CHAPTER 1: LEGAL AND ADMINISTRATIVE RESTRICTIONS 1

Latin American State Responses to Social Protest LATIN AMERICAN STATE RESPONSES TO SOCIAL PROTEST 3 CENTRO DE ESTUDIOS LEGALES Y SOCIALES

Centro de Estudios Legales y Sociales - CELS Content coordination and editing: Camila Barretto Maia, Ximena Tordini and Luciana Pol, with input and contributions from Paula Litvachky, Manuel Tufró and Gabriela Kletzel. Design: Mariana Migueles Photo editing: Jazmín Tesone Translation into English: Sarah Smith

This publication is the result of the following organizations’ collective efforts: Justiça Global, . Corporación Humanas, . Observatorio Ciudadano, Chile. CAJAR- Colectivo de Abogados José Álvarez Restrepo, . Centro Prodh- Centro de Derechos Humanos Miguel Agustín Pro Juárez, . Fundar- Centro de Análisis e Investigación, Mexico. Frente por la Libertad de expresión y la protesta social, Mexico. Codehupy- Coordinadora Derechos Humanos Paraguay, Paraguay. APRODEH- Asociación Pro Derechos Humanos, . Provea- Programa Venezolano de Educación- Acción en Derechos Humanos, . CELS- Centro de Estudios Legales y Sociales, .

We thank each of these organizations’ teams for their work.

Financed by Open Society Foundations.

Asociación Civil Centro de Estudios Legales y Sociales Latin American State Responses to Social Protest. 1a ed. Ciudad Autónoma de : Centro de Estudios Legales y Sociales CELS, 2016. 82 p. ; 27 x 21 cm. ISBN 978-987-29080-8-9 1. Movimiento de Protesta. CDD 303.6

Centro de Estudios Legales y Sociales Piedras 547, 1er piso C1070AAK Buenos Aires, Argentina. Tel/fax: +54 11 4334-4200 e-mail: [email protected] www.cels.org.ar contents

08 Introduction 10 1. Legal and administrative restrictions 22 2. Repression and the use of force 34 3. Criminalization of protest 44 4. Impunity of police violence 54 Transforming state responses Designation of places where protests cannot be held Inadequate education and training of security forces Distinction between ARGENTINA “peaceful and violent” or “legitimate and illegitimate” protests to justify repression

Penalization of actions and BRAZIL conduct common to protests

Lack of opportunities for dialogue and political channeling of confl icts

Attacks on freedom of expression CHILE and journalistic work

Criminalization of those who STATE RESPONSES participate in protests and COLOMBIA TO SOCIAL PROTEST demonstrations

Intervention by the Armed Forces to MEXICO repress or contain demonstrations Surveillance and illegal PARAGUAY intelligence practices Repression and the abusive use of force, causing death and injury Impunity for human rights violations Lack of investigation of abuses committed by security forces and of political responsibilities VENEZUELA

Passage of anti-terrorism Indiscriminate use of that are applied to “less-lethal” weapons social confl icts Legal and administrative restrictions LATIN AMERICAN STATE RESPONSES TO SOCIAL PROTEST introduction

In Mexico City on November 20, 2014, tens of thousands goods and services and decent labor conditions; to In many countries, social protests – in particular those This publication is the result of the stood by the families of the 43 students from Ayotzinapa express confl icts tied to environmental policy and politi- that involve blocking traffi c – have caused strong negative following organizations’ collective efforts: who were forcibly disappeared. When night fell, cal demands; to seek justice and redress for human reactions. In these cases, the magnitude and repetition Justiça Global, Brazil. numerous police contingents arrived. The streetlights rights violations; or to demand better living standards in of these confl icts are not seen as emanating from the were out. The subway entrances were closed. There light of problems that continue to go unresolved, such problems affecting the social groups leading the protests, Corporación Humanas, Chile. was no way to leave the Plaza de la Constitución without as . but rather as an excessive use of the right to protest in Observatorio Ciudadano, Chile. facing security forces. public. From this perspective, the state is called upon to CAJAR- Colectivo de Abogados José Social protest is a fundamental right for defending other limit and control demonstrations. In their most extreme Álvarez Restrepo, Colombia. “What you doing here, assholes? Go home!” a policeman rights. Many of today’s demands for rights and liberties versions, these conceptions encourage violent state yelled. Other offi cers armed with batons surrounded the are the consequence of past struggles and triumphs intervention that treats social protest as an issue of safety Centro Prodh- Centro de Derechos protesters, forming a wall of shields and beating them. achieved in the streets. Nevertheless, Latin American and public order, and not a matter of rights. Humanos Miguel Agustín Pro Juárez, The repression left dozens injured and under arrest. states continue to repeat practices to restrict protests, Mexico. State responses that aim to restrict protest through stop them or criminalize them. This publication Chilean students demanding free, quality public regulations, criminalization and the use of force have a Fundar- Centro de Análisis e documents and analyzes these state responses in eight education. Farming strikes in Colombia. Mexican negative effect on democratic life. A respectful stance Investigación, Mexico. countries of the region through collaborative work done teachers against the education reform. Labor protests on human rights standards requires that the state by ten human rights organizations in Argentina, Brazil, Frente por la Libertad de expresión y la in Argentina. Demonstrations against mining exploita- establish regulations to guarantee the right to protest. Chile, Colombia, Mexico, Paraguay, Peru and Venezuela. protesta social, Mexico. tions in Peru and for land access in Paraguay. Opposition It is therefore important that the international system of Codehupy- Coordinadora Derechos rallies in Venezuela. Protest marches in Brazil over the human rights protection defi ne the contents and scope The characteristics common to all countries analyzed Humanos Paraguay, Paraguay. public fi nancing of the World Cup. These are just a few include violent state responses, the criminalization of of these positive state obligations. of the multitudinous social protests that have occurred militants and activists, public policies that seek to limit APRODEH- Asociación Pro Derechos across in recent years, in which different or restrict protests and demonstrations, and the Humanos, Peru. groups or communities have laid out their demands. impunity of human rights violations, with different Provea- Programa Venezolano de Although Latin America has experienced processes of degrees of severity. This regional survey shows histor- Educación-Acción en Derechos economic growth and signifi cant improvements to the ical patterns that persist – including the abusive use Humanos, Venezuela. living standards of a broad spectrum of social sectors, of force and criminalization – and new trends, such CELS- Centro de Estudios Legales y states have responded disproportionately to the tensions as regulations to limit protests. In the same period, Sociales, Argentina. and confl icts arising from the contradictions in their some experiences show the will to develop democrat- economic development models, which have not ic mechanisms for managing conflicts; however, in managed to substantially reduce social inequality. In the many cases these mechanisms have been met with majority of these countries, the streets are the stage for difficulties, preventing them from becoming public putting the spotlight on demands for access to basic policy with any continuity. chapter 1 Legal and administrative restrictions chapter 1 Legal and administrative restrictions

In many Latin American countries, laws, bills, regulations crimes that are frequently associated with protests, such protests and set the conditions for carrying them out. In occurred in Lima and Arequipa, Peru. In Venezuela, and judicial interpretations aimed at regulating or limiting as roadblocks or property occupation; and creating some cases, it also gives them the power to prohibit since 2002 the National Security established the right to protest have multiplied. aggravating factors for crimes, such as property demonstrations and authorize the use of police force to “security zones” where demonstrations are prohibited. damage, when committed in the context of protest. disperse them, if it considers the organizers have failed In Paraguay, a 1997 law limits the hours in which Brazil is a paradigmatic case. In 2013, when mass to meet the conditions. This type of restriction does not protests can be held in Asunción; prohibits gatherings These regulatory reforms are principally focused on protests fl ooded the streets of its main cities, more than respect the right to protest without the need for state of more than 50 people and public demonstrations in street and roadblocks. In Venezuela, a reform to the a dozen legislative initiatives were presented in Congress authorization set forth by different international human front of the government palace or police and military Criminal Code in 2005 made cutting off streets and and the state and municipal legislatures. Something rights protection organizations1; in many cases, these headquarters; and establishes that demonstrations roads by protesters illegal. In Colombia, this was classi- similar occurred in Mexico when, in the face of the large regulations also violate national constitutions. cannot block bridges, train tracks, roads or public fi ed as a crime under the “Citizen Safety Law” in 2011; number of demonstrations protesting the disappearance paths. In practice, the hourly restrictions are not in September 2013, the Colombian defense minister In Mexico, in the Federal District (Mexico City) and of the students from Ayotzinapa in 2014, numerous local applied, but those regarding location are. and federal laws sought to control the protest movement. presented a bill to expand these criminal offenses. Veracruz, recent local laws require notification to authorities, without considering the possibility of Cutting off streets or roads as a form of protest is very Although broad social sectors reacted in opposition to Recent measures include the prohibition against conduct spontaneous rallies. In Peru and Chile, standards have entrenched throughout Latin America. In different these initiatives, six new laws were passed between May that was not previously considered a crime, such as been in place for several years that establish procedures countries, there have been attempts to restrict this 2014 and late 2015. In Argentina, various bills also wearing masks, and aggravating sentences when such which, in practice, are systems for prior authorization. practice by prioritizing traffi c circulation over demonstra- sought to regulate demonstrations in 2014; at that time, crimes are committed in the context of a rally. In Brazil, In Colombia, the recently approved National Police tors’ right to protest. In Mexico, Federal District law limits none of the proposals gained suffi cient consensus the bill to defi ne the crime of vandalism sought to consid- Code establishes the requirement to give prior notifi - the use of certain routes, without clarifying which ones, among legislators to make it to the congressional fl oor, erably increase the penalty for damage to public and cation in writing of the date, time and route of the rally, and the law in the state of Quintana Roo stipulates that but the intention remains on the political agenda. private property when it occurs in the context of public signed by at least three people. only half of the lanes can be used for protests. These demonstrations. And while wearing masks is not a crime, In recent years, courts all over Latin America have types of regulations are usually used to justify violent in the states of Rio de Janeiro and São Paulo, it was In the favelas of Rio de Janeiro, Brazil, where military tended to interpret existing laws with a restrictive dispersal and repression of social protests. In Brazil, in prohibited during protests and demonstrations. forces have been permanently installed, the situation is approach to the rights inherent in protests and have January 2016 during a march by the Pase Libre particularly acute. In 2007, the State Security Secretariat applied them with more intensity. In addition to inducing increased criminalization of Movement in São Paulo, protesters refused to follow the placed a mechanism for prior authorization in the hands protest actions, this type of standard is intended to have route set by police. When they tried to take a different These new rules, resolutions and judicial decisions are of police authorities, not only in relation to protests, but an inhibiting effect: they aim to restrict a priori by one, the police repressed the protest, closing all escape characterized by the imposition of more bureaucratic also for events of other natures taking place in public announcing potential repressive consequences and thus routes. As a result, dozens were injured. The secretary and administrative restrictions, such as the requirement spaces, such as cultural activities. In Venezuela, in 2014 discourage participation. of security for the state of São Paulo defended the for prior notifi cation, the creation of new criminal offens- the Supreme Court issued a ruling in which it considered repression based on the argument that, according to es and increased sentences. Furthermore, in the most that the protection of the right to freely moving transit the Constitution, protesters are obligated to notify extreme cases, intervention by the Armed Forces is could justify the use of force in demonstrations that have Prior notifi cation authorities of the march route. authorized, suspending the application of judicial not been authorized. guarantees in the name of protecting public order. Requiring organizers to provide prior notifi cation to local authorities of the place, date and time of a protest Regulations have also come into force prohibiting effectively works as a limitation. protests in certain zones, such as close to public Criminalization of actions and conduct buildings or in the central areas of cities, as has This requirement is often justifi ed by presenting it as a Many of the regulations approved in recent years intensi- path to greater protection for the right to protest. fy the sanctioning of actions or conduct related to However, prior notifi cation often ends up functioning as 1 IACHR, Annual Report 2015, Chapter IV A, “Use of Force”, protests. This group of reforms involves issues such as: a covert requirement for authorization. In these cases, paragraph 65; UN Human Rights Council, “Joint Report by the Special Rapporteurs on the Rights to Freedom of Peaceful prohibiting actions in protests that are not prohibited in the procedure for notifi cation grants the authorities the Assembly and Association and on Extrajudicial, Summary or other contexts; increasing penalties for infractions or power to impose dates, times and authorized places for Arbitrary Executions”, A/HRC/31/66 of 2016, paragraph 21 14 LATIN AMERICAN STATE RESPONSES TO SOCIAL PROTEST CHAPTER 1: LEGAL AND ADMINISTRATIVE RESTRICTIONS 15

