View Adopted: 2018.08.28
The author is an Argentinian national, a member of the mapuche indigenous community, and a Lonko, a political and philosophical traditional authority. Due to a lack of medical personnel that follow traditional mapuche medicine in Argentina, the author went to Chile. During a medical session, the Chilean gendarmerie entered and detained the author along with others) for having provoked a fire, owning firearms and munitions as well as for entering Chile illegally. He was detained for some time and while awaiting trial in house arrest, he returned to Argentina through a traditional mapuche faith walk. In the meantime, the mache doctor was found guilty for the charges above described and the others absolved. An extradition request was filed by Chile after a tortured informant disclosed the author’s position.
The author claimed that if the State party were to extradite him, he would risk being subjected to torture. Further, his right not to be subjected to arbitrary detention was violated as the State parties did not consider alternative forms of detention that, as an indigenous person, would fit his cultural role better and not take away from his community. The author also claims that the extradition process is illegal as it has been based on information reached by torture. Finally, he claims he was deprived of his community’s right to enjoy their indigenous culture as, being a leader figure, his absence had grave consequences on his community. Hence, he claimed the State party violated his rights under articles 7, 9, 14, and 27 of the Covenant.
The Committee found that the justice process in Argentina was thorough, all facts and evidence were considered, and hence there was no reason to establish that the State party acted arbitrarily in their consideration of the evidence or interpretation of national legislation. Hence, the author’s claims under articles 7, 9, and 14 are inadmissible. Further, the alleged violation of article 27 was devoid of a sufficient argumentation and also deemed inadmissible as the author only referred to collective cultural damage of his community without explaining what the consequences of his absence were in actuality.
Partial Dissent by Helene Tigroudja
By producing an inadmissibility decision, the Committee did not address strongly enough the legal consequences of Argentina’s non-compliance to interim measures granted by the Committee. It is imperative that interim measures are followed as these produce international responsibility and otherwise it would constitute a breach of Article 1 of the Optional Protocol.
Author: Laura Cestaro