CAT/C/68/D/882/2018
criticism of the Chilean State, like much Mapuche activism, may be understood as a threat
to national security and thus as “terrorism”. Lastly, the Committee notes the complainant’s
argument that she was not covered by the precautionary measures requested by the InterAmerican Commission on Human Rights simply because she was not in Chile at the time.
8.7
The Committee notes the State party’s arguments that there is no well-founded fear
of persecution justifying asylum, and no personal risk, since the measures taken by the
Chilean authorities against members of her family as a result of their activism have nothing
to do with the complainant, and that the complainant makes no mention of any acts of
torture or ill-treatment to which she herself has been subjected. The Committee also notes
the State party’s argument that, while the complainant’s rights advocacy work has given her
some visibility on the international stage, she does not demonstrate how her political or
other peaceful activities as Ambassador of the Mapuche Permanent Mission to the United
Nations have made her a target of the Chilean authorities. In addition, the Committee notes
that the State party considers the complainant to be far less politically active than her sister
or other family members, whose activism and political activities led to a request for
precautionary measures by the Inter-American Commission on Human Rights.
8.8
The Committee is nonetheless of the view that the complainant’s ethnic background,
the persecution of Mapuche leaders in Araucanía – a fact acknowledged by the State party
itself –, the acts of persecution and torture suffered by several members of her family and
her conspicuous protest activities at the international level 40 are sufficient, taken together, to
establish that she would personally run a foreseeable and real risk of being subjected to
torture or other cruel, inhuman or degrading treatment or punishment if she were deported
to Chile.
8.9
In view of the complainant’s arguments in paragraph 3.7, the Committee also
considers it necessary to point out that States parties should refrain from deporting
individuals to another State where there are substantial grounds for believing that they
would be in danger of being subjected to torture or other ill-treatment at the hands of nonState entities.41 Moreover, ill-treatment inflicted by private individuals that Chile is unable
to stop, acquiesces to or allows by failing to intervene is conduct for which the State, by
providing its tacit consent, bears responsibility. 42 Impunity for such acts leads to the
recurrence of violence. The Committee has made clear, as stated in paragraph 18 of general
comment No. 2 (2007) on the implementation of article 2, that where State authorities know
or have reasonable grounds to believe that acts of torture or ill-treatment are being
committed by non-State officials or private actors and they fail to exercise due diligence to
prevent, investigate and prosecute such non-State officials or private actors, the State bears
responsibility and its officials should be considered as authors, complicit or otherwise
responsible for consenting or acquiescing to such impermissible acts. Since the failure of
the State to exercise due diligence to intervene to stop, sanction and provide remedies to
victims of torture facilitates and enables non-State actors to commit acts impermissible
under the Convention with impunity, the State’s indifference or inaction constitutes a form
of encouragement and/or de facto permission.
8.10 Given the complainant’s personal and family situation, it is reasonable to assume
that deporting her to Chile would put her at risk of torture or other cruel, inhuman or
degrading treatment or punishment. The Committee notes that the principle of the benefit of
the doubt, as a preventive measure against irreparable harm, must also be taken into
account in adopting decisions on individual communications, 43 given that the spirit of the
Convention is to prevent torture, not to redress it once it has occurred. 44 The Committee
also reiterates that the deportation of a person or a victim of torture to an area of a State
where the person would not be exposed to torture, unlike in other areas of the same State, is
40
41
42
43
44
GE.20-00012
Eftekhary v. Norway, para. 7.7; Jahani v. Switzerland, para. 9.6; and Faragollah et al. v. Switzerland,
para. 9.6.
General comment No. 4, para. 30; Elmi v. Australia (CAT/C/22/D/120/1998), paras. 6.8 and 6.9; and
M.K.M. v. Australia (CAT/C/60/D/681/2015), para. 8.9.
Dzemajl et al. v. Yugoslavia (CAT/C/29/D/161/2000), para. 9.2.
General comment No. 4, para. 51.
Alan v. Switzerland (CAT/C/16/D/21/1995), para. 11.5.
13