These new rules, resolutions and judicial decisions are characterized by the imposition of more bureaucratic and administrative restrictions, such as the requirement for prior notifi cation, the creation of new criminal o enses and increased sentences. Furthermore, in the most extreme cases, intervention by the Armed Forces is authorized, suspending the application of judicial guarantees in the name of protecting public order. 16 LATIN AMERICAN STATE RESPONSES TO SOCIAL PROTEST CHAPTER 1: LEGAL AND ADMINISTRATIVE RESTRICTIONS 17

Intervention by the Armed Forces accused protesters of being “motivated” or “infi ltrated” potential sentence of up to 30 years in prison. In by the guerrillas. The most severe impact Venezuela, the Law Against Organized Crime and the In some countries, laws have been approved lately that Financing of Terrorism (LODOFAT in Spanish) was purport to avoid “grave threats to public order,” but often This military presence contributes to increased levels of of these regulations is passed in April 2012, which classifi es different criminal arise as reactions by the state to social protests. In the violence in the state response to protest, given the fact offenses that have been used to prosecute persons most extreme cases, these regulations authorize partic- that the Armed Forces are not trained in the graduated that they enable, through detained during demonstrations. ipation by the Armed Forces in domestic security use of force. On June 24, 2013, an operation in response operations, which ultimately leads to a more militarized to a demonstration in the Maré favela in Rio de Janeiro legal or administrative In countries like Argentina, Brazil, Ecuador or Mexico, state response. lasted 24 hours. Residents were stopped from entering the criminal offenses of terrorism and fi nancing of terror- or leaving the neighborhood; there were tear gas bombs, channels, repressive ism have been reformed as a result of the initiative and This is the case in Brazil. Even though the country’s rubber and real bullets fi red. Ten people died as a result. pressure by the Financial Action Task Force (FATF), to Constitution does provide for intervention by the Armed state intervention include the adoption of regulations of this type, along Forces to guarantee public order, the wording does not with those that cover the crime of money laundering, in clarify the circumstances in which this would be permit- when demonstrations the directives for member countries. In Paraguay, the ted. By way of decrees, this role by the Armed Forces reform was pushed by the Secretariat for the Prevention has been authorized for a wide range of situations Anti-terrorism laws do not comply with the of Money Laundering. involving internal security, such as the “pacifi cation” of “Anti-terrorism” laws or reforms to the different types of established criteria. With shantytowns and peripheral areas and during mega criminal offenses referring to terrorism, which suspend Chile is one of the most serious cases of the application sports events, especially for demonstrations and procedural guarantees or establish broad criminal some legal regulations and of this type of regulation. Its Anti-Terrorism Law, which protests occurring in those contexts. categories, have expanded in many countries of the sets judicial penalties of the highest order, operates according to procedural norms, such as the use of In Venezuela, the Ministry of Defense passed a resolution region. The broadness and vagueness of these criminal initiatives, this happens anonymous or “faceless” witnesses and the use of in January 2015 empowering all components of the offenses enables them to be used to criminalize confl icts. because they explicitly pre-trial detention, that do not adhere to human rights Bolivarian National Armed Forces to carry out actions In general, defi nitions are adopted that involve actions standards. In a ruling on the use of this law against the to control public order in demonstrations. that make them applicable to protests, such as the authorize repression; in purpose of “obligating or coercing (…) constitutional leaders of the Mapuche people, the Inter-American In Peru, a 2010 legislative decree granted the Armed bodies or their members, in order to carry out an act or others, the justifi cation of Court of Human Rights concluded that the law infringes Forces the power to support police forces and consider abstain from doing so, in the exercise of their duties.” 2 basic procedural guarantees, such as the presumption mobilized social groups as “hostile”; it further provided repression is indirect. of innocence and the right to respond in liberty, in that unlawful acts of repression shall be investigated in Brazil passed an “anti-terrorism law” in 2016; in previous addition to fi nding that its application was based on the military justice system. In Paraguay, a legislative years the National Security Law in force since the military stereotypes and prejudice related to the ethnic origin of reform in 2013 allowed the president of the republic to dictatorship, which covered acts “of terrorism due to the party involved. engage the Armed Forces in “cases of threat or violent political disagreement,” was applied against participants actions against legitimately established authorities that in public rallies. Likewise, the Law on Criminal impede the free exercise of their constitutional and legal Organizations approved in 2013 was modifi ed in 2016 duties,” an abstract description that could enable its to also include penalties for terrorist groups. It was application during protests. In Brazil, the use of the applied in 2015 in an accusation by the state of Goiás Armed Forces was extensive during the large interna- Public Prosecutor’s Offi ce against four members of the tional soccer events it hosted in 2013 and 2014, and Sin Tierra Movement (MST in Portuguese) in the context the Olympics in 2016. of a land dispute and the occupation of a sugar cane plant that, according to the MST, holds a huge debt with In the entire region, however, participation by the Armed the state, accumulated since the 1970s. Forces seems to be more frequent in rural or peripheral areas and informal settlements. In the shantytowns of In 2010, Paraguay enacted a law “that punishes Rio de Janeiro, military presence in operations carried criminal acts of terrorism, association and fi nancing of out in the context of demonstrations is the consequence terrorism.” With this objective, the regulation sanctions of the policy of permanent military occupation to whoever commits “dangerous interventions in land “combat” drug trafficking. In Peru, in a protest in transit” for the purpose of inciting or causing terror. The Cajamarca in 2012 over a mega mining project, a case of Paraguay shows how conduct that could be combined operation between the police and Armed considered a minor offense or simple administrative Forces ended in five firearms-related deaths. In infraction, such as a roadblock, can be categorized Colombia, although the Constitution differentiates police under the umbrella of the crime of “terrorism”, with a from military duties, the context of armed confl ict was used to justify the participation of the Armed Forces in protests, in particular when the executive branch 2 Paraguay, Law 4024 of 2010 18 LATIN AMERICAN STATE RESPONSES TO SOCIAL PROTEST CHAPTER 1: LEGAL AND ADMINISTRATIVE RESTRICTIONS 19

ARGENTINA MEXICO

Paradigm shift in a context of Laws against the growing social confl ict right to protest

For 12 years, from 2003 through new authorities began to express cases, water-cannon vehicles were There is a growing wave of security in order for them to make 2015, the Argentine government this shift in focus, which involves used and rubber bullets were attempts in Mexico to regulate use of the public forces, and even sustained a principle of non-re- less tolerance for some forms of observed being shot at protesters demonstrations and protests, break up demonstrations under pression, prioritizing political protest, especially the cutting off to disperse them. In the province accompanied by lax regulation of the justifi cation of ensuring “peace negotiation as a way to allay of streets, prioritizing the use of of Neuquén, a worker was injured the arbitrary use of force. In a and quiet, citizen safety, public confl icts. This approach had its repression over political by a lead bullet shot by provincial short period of time, executive peace and order,” the vagueness setbacks and there were negotiation. police during a protest. and legislative authorities have of which is open to interpretation transgressions in several provinc- passed laws or submitted bills and can be used arbitrarily. At the regulatory level, the Ministry The more restrictive approach to es, but in general terms, the with regulatory frameworks aimed of Security announced a “Protocol • Imposing administrative protest has also been used in at restricting, sanctioning or balance for the period was the for Action by State Security Forces sanctions for any disruption of political decision to regulate the cases of prosecution of social limiting rights. in Public Demonstrations,” which in leaders. The most emblematic of order, untimely crossing of public use of police force in demonstra- practice gives instructions for the In this sense, Mexican authorities streets, carrying out actions or tions in response to the serious these is the leader of the Tupac police forces to disperse street or Amaru movement, Milagro Sala, have presented 17 local and making omissions that damage episodes of death and injury that roadblocks. The protocol has never federal initiatives in the past two the public order or morale, among who was incarcerated for leading a marked the country’s recent past. been made offi cial, and the status years that regulate demonstra- others. sit-in in a public space as a form of The most advanced materialization of its legal validity is ambiguous, so tions. Their common protest to government measures in • Classifying demonstrations as of this model was Resolution it appears to be more of a threaten- characteristics are: the province of Jujuy. lawful or not, violent or peaceful, 210/11 of the Argentine Ministry of ing message aimed at discipline. If • Restricting demonstrations: and allowing entire demonstra- Security, which lays out principles implemented, it would entail serious The broad agreement regarding they impede the use of certain tions to be broken up instead of for police action protocols, includ- setbacks on various fronts, given the need to prevent the state’s traffi c routes or allow protesters to acting in a specifi c fashion in ing prohibiting police offi cers from that it does not prohibit the bearing response to protests from causing occupy only half of the lanes. cases in which some incident may carrying fi rearms loaded with lethal of fi rearms by police, does not death and affecting the bodily have occurred. ammunition when intervening in regulate the use of rubber bullets, integrity of protesters continues. • Requiring advance notice to protest operations. expands police authority to detain Nevertheless, there is a question authorities, with no consideration • In some cases, they are unclear In late 2015 there was a change of people without a court order in the looming as to the consequences for the existence of spontaneous as to the use of “non-lethal” government in Argentina. During context of protests, and restricts that could come with the consoli- demonstrations. Sometimes this weapons in operations and allow journalists’ freedom to work. the electoral campaign, the dation of policies of low tolerance notice involves a series of dispro- their arbitrary use. portionate requirements. candidates for the Cambiemos In recent months, some violent for certain protest formats and the Furthermore, this has an inhibiting alliance had already put forward operations have been carried out in messages to police forces to effect on people who do not know their restrictive conception of provinces like Jujuy and Salta and intervene with force, at a time what might happen to them if they social protest, referring to in cities, such as La Plata, or on when growing social unrest linked participate in spontaneous demonstrations as issues of public access routes into the city of to the economic policies demonstrations. order, and even as crimes in the Buenos Aires, where police forces implemented by the current case of cutting off streets. Upon have dispersed groups of protest- government demands even stricter • Granting broad, vague powers assuming the government, the ers and roadblocks. In these control over police actions. to the authorities in charge of 20 LATIN AMERICAN STATE RESPONSES TO SOCIAL PROTEST CHAPTER 1: LEGAL AND ADMINISTRATIVE RESTRICTIONS 21

In Peru, Venezuela and Cutting o streets or roads as a Paraguay, there are form of protest is very entrenched regulations that prohibit throughout Latin America. In protests in certain places, di erent countries, there have been such as close to public attempts to restrict this practice by buildings or in the central prioritizing tra c circulation over areas of cities. demonstrators’ right to protest.

