages. Four individuals were convicted of unlawful association and sentenced to 61 days in prison, based on the alleged criminal actions of the Council of All Lands. The judge stated that the organization rejected the legitimacy of the Chilean State and incited actions that disrupted public order. Additionally, there were convictions for contempt (541 days of imprisonment), theft (ranging from 61 to 541 days of imprisonment), and concealment (41 days of imprisonment).

Among his arguments, the investigating judge stated that the Council of All Lands had “a monthly publication named Aukiñ, in the Mapuche language. This newspaper did not comply with the provisions of Law No. 16.643 on advertising abuses. Moreover, the bylines under the articles were from fictitious or false persons. They also had an illegal radio station called Aukiñ, which also failed to meet the applicable regulations according to the Ministry of Transport and Telecommunications.” [para. 78] He also justified the conviction for unlawful association by stating that the Council promoted a systematic process of land recovery, violating the property rights of other Chilean citizens and acting as an autonomous entity outside the law. The convicted members of the Mapuche community appealed the decision. However, on September 6, 1994, the Court of Appeals of Temuco substantially upheld the lower court’s guilty verdict, although it reduced some of the imposed sentences. Regarding the usurpation charges, the appeals court held that, although the occupations were not conducted for profit, the actions still constituted a criminal offense and emphasized that the occupiers had to be forcibly removed by the police.

On September 23, 1994, the defense attorney for the convicted Mapuche community members filed a cassation appeal against the Court of Appeals of Temuco’s ruling. However, on March 19, 1996, the Supreme Court of Chile rejected the appeal, arguing it was filed after the 15-day legal deadline.

On March 22, 1996, the defense filed an annulment motion, but it was also rejected by the Supreme Court.

On September 23, 1996, the convicted members of the Mapuche community (the petitioners) filed a complaint before the Inter-American Commission on Human Rights. They argued that Chile violated their rights to freedom of expression and peaceful assembly.

On January 27, 2022, the Inter-American Commission on Human Rights submitted the case to the Inter-American Court of Human Rights (IACtHR). The Commission stated that Chile violated multiple human rights, such as due process, freedom of thought and expression, freedom of association, and equality and non-discrimination. The Commission emphasized that the criminal convictions “were based on generic references to actions that were protected by the rights to freedom of expression—unduly and discriminatorily criminalizing the petitioners.” [para. 1]

On May 7, 2022, the petitioners submitted their brief of claims and arguments, supporting the Commission’s position.

For its part, on August 1, 2022, Chile responded to the Commission and the petitioners, partially acknowledging its international responsibility for violating the rights to a fair trial, freedom of expression, freedom of association, and equality before the law. Chile admitted that “discriminatory acts occurred within the criminal proceedings.” [para. 17] Furthermore, Chile recognized that “the use of criminal law by the State, without considering the legitimate exercise of protests in the described context, constituted an infringement of the rights recognized in Articles 13 and 16” of the American Convention on Human Rights (ACHR). [para. 22] It also admitted that the convictions for the offense of unlawful association, and the criminalization of the Council of All Lands, were disproportionate and that the information ban imposed on the proceedings would not withstand a proportionality review today. Consequently, Chile requested the Court to declare its partial responsibility for violating the rights related to freedom of expression, freedom of association, equality, and a fair trial.

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Decision Overview

Due to the complexity of the case, the Inter-American Court of Human Rights had to examine the possible violation of various rights protected under the American Convention on Human Rights. This case analysis will focus on the issues related to freedom of expression and the right of assembly. The main question the Court had to analyze in this regard was whether the criminal proceedings carried out against the petitioners—members of the Mapuche Indigenous People—in the context of protests undertaken by the organization Council of All Lands (Consejo de Todas las Tierras), between 1989 and 1992, under the justification of the vindication of their rights, violated the rights to freedom of expression and the right of assembly, as enshrined in the American Convention on Human Rights.

The petitioners argued that the criminal proceedings against them, and the subsequent convictions, were discriminatory and maintained that the actions of the Council of All Lands were legitimate and reflected a historical violation of rights. They explained that the criminal convictions disregarded fundamental rights by “knowingly prosecuting an ethnic organization, thereby violating their freedom of association, thought, and expression.” [para. 229] The petitioners emphasized that the land occupation was a temporary and symbolic peaceful expression of protest made by an entire Indigenous community who was claiming legitimate historical rights.

