considered that the absence of an adequate and effective remedy to free the
community’s ancestral territory of encumbrances and to protect it had exacerbated the
conflictive situation that the State had been aware of since the failure to comply with
the first undertaking of December 13, 2001, and had increased the climate of tension
and violence in the area caused by third parties interested in the ancestral lands. The
Commission indicated that the community members had been victims of acts of
violence and threats that had been reported to the State authorities on various
occasions. The Commission indicated that the State had failed to conduct a
comprehensive investigation into the complaints, which were stalled, promoting a
situation of impunity. It concluded that the State had not provided evidence of a
serious, effective, diligent and prompt investigation aimed at discovering the truth and
determining responsibilities; therefore the presumed victims were left unprotected. It
is worth pointing out that the Commission did not include the alleged violation of
Article 8 (judicial guarantees) in its Merits Report (infra para. 284).
282. The representatives indicated that the Punta Piedra community and OFRANEH
had filed complaints regarding threats perpetrated by Rio Miel inhabitants, as well as
the murder of Félix Ordóñez Suazo, and the construction of a highway in the
community’s territory, but no serious investigation had been conducted in this regard.
Therefore, the representatives considered that “[…] the treatment that the state
authorities accorded to the threats and murder of members of the community” and the
fact that, to date, they had not “[…] opened the investigations,” also represented a
violation of Articles 8 and 25 of the Convention in relation to Articles 1(1) and 2 of this
instrument.
283. Regarding the criminal complaints filed by the Punta Piedra community and
some of its members, the State indicated that the investigations into the complaints
for the offense of threats against Paulino Mejía and land usurpation to the detriment of
Félix Ordóñez Suazo, had been inconclusive to date. Regarding the complaint
concerning the construction of a highway, it indicated that the offense of abuse of
authority had not been constituted because the construction had not been carried out
by any state official. Regarding the complaint of land usurpation to the detriment of
the whole Punta Piedra community, the State concluded that, to address the
occupation by third parties, who were also vulnerable and enjoyed the right to State
protection, the solution was not a criminal complaint, because the latter could request
acquisitive prescription. Lastly, regarding the murder of Félix Ordóñez Suazo, the State
argued that a preliminary investigation was underway against the presumed
perpetrator, and an arrest warrant had been issued against him that was pending
execution; therefore, the said investigations remained pending.
B.2 Considerations of the Court
284. The presumed victims’ representatives asked the Court to declare the violation
of Articles 8 and 25 of the American Convention. However, the analysis of Article 8 did
not form part of the Merits Report submitted by the Commission (supra para. 2.d).
Nevertheless, based on consistent case law on this matter, 303 when the representatives
alleged the presumed violation of Article 8 of the Convention, they referred to the
factual framework described by the Commission in its Merits Report; therefore, it is
pertinent for the Court to rule on this aspect.
303
Cf. Case of the Five Pensioners, supra, para. 155 and Case of González Lluy et al., supra, para. 37.
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