One of the most concerning aspects of these regulations The established procedures for prior notifi cation, in is that they distinguish legitimate from non-legitimate principle intended to guarantee the right to protest and protests, legal from illegal, peaceful from non-peaceful, the rights of third parties, have operated generally as scheduled from spontaneous, lawful from unlawful. restrictive mechanisms. In practice, they end up granting PERU This is the case of the Law on the Use of Force for the the right to free movement a higher status than that state of Puebla, Mexico, which classifi es demonstrations given to the right to demonstrate. In setting prohibitions as “the mere expression of ideas” on one hand, and or restrictions on the form or place for demonstrations, Restricted use “violent” on the other; and the Mobility Law for the these regulations ignore the fact that protests, in most of public space Federal District, which uses the concept of “perfectly cases, seek to have a disruptive effect on everyday life legal” demonstrations. A bill introduced in Argentina in in order to raise awareness of ideas and demands that 2014 proposed that a distinction be made between usually do not have a place in the political system or in public demonstrations “that are spontaneous and others mass media. Such protests are also intended to draw The Political Constitution of Peru addition, the resolution requires circumstances, and facilitated via that are scheduled in advance and with prior notifi cation the attention of the authorities and, therefore, it is indicates that gatherings in public the signing of an offi cial agreement social networks. to the applicable authority,” whereby the former should imperative that they approach public authorities’ plazas and streets “require that includes the planned route be obligated to be carried out in “predetermined public In January 2015, then Interior headquarters. Many regulations also ignore the advance notice to authorities, and a commitment to not alter the spaces.” In Peru, although there is no existing regulation Minister Daniel Urresti tried to put which may prohibit them only for public order, interfere with traffi c, that explicitly makes a protest illegal, it is common sometimes spontaneous nature of social protest, which cause property damage or bear a de facto limit on the right to practice for the state to arbitrarily declare a state of refl ects the inherent dynamics of social confl icts. proven security or public health arms or blunt objects. assemble at a youth demonstra- emergency – provided for in Article 137 of the reasons.” It does not establish an The most severe impact of these regulations is that they tion protesting reduced labor Constitution – for 30 or 60 days to prohibit demonstra- administrative authorization, but enable, through legal or administrative channels, repres- In practice, this procedure tions and public gatherings in high-impact confl icts, and rather prior notice for the exercise rights, for which prior notifi cation sive state intervention when demonstrations do not functions as an administrative to militarize its control of public order. This has occurred of the freedom of assembly. had not been given. As a comply with the established criteria. With some legal authorization, because omitting it repeatedly during mass protests in Amazonas in 2009; condition for access to the However, a resolution by the is viewed by the police as miscon- in Cajamarca in 2011 and 2012; and in Islay and regulations and initiatives, this happens because they demonstration site, the minister explicitly authorize repression; in others, the justifi cation Ministry of the Interior requires a duct. In “unauthorized” public Apurímac in 2015. required that demonstration of repression is indirect. free procedure called “request for protests, the jurisdictional police participants present their IDs to These binary defi nitions do not account for the variety guarantees” to be carried out at determine at the time whether a The new regulations, decrees and protocols adopted in and complexity that situations of social protest can least three days in advance. demonstration may take place or police forces, and prohibited them encompass. The lines between the categories are blurry the region have given way to state responses aimed at Interested parties must communi- not and under what conditions, a from carrying backpacks or and often extrapolate the classifi cation of the conduct making demonstrations diffi cult and inhibiting them. cate in writing the identity and situation broadly open to their wearing scarves to cover their of a few individuals to apply it to an entire demonstration. They discriminate between protests considered permit- personal addresses of the discretion. The minimum notice of faces. The minister announced the In practice, these distinctions are turned into decisions ted and others deemed prohibited, and have the general conveners, the date, time and three days cannot always be met, prohibition through the media, but made at the discretion of public authorities and often by effect of enabling the use of force and increasing the route of the rally, estimated given that immediate calls to in the end, criticism by the chair of police forces during operations. One consequence is punitive power of the state. the uneven response by states to protests, depending number of participants and assemble are more and more the Council of Ministers forced on the context in which they take place. grounds for the assembly. In frequent in reaction to him to reconsider the decision. 22 LATIN AMERICAN STATE RESPONSES TO SOCIAL PROTEST CHAPTER 2: REPRESSION AND THE USE OF FORCE 23 chapter 2 Repression and the use of force 24 LATIN AMERICAN STATE RESPONSES TO SOCIAL PROTEST CHAPTER 2: REPRESSION AND THE USE OF FORCE 25

chapter 2 Repression and the use of force

Latin American states use police force as a way to Institutional mechanisms have been created in In Colombia, the National Police Anti-Riot Mobile since 2004 there have been at least 330 injured by prevent, break up or limit the development and scope some instances, but they aren’t always implement- Squadron (ESMAD in Spanish) has been held responsi- rubber bullets during protests, most in 2014. In of demonstrations. The police in the countries analyzed ed so as to function as effective methods of ble for 448 cases of aggression, affecting 3,950 victims Chalchihuapan, Mexico, a 13-year-old boy died as the share certain patterns of behavior when it comes to response to social conflicts. For example, in Peru between 2002 and 2014. These cases include 13 result of gas grenades thrown by police. In Chile, intervening in protests and carrying out operations in a – where approximately 80 people lost their lives at extrajudicial executions, 137 injuries, 91 arbitrary student Rodrigo Avilés went into a coma and had scenario characterized by the absence of specific the hands of police during social conflicts between detentions, 107 threats and two episodes of sexual severe repercussions after being sprayed at short regulation of the use of force, lack of education and 2010 and 2015 – the government created a National violence, according to the database of the Center for range from a water cannon during a demonstration in proper training of police personnel and, in some cases, Office of Dialogue and Sustainability in 2012. Popular Research and Education (CINEP in Spanish). Valparaíso in May 2015. In Argentina, teacher Carlos the involvement of the Armed Forces. However, 56% of dialogue processes were opened Fuentealba died in 2007 after being shot with a tear gas grenade. In 2014, during a strike involving farmers, Historically, the violent state response to social protests after a violent event had occurred. ethnic and grassroots groups in Colombia, 78 protest- was generally concentrated in rural, peripheral and In Argentina, Resolution 210 on the “Minimum Criteria ers, including minors, were injured by rubber bullets marginalized areas. At present this has extended to a • The indiscriminate use for Developing Protocols for Action by Police and and tear gas thrown indiscriminately into buildings or growing variety of protests that bring together a broad of “less-lethal” weapons Federal Security Forces in Public Demonstrations” shot directly at people. Some members of the National spectrum of social groups and sectors. stipulates that negotiations with demonstrators cannot The wide use of “less-lethal” or anti-riot weapons is Police Anti-Riot Mobile Squadron (ESMAD) used tasers be handled by those in charge of police operations, and common throughout the countries of the region. These on young people and women. shall “have the objective of identifying demonstrators’ types of weapons are used indiscriminately to break up demands in order to channel them to the proper area.” demonstrations; even after the crowds have been Police practices This article makes a distinction between handling the dispersed, police often pursue protesters leaving the use of public space in a specifi c situation and the state’s rally site. Rubber bullets and tear gas grenades, among • Police saturation and crowd-kettling obligation to respond to the underlying social confl ict. other weapons, are often used in response to • Inexistence of opportunities for dialogue or But because these action principles do not have the demonstrations, even though there have been no The increase in the number of police and equipment that political channeling of confl icts states allocate to operations verifi ed in different countries weight of law, they have not been incorporated into protocols or regulations put in place to limit or prohibit of the region has different consequences: it may discour- There are nearly no experiences in the region of political regular practice by the police or sustained over time. their use by security forces. age attendance at protests and add tension to confl icts. negotiation as a way to mediate confl icts, and in most In August 2015, an infantry group in Tucumán, Furthermore, large deployments of hundreds of armed cases force is used without having attempted dialogue In the events that occurred in Nochixtlán, Mexico, the Argentina pursued demonstrators in a multitudinous police protected by shields create a threatening with protesters. During occupations and roadblocks, lack of proper mechanisms to respond to protest protest and fi red rubber bullets point-blank and at their atmosphere around protests. In Brazil, during the 2013 this problem becomes more evident, given that the situations had serious consequences. In June 2016, backs. In addition, the mounted police used whips and Confederation Cup, the Armed Forces added 3,700 police forces usually proceed immediately to free up during the confl ict over the education reform, teachers clubs to beat protesters. Dozens were injured. Similar agents and 500 vehicles to those deployed by the property or streets, vacating and dispersing by force. and townspeople blocked a highway. Eight hundred troops belonging to the Oaxaca Public Police, the operations have occurred in other countries, such as police, including armored vehicles, troop transport, eight In cases in which protesters’ demands could be resolved Federal Police and the Gendarmerie carried out an Paraguay in September 2014, where police repressed helicopters, cavalry and a section of trained war dogs. by the political authorities, what usually happens is that operation to remove them. According to information a protest over land and housing access in front of the Turning off street lighting in places where gatherings take opportunities for dialogue, if any, generally occur from human rights organizations and the Offi ce of the Asunción city hall. place compounds this problem, as has occurred in between police chiefs and demonstrators on the protest Brazil and Mexico. UN High Commissioner for Human Rights, at least ten Rubber bullets, sound and tear gas bombs have site, without the presence of interlocutors with any real people were killed by bullet wounds as a result of the caused a huge number of injuries all over Latin America, At the same time, kettling, or corralling, tactics are used, decision-making capacity to make commitments and eviction. An excessive use of force was also document- some with irreversible consequences such as in the which involve surrounding demonstrators and blocking propose alternatives that might address some of the ed: fi rearms, tear gas and rocks were used. At least 23 case of photographer Sergio Silva, who lost sight in all exits. This practice combined with the use of police demonstrators’ complaints. people were detained arbitrarily, and peoples’ right to one eye after being shot with a rubber bullet in an act force has serious effects. In a great number of cases, health was also affected due to lack of medical attention. of repression in São Paulo, Brazil in 2013. In Venezuela, the police forces close exit routes and use “less-lethal” 26 LATIN AMERICAN STATE RESPONSES TO SOCIAL PROTEST CHAPTER 2: REPRESSION AND THE USE OF FORCE 27