The Inter-American Commission held that the charges and verdicts included assessments that showed a clear discriminatory bias against the victims’ ethnic origin. To it, the legitimate expressions of the Council of All Lands—including the criticism of authorities and symbolic manifestations concerning Mapuche history— had been unjustly criminalized. Furthermore, the Commission argued that the convictions for unlawful association and usurpation were based on conducts protected by the right to freedom of expression.

For its part, Chile partially acknowledged its international responsibility, admitting that during the criminal proceedings there had been discriminatory actions and a disproportionate application of criminal law. It accepted that the context of protests had not been considered, which affected the right to freedom of expression protected by Article 13 of the American Convention. Moreover, it recognized that the criminalization of the Council of All Lands, and the information ban on the proceedings, would not be compatible with current proportionality standards. Therefore, it requested the Court to declare its partial responsibility for violating rights linked to freedom of expression.

The Inter-American Court of Human Rights began its analysis by acknowledging Chile’s partial recognition of international responsibility and, after analyzing the facts, concluded that the State had recognized several violations—including the use of discriminatory statements in the criminal indictments, the prohibition on disseminating information about the case, the failure to provide an interpreter for a defendant who did not speak Spanish, the conviction of individuals who had not been formally charged, and the criminalization of protests related to land claims by the Mapuche People.

The Court also noted that the State admitted it violated the rights to equality and non-discrimination, to an impartial judge, to legal certainty, to an adequate defense, to the publicity of the proceedings, and to “freedom of expression and freedom of association, to the detriment of the alleged victims, due to the disproportionate application of the criminal offenses of usurpation and unlawful association.” [para. 28]

Nevertheless, the Court held that despite Chile’s partial recognition of responsibility, it was necessary to issue a judgment that established the facts and clarified the degree to which the rights were affected. It stated that it was not enough to formally accept the State’s acknowledgment. Thus, the IACtHR analyzed Chile’s international responsibility in light of the seriousness of the violations and the circumstances of the case.

Subsequently, the Court examined whether the criminal proceedings violated the petitioners’ rights to equality and non-discrimination, freedom of thought and expression, and freedom of association. The Court reaffirmed that these rights were especially critical for historically marginalized groups.

The IACtHR explained that the criminal proceedings and convictions were based on a discriminatory and arbitrary exercise of State authority. According to it, local authorities acted based on ethnic stereotypes that portrayed the Council of All Lands as illegitimate and dangerous. These prejudices were evident in the language used by the investigating judge, who considered that various legitimate expressions of identity and dissent—such as the use of Indigenous flags, critical statements against government officials, and the existence of a Mapuche-run newspaper and radio station—as evidence of criminal behavior. For the Court, the investigating judge’s opinion—that it was “illegitimate, and even illegal, for members of an Indigenous people, by virtue of being such, to organize themselves to proclaim a distinct identity and claim their inherent rights” [para. 239]—exemplified the discriminatory lens through which the case was handled.

The Court then held that the right to freedom of expression under Article 13 of the ACHR includes not only the right to seek, receive, and impart information and ideas of all kinds but also the right to receive ideas disseminated by others. Citing Advisory Opinion OC-5/85 and the case of Viteri v. Ecuador, the IACtHR also highlighted the dual dimension of freedom of expression (individual and social) and reiterated that it constitutes “a cornerstone in the very existence of a democratic society.” [para. 245]

The Court underscored that the criminalization of peaceful protests and expressions violated the victims’ rights under Article 13 of the Convention. On this point, it said that “the classification of slogans and expressions of the Council of All Lands as indicators of illegal conduct, and the classification of the organization as criminal based on its objectives and actions, constituted a violation of Article 13 of the ACHR.” [para. 247] Moreover, the Court argued that the application of criminal law against the organization amounted to a disproportionate restriction on freedom of association—which violated Article 16 of the ACHR, as it penalized legitimate advocacy aimed at defending Indigenous identity and land rights.

