6
processing of the merits of the case before it, by which it was informed that
explosive charges were distributed in Block 23.
11.
As to the obligation to investigate into the facts that gave rise to the adoption
of these provisional measures, the State informed that it requested the members of
the community to present a report regarding the complaints they filed for a follow-up
and, if applicable, to launch the investigations. Furthermore, the State sustained that
there are only two complaints before the Government Attorney’s Office of Pastaza
and that said complaints are filed given that it was impossible to identify the accused
people. However, the State argued that it seeks to declare the non-applicability of
statutory limitation to the crimes of torture, mistreatment and assault, according to
the terms of the Constitution of Ecuador, in order to conduct the investigations that
correspond in coordination with the Ombudsman. In that respect, the
representatives indicated that the progress is nonexistent and the Commission
emphasized what the State expressed as to the fact that “it has no updated
information and does not know all the investigations that needed to be launched,”
but that the State has, in effect, the information related to this measure.
12.
Moreover, the Court notes that no acts of violence had been recently reported
against the members of the Sarayaku Indigenous People, or acts that hindered the
access to the Borbonaza River. Furthermore, it valued the distribution of
beneficiaries’ cards to certain members of the Community, as well as the disposition
shown by the State in order to work together with the beneficiaries in the planning
and implementation of the provisional measures adopted and to be adopted.
However, it is relevant to require the State to present specific information on the
real benefits that those cards provide to the members of the Community; the
materialization of the surveillance posts; the security of the access roads to the
community; the current situation of the alleged inter-community conflicts in the area
and the feasibility of implementing other types of protection.
13.
In addition, the Tribunal values that the state authorities and the
representatives of the Sarayaku People had entered into agreements for the removal
of the explosive material and that the State has completed the first phase of removal
of explosives that were over the surface of the territory, of which the Sarayaku
community was informed and coordinated efforts were made to that end. However,
even though the State has given explanations about the delay in the adoption of this
procedure, it does not clearly justify the reasons why the implementation of said
procedure began more than four years after the Tribunal expressly ordered it (supra
Having Seen clause 3). Under the particular circumstances in which these provisional
measures were ordered, the protection of the right to life and human treatment of
the members of the Sarayaku Indigenous Community required and requires the
guarantee that the explosives will be removed from the territory where the
community is settled, given that this situation has hindered their freedom of
circulation and the use of the natural resources existing in the area. In these
circumstances, it is clear that the main concern, at this moment, is focused on the
current and potential risk that the existence of high explosives buried in their
territory implies for the Sarayaku community. On the one hand, the State has
expressed its disposition to continue with the next phase of removal of explosive
material buried in the territory, for which it pointed out two alternative procedures,
namely, the controlled denotation of the pentolite or its “precipitation”. On the other
hand, the representatives put forward the need to look for technical alternatives, for
which they referred to the relevance of searching the advice of other experts and, if
the indigenous community does not have means for that, they trust that the State
will support their search. That is to say, it is clear there is no agreement between