weapons, which under these circumstances pose a of “protective detention” established in the National Police In some countries, the effectiveness of positive training greater risk of physical harm. This is what happened in Rubber bullets and tear Code allows people with emotional disorders to be initiatives is diminished due to the lack or insuffi cient January 2014 in Asunción, Paraguay at a protest over detained without a court order; this regulation was used nature of any regulation on the use of force that clearly a public transit fare increase, when protesters were gas grenades, among against young people in the protests of May 1, 2013. sets out the relevant legal standards, and because of surrounded and beaten with batons, kicked and hit with other weapons, are the impunity for those who do not comply with standards officers’ anti-riot shields. Very similar operations and protocols. In Peru, the principles of necessity, occurred in Brazil during the World Cup Final, when the often used in response • Attacks on freedom of speech and journalism legality and proportionality on the use of force fi gure in Rio de Janeiro Military Police kept a crowd corralled for Mistreatment of people covering demonstrations, in the “Manual of Human Rights Applied to Police Duties,” four hours under brutal repression; in Mexico, kettling to demonstrations, particular when it comes to recording violations commit- which stipulates that the use of force should be avoided protesters is also a frequent practice. ted by police, are also a common factor among the in crowd dispersal or limited to the minimum necessary. even though there have It recommends fi rearms be used only when there is an This type of operation stands in the way of people countries studied. In some cases, these situations occur imminent threat of death or serious injury. Nevertheless, exercising their right to protest, for example when when security forces establish a police cordon intended been no protocols or the excessive use of force remains a systematic practice police barriers prevent protesters from moving or to keep press workers off site. In recent years, attacks by security forces. In Argentina, there have been setting a course. regulations put in place on journalists and press photographers have included beatings, pellet-gun shots, pepper gas, detentions, incidents of excessively violent arrests in which violence to limit or prohibit their confi scation of camera equipment and cell phones, is used to physically punish protesters. • Mass, arbitrary and violent arrests suppression of audiovisual and photographic material, use by security forces. threats and intimidation during coverage of protests. Mass, arbitrary and violent detentions are a frequent state • Uniformed police personnel without visible ID response to social protests. In some countries, the In Venezuela, journalist José Alejandro Márquez was and infi ltrated agents number of arrests is huge. For instance, there have been arrested on February 19, 2014 by an offi cial of the Participation by uniformed police offi cers who are not protests in Mexico, Colombia and Brazil in recent years Bolivarian National Guard who demanded he hand over wearing visible identifi cation, in some cases even with in which hundreds of people have been detained in just his cell phone. Márquez fl ed to avoid arrest and the their faces covered, has occurred in Colombia, Brazil, a few hours. At the same time, the arrests are often offi cer fi red on him; he was able to evade the bullets but Mexico and Paraguay. This practice creates an obstacle characterized by their violence: batons, hitting and kicking then fell and hit his head on the sidewalk. Guard offi cers when it comes to identifying and investigating human are repeatedly used. then beat him and took his phone. Márquez died a few rights violations during demonstrations and can days later. There are also reports and records of police Arrests do not usually follow a pattern nor are they adversely affect the reconstruction of events and assign- aggression of varying degrees against persons planned. In some cases, police arrest anyone close to ment of responsibility. There have also been many documenting demonstrations in Colombia, Mexico, them or that they can surround as a tactic to break up reports of cases of plainclothes police present among Paraguay, Argentina and Brazil. the protest; there are also usually arrests after the protest demonstrators in different countries. has been dispersed or on neighboring streets. In other These situations increase the risk of other rights cases, the detentions happen based on discriminatory • Inadequate education and training violations, in addition to violence against protesters, as criteria. This is seen, for example, in a radio communica- is the case when organizations and social movements tion recording how a Mexican policeman orders the arrest In the majority of these countries, education and training are infiltrated and criminalized, and force is used of “all these young guys with backpacks, those are the of their police agents to act in the context of demonstra- through illegal procedures. For example, in a protest in vandals; arrest anyone with a backpack.” tions is nonexistent or insuffi cient. Rio de Janeiro in July 2013, there were reports of police In different countries, there have been complaints of In an investigation done on the Rio de Janeiro police in agents – the “P2s” – who infi ltrated a protest and threw arrests that violate constitutional and legal precepts such 2014, 64% of offi cers interviewed stated they had not Molotov cocktails at police in order to justify the repres- as procedural time limits, and do not comply with the received proper training on how to perform their jobs sion and arrests. obligation to turn detainees over to the Public Prosecutor’s during demonstrations. In Venezuela, the state has not Offi ce and be put under the control of the judicial branch. launched programs on the proper use of force during In Brazil, the most widely used method for justifying protests, despite having been ordered to do so by the Regulating the use of force Inter-American Court of Human Rights in its ruling on arrests is taking people into custody for “questioning”, a In the region, policies and regulations are lacking on the events of El Caracazo, the massive protests that generic category that allows the police to search and the rational use of force during demonstrations and on took place in 1989.1 detain people for contempt and in fl agrante, often based violations of national and international human rights on fabricated evidence. In Chile, observers from the standards. National Human Rights Institute have noted that, although the protocols regulating actions by the Some positive examples of the regulation of the use of Carabinero police stipulate that minors under age 17 force can be seen in Argentina and Colombia. In must be released without requiring the presence of a Argentina, the “Minimum Criteria for Developing responsible adult, police agents continue to demand Protocols for Action by Police and Federal Security 1 Inter-American Court of Human Rights, ruling of August 29, 2002 this condition for their release. In Colombia, the concept on the events of El Caracazo (Redress and costs) Forces in Public Demonstrations,” adopted in 2011, 28 LATIN AMERICAN STATE RESPONSES TO SOCIAL PROTEST CHAPTER 2: REPRESSION AND THE USE OF FORCE 29

lists guidelines that must be observed by security exceptional use of lethal weapons, subsequent actions police actions allowed in each case. The protocol forces and should serve as the basis for drafting specif- by police agents – provision of medical care, communi- regulating the use of force in Mexico’s Federal District ic action protocols. Separately, at the local level, the cation of events to families of the injured or dead, is an extreme example, which permits demonstrations mayor of Bogotá, Colombia approved a specific presentation of a report on events to the police unit of to be broken up based on the “state of aggressive- protocol in November 2015. Both these documents origin – and rights and responsibilities. Nevertheless, the ness” of those demonstrating. Public security forces stipulate that police agents present at demonstrations regulation permits the use of lethal weapons in the event act in these cases making no distinction between a must wear ID; that force should be used only as a last of a “violent, tumultuous assembly,” without specifying peaceful demonstration and isolated acts of violence, resort; the use of fi rearms must be banned; and some what would constitute these conditions. The excessive at times attacking people who were not even partic- measures regulating the use of “less-lethal” weapons use of lethal force continued after the decree: one month ipating in the demonstration. In Chile as well, the must be taken. after it came into effect, the police executed three protocols for police action by the Carabineros distin- community members participating in a mass protest guish between authorized marches, considered legal, In most countries, the regulation of police conduct is against the Las Bambas mining camp located in the and unauthorized ones, deemed illegal and warranting marked by the following problems: Andean region of Apurímac. police intervention. Spontaneous demonstrations, in turn, are subject to the discretion of police authorities, In other countries, new protocols for social protests have • Low-level regulations and a lack of oversight whose actions are determined based on criteria such been adopted with a lax regulation of the use of force. as “peacefulness, safety and respect for police Given the increase in social protests, a variety of Local legislatures in Mexico approved regulations authorities.” In Colombia, the new National Police legislative initiatives have sought to limit, and in some granting broad, unspecifi c powers to the authorities in Code establishes that “any assembly or demonstra- cases, criminalize the exercise of the right to protest; charge of security for them to make use of the public tion that upsets people’s coexistence shall be the majority of countries, however, have omitted the forces and even break up demonstrations, invoking dissolved,”2 a quite broad criteria that legitimizes the issue of regulating police action. There are practically ambiguous, vague assertions such as “peace and quiet, general practice of breaking up demonstrations by no laws in Latin America that establish standards on citizen safety, order and public peace.” In the most the Anti-Riot Mobile Squadron. the use of force. severe case, a regulation approved in Puebla in May 2014 allows the use of lethal weapons in the context of In many cases, the existing resolutions and decrees demonstrations. Article 44 of this regulation stipulates • Broad criteria for detentions and searches issued by the executive are not even adopted by political the use of weapons as a measure of legitimate defense authorities, leaving them up to the police forces under to ward off aggression, preserve life or avoid serious Detaining and searching people during protests is their own supervision. harm to the bodily integrity of police or third parties. usually done according to regulations that do not set clear criteria. In Brazil, the only standard in place establishing criteria for police action in the context of demonstrations is a Chile is an illustrative case, where the protocols on the • Broad criteria for dispersing protests resolution by the Council for the Defense of Human use of force for the Carabineros violate the principle of Rights (CDDPH in Portuguese) from 2013. Although it The regulatory frameworks all share a lack of clear presumed innocence in establishing the “duty to act sets forth principles of non-violence, dialogue and rights criteria for authorizing the dispersal of protesters and swiftly to arrest criminals that could alter a peaceful guarantees as a paradigm for police action during defi ning how this should be carried out. Compounding demonstration.” They also establish the searching of protests and evictions, the regulation has no binding this is the lack of subsequent controls or assessment: clothing, equipment and vehicles, and the checking of effect for public security organs. police agents are not usually sanctioned for giving or IDs for up to eight hours; after that period, “if there is executing an order to disperse in breach of a regulation any indication that the person may have hidden his or In Argentina, the process of institutionalizing the – if there is one – or that has had negative consequences her true identity, said person should be arrested.” With Minimum Criteria was interrupted and the guidelines on the life or physical integrity of protesters. regard to the regulation of mass arrests, the internal were not passed into law, nor did they lead to regulations for the Carabineros indicate that the police specific protocols for action by federal forces. They In Venezuela, for example, a decision by the Supreme force should “avoid them,” which ignores the legal also had very little impact on police practices in Court of Justice in 2014 stipulated that “any crowd, criteria in force in Chile for arrests and their prohibition provincial jurisdictions. demonstration or public assembly that does not have under international law. prior authorization (…) may lead to action by the police and public security agents in charge of law and order to • Minimum principles too broad ensure the right to freely moving transit and other consti- tutional rights (…), using the best means possible to In some cases there has been progress toward incorpo- disperse said crowds.” This case demonstrates how the rating minimum principles on the use of force into the administrative mechanisms of prior notifi cation are used legal system, but they have not had a great impact on to justify violent dispersal. security forces in practice. This is the case in Peru, where Legislative Decree 1186, adopted in August Another common feature of regulations on the use of 2015, put an end to the legal vacuum and incorporated force in the region is how demonstrations are charac- 2 Article 53 of the National Police Code and Social Harmony, Law principles on the use of the force, the graduated and terized as “peaceful” or “violent” and the different 1801 of 2016 30 LATIN AMERICAN STATE RESPONSES TO SOCIAL PROTEST CHAPTER 2: REPRESSION AND THE USE OF FORCE 31

