ownership […] of its ancestral property.” Moreover, it considered that the inexistence
of an effective remedy against the violations of the rights recognized in the Convention
constitutes in itself a violation of the obligations assumed by Paraguay thereunder. In
addition, it indicated that “the delay in the administrative action […] is due to the
systematically delayed and deficient actions of State authorities.” It insisted that, from
a procedural and substantive perspective, the Paraguayan legal framework has not
permitted or does not permit due recognition of the Community’s rights.
124. The representatives maintained that “the State has not changed its mechanism
for the restitution of indigenous territory,” despite the Court’s explicit directive in the
cases of the Yakye Axa and Sawhoyamaxa indigenous communities, so that, “in this
case, the same legal situation is argued [… against] a different indigenous community,”
when the ineffectiveness of the procedure established in Paraguayan law has
prevented the realization of the right to property. The representatives emphasized that
“the period of 20 years during which the case sub judice has been underway can
hardly be called reasonable.”
125. The State explained that, through its administrative courts, it has done
everything within its power to ensure that the Community can claim its rights, so that,
“[i]t would be unjust […] to conclude that Paraguay has violated the rights to judicial
protection and guarantees under a broad interpretive perspective.” It indicated that it
had taken specific measures to grant property titles to several different indigenous
communities. According to Paraguay, this reveals that “the system for the protection of
indigenous rights, as established in the laws in force, is perfectly compatible with the
Convention[; because] whenever there is consensus between indigenous peoples,
landowners and the State, it is perfectly possible to resolve the problems of lack of
access to the communal ownership of land.”
126. Based on these arguments, the Court will proceed to examine the due diligence,
the reasonable time, and effectiveness of the administrative procedure for claiming
indigenous traditional lands.
2.2.1. Due diligence in the administrative procedure
127. The Court observes that throughout the administrative action, which began in
1990, no significant measures have been taken. During the 17 years that the
procedure has lasted since the acceptance of the Court’s jurisdiction, an
anthropological study was requested,145 some meetings were held to try to reach an
agreement between the parties, and the private landowners and the Community
exchanged offers on at least five occasions.146 Before the acceptance of the Court’s
jurisdiction, two on-site inspections were carried out.147
145
The INDI asked the CEADUC to prepare a scientific report on the Community’s traditional lands. Cf.
Note P.C. No. 396/95 from the INDI President to the Director of the CEADUC dated August 22, 2005 (file of
appendices to the application, appendix 3, tome II, folio 734).
146
From 1990 to 1994, the Community insisted on the claimed lands, while the private owner offered
Retiro Winchester (Cf. Brief of the Community’s lawyer, Florencio Gómez Belotto, addressed to the President
of the IBR, of February 19, 1993, file of appendices to the application, appendix 3, tome III, folio 894;
Minutes No. 7 of the hearing between the parties held on February 11, 1994, supra note 117, folios 905 to
908, and offer of lands to the IBR for the Lengua, Sanapaná, and Angaité indigenous peoples of February 21,
1994, file of appendices to the application, appendix 3, tome III, folios 909 to 913). In addition, in November
1995, the private landowners offered, instead of the lands claimed, land in a sector known as Cora-í or,
alternately, in the area known as Potrero Pañuelo (Cf. Brief of the Eaton & Cía. S.A. lawyer of November 7,
1995, file of appendices to the application, appendix 3, tome II, folios 755 to 756). After a meeting in March
1996, the leaders of the Community offered to amend their request, by giving up part of the claimed lands,
and substituting them with land known as “Retiro Cuñata-í” (Cf. Brief of the representatives of the
Community of April 2, 1996, file of appendices to the application, appendix 3, tome II, folio 772). In 1998,
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