The IACtHR also noted that the State itself acknowledged its failure to recognize the context of legitimate protests. In this regard, the Court stressed that the State also accepted that the use of criminal law, without taking into account the legitimate exercise of the right to freedom of expression, constituted a violation of Article 13 of the Convention.

Next, the Court examined whether the proceedings and criminal convictions violated the right of assembly, which protects the right to petition the authorities and to protest peacefully under the Inter-American System. On this matter, the Court acknowledged the intrinsic connection between freedom of expression, the right of assembly, and freedom of association, and emphasized that social protest is a legitimate and protected form of collective expression in a democratic society. Citing the case of Tavares Pereira et al. v. Brazil and General Comment No. 37 of the UN Human Rights Committee, the Court reiterated that peaceful protests “serve as a conduit for the expression of collective demands and grievances, which can influence public decision-making.” [para. 251]

The IACtHR also highlighted that the protests led by the Council of All Lands were part of a broader process of reclaiming Indigenous identity and historical rights. In this regard, the actions undertaken by the Council—including the creation of a Mapuche tribunal and the symbolic occupation of ancestral lands—were forms of political and cultural collective expression directly linked to the right to self-determination.

The Court considered that the protests, although carried out on private property, were peaceful, temporary, and non-violent. It held that “the nature of the location does not alter the peaceful character of the protests nor negate their expressive content.” [para. 262] To further this point, the IACtHR underscored that, in a democratic society, there must be a degree of tolerance toward disruptions caused by the exercise of fundamental rights.

Moreover, the Court held that instead of responding to the protests through dialogue, or other appropriate legal mechanisms, the State resorted to criminal law in a disproportionate and discriminatory manner. Under this rationale, the IACtHR found that Chile’s actions constituted a form of protest criminalization. It also held that this response not only violated the right to freedom of expression but also had a chilling effect, limiting the victims’ future exercise of their rights.

For all the reasons outlined above, the Inter-American Court of Human Rights concluded that the State of Chile violated articles 13 (freedom of thought and expression), 15 (right of assembly), 16 (freedom of association), and 24 (equality before the law) of the ACHR, to the detriment of the petitioners—members of the Mapuche community in Chile.

As reparations, the Court ordered Chile to adopt all the necessary measures to annul the criminal convictions issued against the victims, including the expungement of all related criminal and police records. The IACtHR also ordered the reimbursement of paid fines and the deletion of all associated records.

As a measure of satisfaction, the Court ordered the State to hold a public act acknowledging its international responsibility, with the participation of senior officials and representatives of the Council of All Lands, ensuring interpretation of the Mapuche language and full respect for Mapuche cultural traditions. The IACtHR also ordered the publication and dissemination of the summary and full text of the judgment in Spanish and in the Mapuche language through official media outlets, government websites, social media, and national radio stations.

Finally, it also ordered the State to strengthen its training programs for prosecutors and judges to prevent the discriminatory use of criminal law based on ethnic origin and to ensure that the prosecution of conducts protected by the American Convention—such as peaceful protest and Indigenous expression—is not repeated.

For non-pecuniary damages, the Court awarded USD 20,000 to each victim. Finally, the Court ordered the State to pay USD 20,000 in legal costs and expenses.

Concurring and dissenting votes

Justice Humberto Antonio Sierra Porto issued a partially dissenting opinion. Although he agreed that the victims’ freedom of expression had been violated, he disagreed with the majority’s approach regarding the right to protest. In his view, the judgment went beyond the scope of the American Convention when it considered that the temporary occupation of private rural lands deserved protection. He warned that this could be wrongly interpreted in future cases as a “blanket authorization” for protests in private spaces, and stressed that the use of criminal law is not always prohibited in such contexts, as long as due process is respected.

Justices Rodrigo Mudrovitsch and Eduardo Ferrer Mac-Gregor Poisot presented a concurring vote. They expressed concern that expressions—such as criticism of public officials, the creation of symbols, or engaging with international actors—were used as incriminating evidence during criminal trials. They emphasized that the misuse of expression-related conducts to justify criminal charges reflected a discriminatory and authoritarian stance incompatible with a democratic society. For these Justices, this case confirms that acts of public expression, especially those tied to Indigenous identity and resistance, must enjoy robust protection under Article 13 of the American Convention.

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