Police violence Police violence against women in rural areas

In addition to the violence against femicides in seven days, a Just as with security policies in massacre at Curuguaty in 2012, Another difference is related to participants in demonstrations in demonstration was convened in general, the levels of violence the level of violence has increased the use of force in the central general, there are also cases of March 2016 in front of the employed by security forces in in evictions of rural communities areas of large cities compared to In addition to physical, sexual and verbal government palace to demand a social protest situations also with the participation of police and the peripheries or in informal repressing protests, violence aimed at women across gender alert be raised in light of change according to space, Armed Forces and the use of settlements, such as favelas or power and violence countries on the continent. escalated sexist violence. Around context and social group. fi rearms. In Peru as well, security shantytowns. In Brazil, the 50 special forces agents with Common patterns of dispropor- forces typically respond with occupation of the favelas of Rio seek to reestablish Gender violence in the region has water-cannon trucks faced off tionate and illegitimate use of force extreme violence in confl icts de Janeiro by the Armed Forces been recorded through threats or traditional gender with 50 women protesters. The in protests in rural contexts can between rural communities and and Military Police as a strategy sexually suggestive verbal aggres- roles that assign a operation culminated with nine thus be observed in the region. extractive industries. At least 75 against drug traffi cking has meant sion by police and the excessive women and three men arrested, deaths were registered there more violence in response to socially passive role use of force. In this context, in Extensive areas of the region have beatings, kicking and insults from between 2010 and 2015 in this demonstrations that take place to women. addition to repressing protests, historically faced social, environ- the police. In November 2015, type of confl ict, the majority of there than in the rest of the city. power and violence seek to mental and labor issues associated participants at the 1st Feminist them caused by the use of reestablish traditional gender with models that prioritize Much of this aggression remains and Independent Book Fair in fi rearms. After the arrest of roles that assign a socially passive extraction – mining in particular, invisible, either because it occurs Porto Alegre, Brazil were assault- environmental leader Marco Arana role to women. One example was and industrial agriculture – to the in faraway places or areas of ed and threatened by police. in a main plaza of Cajamarca on a demonstration in Temuco, Chile, detriment of other land uses, such diffi cult access for the press, or Moreover, in the Marchas das July 4, 2012, a citizen asked police in which a 22-year-old woman as agroecology, community because society has a greater level Vadias (SlutWalks) that go on in on the scene, “Why do you treat was verbally assaulted and then property and cultural and religious of tolerance for it. The lack of different cities across the country, us this way?” The literal response arrested – in breach of any legal traditions. In this context, indige- democratic control in these areas participants commonly suffer was, “Because you are dogs.” standard – and forced to undress. nous and rural communities have compared to urban centers makes offenses of a sexual nature, as In demonstrations in Brazil, become the protagonists in Public security forces in many it incredibly diffi cult to effectively well as aggression and threats in Mexico and Chile, there have struggles for access, restitution, countries are at the service of investigate the facts, and contrib- some cases. been reports of verbal abuses the acknowledgment and the defense private and corporate interests, utes to the chronic persistence of likes of “fucking whores, you This is not a new phenomenon. of their land and territory. and constantly intimidate these these levels of violence. wanted to come march?” or “this However, it is usually kept in the communities, attempting to Instead of prioritizing consultation, little is ready to fuck;” dark and thus contributes to the interfere in their organizational dialogue and respect for human “search her as far as her cunt” perpetuation of violent practices efforts, curtailing participation by rights, governments confronting and “go home, dirty bitches.” against women by police and deploying a disproportionate these scenarios generally give state agents. number of security agents and Other expressions of gender priority to the use of force, often even militarizing certain zones violence include the excessive resulting in injuries, evictions, and communities. In some use of force to repress protests displacements and casualties that cases, this is also combined by women’s and feminist frequently go unpunished. In with actions taken by private movements. In Chile, after seven Paraguay, particularly after the security companies. 32 LATIN AMERICAN STATE RESPONSES TO SOCIAL PROTEST CHAPTER 2: REPRESSION AND THE USE OF FORCE 33

BRAZIL In the region, policies and regulations are Racist state lacking on the rational use of force during responses demonstrations and on violations of national and international human rights standards.

2.5 2737 black youth are 2.5 times more black teenagers aged 16 likely to be killed than whites and 17 were killed in 2013

Discretion and lack of oversight

Racism permeates action by public situation is inverted; while they and was repressed with sound With few exceptions, the regulatory framework for police security and criminal justice agents represent 54.5% of the population, bombs and fi rearms. action is usually general, contradictory and has broad in Brazil. According to the Index of whites account for 19.7% of fatali- margins of discretion when it comes to action by security Moreover, when Afro-descendants Juvenile Vulnerability to Violence ties at the hands of security forces. forces. These regulations often have no legal hierarchy, protest in central areas of the city, or oversight mechanisms to guarantee their compliance. and Racial Inequality for 2014, The racial selectivity of the public they usually suffer tougher repres- Furthermore, the validity and application of these regula- black youth are 2.5 times more security system also plays out in sion and arrests. Two emblematic tions has not been consistent. likely to be killed than whites. An protests, where use of fi rearms cases are Rafael Braga Vieira and Another common feature of investigation done by Amnesty In Venezuela, the Constitution prohibits the use of toxic and a high degree of police lethality the Black Women’s March. Rafael, regulations on the use of force in International indicates that of the substances and fi rearms in the control of peaceful the region is how demonstrations are common: 12 out of 20 deaths a young, homeless black man, 56,000 homicides perpetrated in demonstrations, and there are regulations establishing are characterized as “peaceful” or in protests between June 2013 was close to a large demonstra- the principles of proportionate, differentiated and “violent” and the different police the country in 2012, 30,000 and March 2014 occurred in tion in June 2013 and was graduated use of force. However, no policies have been actions allowed in each case. victims were young people, of favelas. The population that lives in carrying two bottles of cleaning developed to ensure that these regulations are met. On whom 77% were black. In 2013, these shantytowns is predominant- products. He was arrested the contrary, in 2014 the Supreme Court issued a 2,737 black teenagers aged 16 ly black, so the issue of class is arbitrarily, accused of “carrying decision allowing repression if demonstrators do not and 17 were killed, i.e. 66.3 per permeated by racism in these explosives” and sentenced to fi ve have prior authorization by the state. one thousand young people – a marginalized neighborhoods. The years in prison. In November These examples show that the transformation of police homicide rate 173.6% higher than case of Aliélson Nogueira, a man 2015, 20,000 women participated practices depends not only on the adoption of clear for whites. At the same time, the of African descent who was in the Black Women’s March action criteria, but also on the institutionalization of these 2005 “Human Development Report executed by military personnel with Against Racism and Violence and criteria into laws that incorporate international human on Brazil: Racism, poverty and a shot to the head on April 4, 2013 for Living Well in Brasilia. Outside rights standards. In general, such criteria have not been violence” of the United Nations during a protest in Jacarezinho, the Congress building, police given suffi cient priority and their application has been Development Program (UNDP) subject to the political will of governments, without exemplifi es these practices. The belonging to a group defending shows that police action is rife with responding to outside controls, whether administrative other protesters surrounded the the previous military dictatorship racism. According to that publica- or judicial. Another problem affecting the vast majority body to guarantee that the forensic threw homemade bombs at the tion, blacks represent 11.1% of the of countries is the absence of education and training of examination be done properly and women and fi red shots into the air population and 32.4% of deaths at police offi cers on these principles, in addition to the lack to prevent police from removing it. above the crowd. the hands of police in the state of of oversight and supervision of operations to allow for After his death, the demonstration the subsequent investigation and sanctioning of those Rio de Janeiro. Among whites, the that had begun earlier intensifi ed responsible when human rights violations occur. 34 LATIN AMERICAN STATE RESPONSES TO SOCIAL PROTEST CHAPTER 3: CRIMINALIZATION OF PROTEST 35 chapter 3 Criminalization of protest 36 LATIN AMERICAN STATE RESPONSES TO SOCIAL PROTEST CHAPTER 3: CRIMINALIZATION OF PROTEST 37

chapter 3 Criminalization of protest

The criminalization of social protest is based on the use compare the results of judicial investigations against fi led against him because he was a visible leader of the • Obstruction of public roadways of the criminal justice system to respond to social those who participate in marches, occupations, march. In May 2016 in an appeal submitted by the In Peru, during the presidential mandates of Alejandro confl icts. People who lead or participate in demonstra- roadblocks or sit-ins with those investigating police defense, even the prosecutor sustained to the Supreme Toledo and Alan García, Congress increased the tions to express opposition or dissent often must face responsibility for violent evictions, repression and death. Court the atypical nature of the conduct saddled upon penalties for collective acts of protest moving along arbitrary arrests and criminal proceedings. the indigenous leader. The violent repression of the Indoamericano Park public roads: the crime of disrupting public transit This criminal prosecution of protesters and social activists occupation in Argentina in 2010 and the massacre at A third pattern identifi ed in numerous cases is the services went from a maximum penalty of four years to is a historical trend that shows certain patterns throughout Curuguaty, Paraguay in 2012, are paradigmatic cases. violation of procedural guarantees. Arbitrary arrests, six years in 2006, and to eight years in 2010. This Latin America. First, the repertoire of criminal offenses In the Argentine episode, a violent operation to evict collective accusations without an individualized account reform, by increasing sentence lengths, enabled the used to prosecute protest is similar across countries. people who were defending their right to housing result- of conduct, and the disproportionality of sentences possibility of pre-trial detention. Since nearly all protests Furthermore, there has been a proliferation of legal reforms ed in three people dead. While the trial of the police imposed upon protesters are some of the most serious occupy public space, these regulations are invoked frequently by judicial offi cials. in the region, including the creation of new offenses, an offi cers has still not taken place, the judiciary of the city aspects of this pattern. The increasing use of intelligence increase in sentences, the creation of aggravating factors of Buenos Aires has invested vast resources into taking tactics, such as the infiltration of police agents in In Venezuela, the criminal offense that applies to blocking and the loosening of procedural guarantees. some of the social leaders who participated in the assemblies and marches, and communications surveil- traffi c provides that there must be intent to “prepare to occupation to court. Those protesters were absolved in Criminalization does not always end in a sentence. In lance, all aggravate this picture and are an additional cause damage.” However, this article of the Criminal 2014; the judges ruled that the prosecutors had no Paraguay, in cases involving situations of social protest, threat to civil and political rights. Code is employed by the Public Prosecutor’s Offi ce to evidence to sustain the allegations. In the Curuguaty the Public Prosecutor’s Office has promoted the criminalize protests that use blocking traffi c as a strate- massacre, those responsible for the death of nine In the vast majority of cases, protesters are criminalized Conditional Suspension of Procedure (Probation). This gy, even though they have no such intent. In Colombia peasants during the eviction remain unpunished, but for legitimate conduct that is inherent to social protest. mechanism allows alternatives and averts the need to as well, the offense of blocking public roads is used to more than a dozen people who occupied the vacated The primary effects of using criminal law to prosecute go to trial, but requires acknowledgment of the events. bring criminal charges against protesters. In March lands were sentenced in a criminal trial full of irregulari- protest are the disbanding of social organizations, causing The accused opt for accepting this escape route to 2013, 77 people were arrested and 11 of them prosecut- ties. In other cases, social leaders have been prosecuted additional strain on their fi nancial resources, stigmatizing conclude proceedings as quickly as possible. But this ed for this crime for participating in the Valle de Toledo after organizing or participating in acts of protest, with those who stand accused, and discouraging actions that also has consequences in that any discussion of merits protests in opposition to the construction of a new dam. the objective of punishing them or restricting their is avoided, and the conduct of the accused is never seek to demand compliance with their rights. In July 2013, the public prosecutor brought charges capacity to organize new demonstrations. submitted to judicial analysis. against 70 people who participated in a mining strike on In Colombia, an emblematic case is that of indigenous the Cali road for “disrupting public transit service.” In Even though in general the protagonist in this trend is leader Feliciano Valencia, leader of the Cauca Indigenous Paraguay, a case was brought against rural leader the judicial branch, all branches of government usually Regional Council (CRIC in Spanish), who was prosecut- Maguiorina Balbuena for cutting off a road in protest of concur, by act or omission. In Brazil, for example, after What are protesters being accused of? ed and sentenced by the Popayán Superior Court to 18 the impeachment of then President Fernando Lugo, mass protests in 2013, the Ministry of Justice and years in prison for the crime of abduction in September It is common for the right to protest to be prosecuted applying Article 218 of the Paraguayan Criminal Code Secretariats of Security in the states of São Paulo and 2015. The proceedings started in the context of the using existing categories in the criminal code. In these on “dangerous interventions in land transit.” Rio de Janeiro pushed for stiffer sentences for crimes 2008 Minga Social Indígena event, in which nearly cases, protesters do not remain in custody for very long, like arson, property damage and injury during 30,000 indigenous people took part. During the march, although there have been cases in which they were held demonstrations or when the victims are military police. • Resisting authority, insults and contempt indigenous authorities found an army corporal attempt- in pre-trial detention. In other situations, criminal offens- This state reaction ignored the evidence of arbitrary or ing to infi ltrate the mobilization and then proceeded to es that establish stiffer sentences, such as usurpation, In Paraguay, the crime of resisting authority is invoked illegal functioning of the judicial branch against protest- detain him and sanction him to numerous “spiritual are applied. The most serious cases involve the applica- constantly by the police and the Public Prosecutor’s ers and sought to expand its powers even more. lashings,” facts that the court qualifi ed as abduction and tion of criminal offenses for which the toughest sentences Offi ce. Defi ned as “resisting or physically assaulting an Another common pattern in the region is judicial selectiv- torture. And even though Valencia did not take part in in the legal system are handed down, such as conspir- offi cer or other person offi cially in charge of executing ity when it comes to accusing, and the asymmetrical detaining the soldier, and indigenous jurisdiction is acy, abduction, extortion and terrorism. The main laws, decrees, sentences, judicial provisions or resolu- progress of cases. This is clearly evident when we recognized under the Constitution, the charges were criminal categories applied in Latin America are: tions in the course of performing those duties,” it is 38 LATIN AMERICAN STATE RESPONSES TO SOCIAL PROTEST CHAPTER 3: CRIMINALIZATION OF PROTEST 39

used against protesters when they react to arbitrary or • Squatting and usurpation violent arrest. Occupying real estate is a common strategy for The crime of contempt, which the Inter-American demanding the right to housing or denouncing the public Commission on Human Rights considers incompatible use of a property. In this sense, occupation of a building with the American Convention, remains in force in or land and resistance to eviction are forms of protest. Brazil’s Criminal Code. This type of offense is applied It is often the case that participants in this type of indiscriminately and frequently used in response to confl ict in urban and rural environments are accused verbal complaints about police action when apprehend- of the crime of usurpation and forced to go through ing protesters. Often this crime is applied along with long criminal proceedings. Paraguay is a paradigmatic others, such as threat, resistance and disobedience. example: the leaders of evicted rural communities are Protesters in numerous cases have been arrested and usually investigated for squatting. Originally, this type accused of contempt for having denounced violent or of crime applied if persons “settled” on the property, illegal acts by police. In other situations, the police have and the penalty was a maximum two years in prison. given abusive orders, such as forcing protesters to In 2008, it was amended to enable criminal prosecution remain standing in the same position for long periods from the moment someone enters the property, with of time, threatening to charge them with contempt if an aggravating penalty if they do so “with the intent to they fail to comply. settle.” In this way, its use was expanded to criminalize In Mexico, something similar occurs with the application the rural movement. of the crime of insulting a public authority. In March 2016, the Supreme Court of Justice in that country declared this article of the Criminal Code unconstitution- • Incitement and conspiracy to commit a crime al; regardless, the criminal category has remained and Protesters or social leaders in different countries of the continues to be used against persons who protest. region have been charged with criminal conspiracy and incitement due to protests, strikes or occupations. In Venezuela, Rubén González, the secretary general of a • Disturbing the peace and public order state-company union, was sentenced for several crimes, In Paraguay, disturbing the peace – aimed at punishing including incitement to commit a crime after leading a those who commit or instigate “violent acts” – is one of strike. In Mexico, after protests on November 20, 2014 the criminal categories most commonly used in cities. over the disappearance of students from Ayotzinapa, In addition, conduct that “increases the willingness” of the Assistant Special Prosecutor for Organized Crime other protesters to commit violent acts is also penalized. Investigation brought criminal charges against 11 young The vagueness of these defi nitions enables the Public people, mostly students, accusing them of conspiracy; Prosecutor’s Offi ce and the judicial branch to interpret they were held in custody for ten days in maximum-se- this offense in the broadest sense, to the detriment of curity detention facilities. In Paraguay, rural residents people’s right to protest. were charged with conspiracy in the case of the Curuguaty massacre. According to the accusation, the On December 1, 2012, dozens of people were charged commission created to request granting of the lands with the crime of attacks on public peace and were was formed to commit crimes, even though in Paraguay arbitrarily arrested during a day of protests against neighborhood commissions are an administrative President Enrique Peña Nieto in Mexico. Fifteen requirement for land claims brought before the National protesters were arrested during demonstrations in Institute for Rural Development and Land. Mexico City on November 20, 2014 and turned over to the Public Prosecutor’s Offi ce, which charged them In Peru, between May and June 2015, the Public with “attacks on the public peace” and “possession of Prosecutor’s Office began investigations into the objects apt for assault.” offense of conspiracy to commit a crime and money-laundering against local leaders and authorities In Chile, there are three different categories of “public from the Valle del Tambo in Arequipa who protested disorder,” defi ning it as a misdemeanor, punishable by against a mining project by the transnational company up to fi ve years in prison, or a felony, with up to ten Southern Peru, under the hypothesis that the social years. This situation gives public agents the discretion organizations promoting the protests are a means to to decide how to categorize conduct by protesters. commit crime, and that fi nancing for the protests came . from illegal sources. 40 LATIN AMERICAN STATE RESPONSES TO SOCIAL PROTEST CHAPTER 3: CRIMINALIZATION OF PROTEST 41

In Brazil as well, the crime of conspiracy is used to Surveilling the criminalize protest. The use of this criminal offense was particularly intense after a protest by Rio de Janeiro communications of teachers in October 2013, when 190 people were arrested and 84 put in pre-trial detention for “conspira- members of social cy.” Their crime was having participated in the protest. In 2014, 19 demonstrators were arrested during the organizations and soccer World Cup and accused of “armed conspiracy” for the mere possibility that they might commit acts of movements is a violence: based on surveillance of those planning the protests, a judge concluded that there were “serious trend related to the indicators they were planning acts of extreme violence” and that “police action was necessary to prevent that criminalization of objective from being carried out.” The protesters obtained a court order for them to stand trial in liberty, protest and social but on the condition that they not participate in other protests. In addition, four activists from the Sin Tierra confl ict common to Movement were remanded to pre-trial custody after participating in an occupation in the Santa Helena de many Latin American Goiás municipality in the context of a land title dispute in 2015. Among the accusations lodged against them: countries. forming a criminal conspiracy.

• Extortion acts” applied, for example, to cases in which a In Colombia, the Citizen Security Law introduced In Peru, the crime of extortion encompasses the community threatens to stop fumigations or demands procedural norms that contradict guarantees. While the occupation of premises, obstructing transportation compliance with environmental regulations. Constitution states that a person may not be deprived routes and streets, and disrupting the functioning of of liberty without a court order except in cases of in public services to obtain “any benefi t or advantage” from fl agrante delicto, the law relativizes this in establishing the authorities. This crime has a penalty of between fi ve that this legal concept shall apply “when the person who and ten years in prison, and as much as 25 years if two Procedural guarantees in jeopardy commits the crime is recorded on video or is in a vehicle or more people participate in the act. This expanded The trend of bending procedural guarantees in protest in which a crime was just committed.” In Paraguay, criminal category is used recurrently when police contexts is refl ected in the frequency with which security numerous forced evictions of rural communities have detentions take place or prosecutors open investiga- forces arbitrarily arrest protesters and in the indiscrimi- been carried out without court orders, based on the tions. Its broadness allows any act of protest that nate authorization of phone tapping and surveillance of argument that the property is being occupied, the in creates obstacles to transportation routes or traffi c to the digital communications of persons involved in social fl agrante nature of the act thus warranting intervention be criminally prosecuted. The objective of obtaining an confl icts. This is what occurred recently in Brazil, where and the arrest of participants. advantage “of any kind” presupposes the possibility of activists were prosecuted for information gathered from fi ling charges for this crime against anyone who protests In Peru, there was a change in territorial jurisdiction for social networks. in defense of demands or rights. The crime of extortion legal proceedings that criminalized social protests. furthermore contains sanctions for public offi cials who Moreover, collective charges that do not separate the Administrative Resolution 096-2012-CE-PJ, issued by participate in strikes. conduct of individuals from a group of persons arrest- the Chief Justice of the Judiciary, moved judicial ed at the same time during a protest violate the right investigations and cases against peasants, social Similarly, in Paraguay the criminal offenses of coercion to defense. leaders and local authorities regarding protests against and duress are commonly applied during demonstra- mining projects to faraway locations – up to 20 hours tions by rural communities to sanction the act of Another common trend can be seen in legal actions away – from the place they occurred. This served to “severely forcing” another to “do, not do or tolerate based exclusively on the testimony of police agents. This limit access to justice for persons of limited means. something they do not want.” When this is done “by generally happens in cases against demonstrators as Public authorities who supported the protests were threat endangering life or physical integrity,” the penalty well as those aiming to attribute responsibility to state remanded to pre-trial custody. is aggravated. The Public Prosecutor’s Offi ce applies agents for abuses committed. For example, in Brazil this crime to the act of not allowing people to enter an organizations have reported that in more than 70% of area or blocking a street. These types of crimes are often in flagrante delicto cases, the only witness was a compounded by the offense of “threats of punishable member of the security forces. 42 LATIN AMERICAN STATE RESPONSES TO SOCIAL PROTEST CHAPTER 3: CRIMINALIZATION OF PROTEST 43

Surveillance and intelligence defender from the city of Esquél in the province of VENEZUELA Chubut reported the existence of files containing Surveilling the communications of members of social information on the activities and political stances of organizations and movements is a trend related to the journalists and activists. The fi les had been given to the The use of military justice criminalization of protest and social confl ict common to Public Prosecutor’s Offi ce by a federal intelligence agent many Latin American countries. Illegal espionage, video regarding a case of usurpation against the Mapuche recordings, phone tapping and geo-localization pose community. The agent was prosecuted for violating the serious threats to rights such as free association, intelligence law, but it is still not known who gave the assembly, free speech and privacy, which are constitu- order to compile the information. These practices occur In Venezuela, the criminalization of military compound of Ramo Verde tionally recognized by states and under international despite the fact that information produced solely on the protest has reached alarming levels in the state of Miranda, more than human rights treaties. basis of ideological factors is prohibited in Argentina. with the use of military justice to 370 miles (600 km) from his place Brazilians have denounced police tracking of Internet The weak oversight and supervision of intelligence penalize protesters. Since 2012, of origin. pages and social networks in which protest information activities combined with the secrecy and proliferation of military jurisdiction began to be The Venezuelan Constitution clearly is spread, as well as phone tapping of protesters and state agencies with the capacity to carry out intelligence used to incarcerate members of The United Nations Human states the limits between military lawyers. For example, in Rio de Janeiro on the day activities are factors that facilitate the persistence of indigenous and union movements Rights Committee recommend- and ordinary jurisdiction. before the World Cup fi nal in June 2014, there were such practices, despite being prohibited in many cases. defending their rights in protests ed that the Venezuelan state Nevertheless, military judges, even pre-trial prison orders against 28 people, including two adopt the necessary measures mounted close to military teenagers; 19 people were arrested and accused of at the highest instances, continue to prohibit civilians from being compounds, state companies or armed conspiracy for having organized acts against the to apply criteria that replaces tried under military jurisdiction. public entities considered to be World Cup. In this case, the criminal prosecution ordinary jurisdiction with military. security zones. Military facilities are focused on those who had created the events on social Despite the fact that military justice also frequently used to hold networks, setting the time and place for the protest. is only for military personnel and its persons arrested during Furthermore, criticism on social networks of police application to civilians a violation of action was considered incitement to crime. Even more demonstrations in custody. human rights, this has been a serious, the data collected from social networks was In August 2012, fi ve workers were regular practice in the country since used to tap the phones of 38 people and monitor 60 Facebook profi les, including one belonging to a human arrested in the Venezuelan state of the 1960s, when it was applied to rights organization, on the grounds that “it is diffi cult to Táchira for protesting a breach of persons classifi ed as subversive. contractual commitments by a obtain satisfactory proof as to the criminal responsibility The practice became more evident of those who commit crimes in protests.” In the end, company hired to build housing as of 1999, even though the those arrested were released but required to comply units on the Fuerte Murachí military Constitution of 1961 stated with a series of measures, including the prohibition to compound. The union members unequivocally that every person is participate in public demonstrations, a condition that were charged by the 11th Military entitled to trial by an impartial judge clearly goes against constitutional guarantees and Tribunal Criminal Circuit Court and in the proper jurisdiction. The human rights agreements. The legal proceedings against held in the Department of Military the protesters remain open. Criminal Chamber of the Supreme Convictions in the Santa Court authorized the application of In Peru, in July 2014 the Quechua Indigenous Federation Penitentiary. The military judge military justice in some cases of Pastaza discovered that three police offi cers had ordered deprivation of liberty and against civilians, contradicting the infi ltrated their communal assembly in the context of an accused them of insulting the guard Constitution and human rights indigenous strike demanding dialogue with the govern- and the Bolivarian National Armed treaties. In July 2015, the United ment over contamination of Amazon territory attributed Forces (FANB in Spanish). In to the company Pluspetrol. Nations Human Rights Committee February 2016, seven people were expressed in its fi nal recommenda- In Argentina, there have been reports of illegal espionage arrested after protesting while tions to the Venezuelan state that it activities involving offi cers from different security and standing in line to obtain food on should adopt the necessary legisla- intelligence forces. In 2012, it was discovered that the “La Zamorana” missions base tive measures, or others, to prohibit offi cers of the national Gendarmerie had infi ltrated picket in Chirgua. A citizen was accused civilians from being tried before lines and mobilizations, posing as journalists to obtain of the crimes of “insulting a guard, information on the protests. During the investigation of military tribunals. damage to a military asset and theft this claim, the Gendarmerie was found to have collected of a weapon for the purpose of information that had nothing to do with crime prevention between 2004 and 2012. Furthermore, in 2015 a public thwarting.” A military tribunal ordered him to be imprisoned in the 44 LATIN AMERICAN STATE RESPONSES TO SOCIAL PROTEST CHAPTER 4: IMPUNITY OF POLICE VIOLENCE 45 chapter 4 Impunity of police violence 46 LATIN AMERICAN STATE RESPONSES TO SOCIAL PROTEST CHAPTER 4: IMPUNITY OF POLICE VIOLENCE 47

chapter 4 Impunity of police violence

Action by the public bodies that should investigate and protocols lies in these functions they fulfi ll. protest, barely managed to affect one police offi cer. sanction police violence and repression during In nearly all these In Argentina, the trial for the death of protesters caused In Mexico, data from the Special Prosecutor’s Offi ce for demonstrations refl ects different problems summed up by police action during the mass protests in the city of countries, even when Attention to Crimes Against Freedom of Speech in two trends: excessive delays in investigation and Buenos Aires in December 2001 did not get underway (FEADLE in Spanish) shows that, between 2010 and insufficient progress toward assigning criminal until 2014. In May 2016, for the fi rst time in Argentina, direct responsibility is 2015, out of a total 705 preliminary investigations, only responsibility. the judiciary found political offi cials criminally responsible determined for deaths 84 were fact-fi nding inquiries. In other words, only Irregularities, obstacles, delays and omissions that do for the consequences of the order to repress a social 11.9% of cases made it to that judicial instance. As of not allow for proper legal protection are common in Latin protest. The appeal proceedings before the Appeals and injuries in social early 2016, there had still been no sentencing. Chamber and the Supreme Court will extend the process America. In a great number of cases, the investigations In Paraguay, the Specialized Unit on Punishable Acts for several more years. protest situations, the are inadequate; in many others, nil. Frequently, neither Against Human Rights was created in 2011 under the the material perpetrators nor those politically responsible The disparity between progress made in cases against judicial proceedings domain of the Public Prosecutor’s Offi ce. At that time, are identifi ed and there are no sanctions. People who protesters versus those that probe the responsibility of human rights organizations considered the increase in have gone through violent situations do not usually state agents is a generalized trend in the region. In rarely reach the point of resources for investigating rights violations to be positive. receive proper attention from state institutions Venezuela, according to the Public Prosecutor’s Offi ce, analyzing the conduct However, today structural defi ciencies are notable: afterwards. In addition, they must face long criminal 3,351 persons were arrested in 2014 in the context of investigations are prolonged, work is sporadic, victims proceedings and numerous obstacles in the way of demonstrations and put to trial. Of these cases, there of the police or political are often questioned, statements are often not taken receiving redress. The lack of a proper state response were 911 fi nal decisions involving 2,844 people. The from witnesses, and the versions told by security force has psychological, social and economic consequences Public Prosecutor’s Offi ce also informed that 878 people o cials who were in agents are given too much weight. that increase the damage and lead to an ongoing were injured during the protests, and that in the same process of re-victimization. charge of operations. In nearly all these countries, even when direct respon- year it had denounced 30 security force offi cials for sibility is determined for deaths and injuries in social Both criminal and administrative investigations tend to presumed violation of fundamental guarantees, including protest situations, the judicial proceedings rarely reach be slow and fail to attribute responsibility when it comes cases of homicide and cruel treatment. However, the the point of analyzing the conduct of the police or to the use of force in protest situations. In contrast, the Prosecutor’s Offi ce does not provide details on the political offi cials who were in charge of operations. Most criminal system advances quickly in cases against social status of the investigations into these acts by offi cials. judicial agents are loath to consider the potential criminal leaders or protesters. The same trend can be observed in Peru in the prosecu- responsibility of those who plan, coordinate and give orders. Thus, many investigations are limited to Many of the obstacles in the way of investigating police tion of violence that occurred in the conflict in the determining who was responsible for the fatal shots and abuses, and not only the ones that occur in protest Amazonian province of Bagua. In 2014, a trial got do not analyze if, for example, the order to repress situations, are attributable to resistance by court offi cials underway against 53 people, including indigenous issued by the chief of operations should be sanctioned. to investigate members of security forces with whom authorities, who participated in a protest in 2009. The they have close, daily relationships. At other times, prosecutor accused them of killing police agents, inciting The norms regulating the professional police system police authorities make judicial work diffi cult by restrict- the seizure of offi cial fi rearms, disturbing the peace, generally indicate that superior offi cers should exercise ing or delaying access to information. mutiny and disruption of transportation services. At least control and command of their subordinates. This means 23 of the accused are members of the Awajún-Wampis they must verify what type of weapons are used, direct When it comes to investigating violence or abuses, indigenous people, who were interrogated by police the movement of offi cers involved and try to ensure that action protocols acquire special importance in that they without the presence of a translator. The prosecutor if abuses occur, the scene of the events is preserved for establish correct conduct and are therefore essential for requested life sentences for seven of them. Meanwhile, the purposes of investigation. The violation of these sanctioning violations of duties. They are also useful in the criminal investigation over the ten deaths and duties should be criminally sanctioned. However, this criminal investigations, particularly with regard to numerous injuries suffered by indigenous and mestizo does not often happen. determining guilt or negligence. Resistance to these people, attributable to police action during the same 48 LATIN AMERICAN STATE RESPONSES TO SOCIAL PROTEST CHAPTER 4: IMPUNITY OF POLICE VIOLENCE 49

For example, in the Federal District of Mexico, the prosecutor’s office has not brought before the judiciary any prior investigations for crimes commit- ted by public security officers against journalists and citizens documenting demonstrations, nor has it investigated police commanders who, by act or omission, allowed the abuses. In some countries, laws have been passed granting impunity for the abusive use of force by security forces. This is the case of a reform to the Peruvian Criminal Code in 2014 that “exempts from criminal responsibility those personnel who, while in the line of duty and use of their weapons or other means of defense, cause death or injury.” This law was applied by a criminal judge of fi rst instance to absolve four police offi cers accused of killing three young people, including a 14 year old, and injuring another 12 people during a student protest in the city of Huancavelica. In Colombia, a constitutional reform promoted by the Ministry of Defense in 2015 determined that, in the investigation and prosecution of police conduct deemed punishable “in relation to an armed confl ict or a confron- tation that meets the objective conditions under International Humanitarian Law, the standards and principles of the latter shall apply.” The reform absolves members of the public forces of criminal responsibility for the homicide of civilians in certain cases. The vague category of “confrontation that meets the objective conditions” can weaken the conditions for access to justice in cases of police violence, including in the context of social protest. 50 LATIN AMERICAN STATE RESPONSES TO SOCIAL PROTEST CHAPTER 4: IMPUNITY OF POLICE VIOLENCE 51

Administrative investigations to the Carabinero officers themselves, who have and sanctions disciplinary powers over their subordinates and make inquiries and resolutions at their own discretion. The In terms of administrative oversight and discipline, police National Human Rights Institute (INDH in Spanish), in its corps and security forces in the region are usually assessment of the institutional response by the supervised by offi ces of internal affairs, an ombudsman Asymmetry in the progress Carabineros to the pressure and violence allegedly or other control mechanisms. These administrative exercised by offi cers against Mapuche persons between of judicial cases structures have a mission to investigate and determine 2004 and 2011, confi rmed that only eight out of 62 if a police official infringed the rules of conduct. The investigations of people who participated in reports against offi cials were investigated and only two Intervention by these areas in cases of repression of marches, occupations, roadblocks or sit-ins were elevated to the level of inquiry. social protest shows a marked disinterest in moving have had very different results from the cases disciplinary processes forward, which thus also usually In general, regulations that apply to disciplinary process- that investigate police responsibility for violent leads to impunity. es offer few opportunities for intervention by the victims evictions, repression and death. or their families. In Argentina, in contrast to what In some countries, the sluggishness of the judiciary is happens in criminal proceedings, disciplinary proceed- used as an excuse for inaction in the administrative ings do not take the plaintiff or injured party into account. arena. In truth, there are no reasons to justify turning the Paraguay The disciplinary case is always between the public 2 disciplinary process into an appendix of what is resolved administration and the public offi cial. The victim is often CURUGUATY MASSACRE in a criminal case, since both processes are aimed at 201 denied access to the disciplinary fi le and not given the establishing different types of responsibility. During a land eviction, a total of 17 peasants and possibility of producing evidence or filing claims. police offi cers died. Nevertheless, in Argentina, it is often the case that those Furthermore, the channels for filing reports due to Impunity continues for those responsible for the death in charge of leading internal investigations delay their irregularities are often scarce or not clearly communi- of nine peasants. cated. In Chile, for example, when an administrative 11 peasants who had occupied the evicted lands were progress, do not gather evidence, and are only convicted in a criminal case riddled with irregularities. concerned with whether the criminal proceedings go inquiry is ordered, due diligence is done in secret, forward or not. Given this panorama, administrative blocking participation by the police officials under inquiries can remain open for decades, long after the investigation or the victims. police in question have retired from active duty. In the In some countries, after events in which there has been Argentina homicide of Mariano Ferreyra, a young activist from the an excessive use of force by police personnel, not only Workers’ Party killed during protests in 2010 by a group 0 INDOAMERICANO PARK do they not open internal investigation procedures, but from the Railroad Union in complicity with the Federal Two people were killed by police bullets on December 3 the political authorities and high commanders of the Police, the police offi cers were convicted in April 2013. 201 during an eviction of the park, which had been occupied. security forces congratulate the police for their work. The police involved in the operation have That sentence was upheld in September 2015, but the not yet been tried. disciplinary inquiry against the offi cers remained open Impunity is a message that guarantees the persistence The social leaders who participated in the occupation as of mid-2016. of practices that violate human rights. At the same time, were tried on charges of having organized it: if there are no effective systems for assessing adminis- In Colombia, there were no criminal sanctions for the they were acquitted but had to live through the trative responsibility, it is less likely that police action human rights violations committed during the National process of criminalization. protocols, if there are any in place, will function effectively Agrarian Strike in 2013. Thirty disciplinary investigations as instruments for regulating conduct. were opened; 77% are still in the preliminary inquiry Peru stage, i.e. there is no one person tied to them. States have the obligation to guarantee access to BAGUA MASSACRE justice for human rights violations. For this to occur, it In Paraguay, the Paraguay Human Rights Coordinator is essential that legal mechanisms be effective and that When a massive roadblock over an environmental (CODEHUPY in Spanish) network requested that procedures be framed in terms of due process and confl ict was broken up, 33 people (demonstrators and administrative inquiries be opened to investigate conduct 2009 expedience. At the same time, institutions must have police offi cers) died. by police offi cers in protest situations; they did not 53 people were tried, including indigenous leaders. the necessary resources and, especially, properly receive any response from the Ministry of the Interior, to They were ultimately acquitted. trained personnel. The criminal investigation over the 10 deaths and which the National Police reports. Nor have they had numerous injuries suffered by indigenous and mestizo word regarding sanctions applied against police involved people, due to police action, only affected one offi cer. in situations of rights violations. In Brazil, the situation is characterized by the lack of institutional and political autonomy of the Military Police’s internal control organ, which is responsible for receiving reports of abuse committed by security agents. The scenario is similar in Chile, where investigations into breaches are delegated 52 LATIN AMERICAN STATE RESPONSES TO SOCIAL PROTEST CHAPTER 4: IMPUNITY OF POLICE VIOLENCE 53

COLOMBIA CHILE

Protocol for social protest in Bogotá Student protests demanding free, quality public education

There has been positive progress non-regulation “non-lethal” The year 2011 was marked by the police offi cer implicated was with regard to the regulation of social weapons. Furthermore, it requires protests in Chile over an education prosecuted through the military protest in Bogotá. The city mayor police agents to identify themselves. model designed during the military justice system and sentenced to approved a decree in November dictatorship (1973-1990) and three years probation. The measure takes precedent from 2015 establishing an “Action maintained by subsequent an October 2013 hearing of the To discredit the demands, national Protocol for Social Mobilizations in democratic governments. The Inter-American Commission on authorities accused student leaders Bogotá: The Right to Mobilization Chilean education system is largely Human Rights and a similar forum in of disturbing public order and and Peaceful Protest.” private and, therefore, organized the Colombian Congress, which led promoting violence. Nevertheless, based on profi t and favors inequality. The decree created a District to the campaign “Defending the majority of the population High school and university students Roundtable to monitor the exercise freedom: everybody’s business” and remained in favor of the protests. At were demanding free, quality public of the rights to freedom of speech, an agreement with the mayor of the time, the students were able to education and asking for a constitu- assembly, association and social Bogotá to establish an action put education at the top of the tional reform to guarantee this right. mobilization. The roundtable is protocol for security forces during political agenda prior to the legisla- During the protests, which lasted composed of district authorities, protests. The district administration tive elections and managed to gain months and involved millions of police and civil society organiza- that took offi ce in January 2016 seats in Congress. people, there were marches, strikes, tions. Its mission is to formulate questioned the protocol and has occupied buildings, pot-banging recommendations to the authorities plans to modify it. Nevertheless, it is rallies, roadblocks and artistic for the proper protection of rights. It a signifi cant milestone with regard interventions. also grants civil society commis- to the prevention of human rights sions powers to observe how violations during demonstrations. The government of Sebastián Piñero mobilizations develop and coordi- prohibited the demonstrations and nate with authorities actions curtailed the right to assemble. With intended to protect rights, such as these decisions came the justifi ca- oversight of police conduct, the tion for the use of police force, mass conditions for arrest and with regard arrests, repression with anti-riot to work done by the press. gear and chemical agents, and violence against those detained. The decree regulates action by According to the annual report by security forces and establishes that the National Human Rights Institute, their mission is to protect the rights on August 4, 2011 alone, there were of people who take part directly or 308 detentions during two unautho- indirectly in mobilizations. With rized demonstrations in . Of regard to the use of force, it those, there are records of only six stipulates that this must be used as people formally processed in a last resort, and strictly prohibits Santiago. During another of the the use of firearms, other potential- 2011 demonstrations, 14-year-old ly lethal weapons and Manuel Gutiérrez was shot to death: 54 LATIN AMERICAN STATE RESPONSES TO SOCIAL PROTEST CHAPTER 1: LEGAL AND ADMINISTRATIVE RESTRICTIONS 55 conclusions Transforming state responses 56 LATIN AMERICAN STATE RESPONSES TO SOCIAL PROTEST CONCLUSIONS 57

A democratic response by states to The common reality across Latin and association and on extrajudicial, Transforming confl icts and social protests involves a America is that states usually respond summary or arbitrary executions” state responses commitment to guarantee the rights to by using force to contain and control and the chapter on “Use of Force in assembly, petition, speech and partici- rallies. This is apparent in the analysis Social Protests” in the 2015 IACHR pation. This principle of the legitimacy of regional trends in recent years. Annual Report. of protest entails two pillars. Repression and abusive use of force In a context largely characterized by First, in cases where protests articu- by police in their handling of protests, threats to the right to protest, it is late specifi c demands that can be met and the criminal prosecution of urgent that the state response to by the state or private entities, the protest participants and social social protest in Latin America be recognition of the petitioners’ right to leaders, have been going on for transformed. Throughout this publica- make claims should open up political years. In recent times, this has been tion, we have highlighted some channels capable of responding to the coupled with a new trend involving initiatives from the three branches and core issues. In this sense, the chief bills submitted and laws enacted to different levels of government that role of the state is to mediate between regulate the exercise of the right to sought to encourage a new paradigm opposing interests in a confl ict. freely protest, prohibiting actions or – adopting tools such as protocols, The second pillar is that security adding new offenses to criminal laws and judicial interpretations that operations in public demonstrations codes that apply to protest situations. protect rights – and that point to must be guided by principles of Recently, these trends have opened possible ways to achieve this. non-repression and the protection of a new line of work for regional and rights. The political design of these international human rights operations cannot be based on the mechanisms. The Inter-American notion that protests are a matter of Commission on Human Rights security or public order; the (IACHR) and the UN Human Rights mechanisms must guarantee the Council have devoted specific efforts exercise of rights and prevent to these issues, notable among situations of violence and confronta- which is the “Joint Report by the UN tion. This requires principles and Special Rapporteurs on the rights to standards focused on these objectives. the freedom of peaceful assembly Latin American State Responses to Social Protest - photos

Cover P. 1 P. 2 & 3 MÍDIA NINJA MÍDIA NINJA MÍDIA NINJA Demonstration on the day of the World Cup fi nal. Demonstration on the day of the World Cup fi nal. Indigenous leaders confront police repression. Rio de Janeiro, Brazil. 2014. Rio de Janeiro, Brazil. 2014. Brasilia, Brazil. 2014.

P. 4 & 5 P. 10 & 11 P. 14 & 15 P. 22 & 23 P. 34 & 35 MÍDIA NINJA MÍDIA NINJA RODRIGO ABD FABIOLA FERRERO MÍDIA NINJA SlutWalk. Who’s the Cup for? Operation made up of 1500 soldiers, A young man is detained by Venezuela’s Bolivarian Who’s the Cup for? Rio de Janeiro, Brazil. 2015. Rio de Janeiro, Brazil. 2014. police and marines. National Police during an opposition-led protest. Rio de Janeiro, Brazil. 2014. Madre de Dios, Peru. 2014. Caracas, Venezuela. 2016.

P. 38 P. 41 P. 44 & 45 P. 48 & 49 P. 54 & 55 RAMÓN CAMPOS IRIARTE MÍDIA NINJA SUBCOOP JAVIER GODOY MAURICIO PALOS 60 000 indigenous people of the Nasa Reoccupation of the Skoll- Complexo do Eviction of the 13 de mayo settlement. Student march demanding free, March by the #YoSoy132 movement and ethnicity marched to Bogotá to demand Alemão favela. Itapuá, Paraguay. 2009. quality education. numerous social organizations against the property rights over the communities’ Rio de Janeiro, Brazil. 2016. Santiago, Chile. 2011. presidential candidacy of Enrique Peña Nieto. ancestral lands. Mexico City, Mexico. 2012. Bogotá, Colombia. 2008.

2017 SOCIAL PROTEST SOCIAL