57
is time-barred”, arguing that the applicants allowed the thirty days to elapse
after they became aware of the act, without submitting the remedy. That
Court concluded, in this regard, that the concession was signed on March 13,
1996, and that the applicants were aware of the concession shortly after it
was signed;43
s.
indigenous communities in Nicaragua have received no title deeds to land
since 1990;44
t.
on October 13, 1998, the President of Nicaragua submitted to the National
Assembly the draft bill “Organic Law Regulating the Communal Property System of
the Indigenous Communities of the Atlantic Coast and BOSAWAS”, which sought to
“implement the provisions of [a]rticles 5, 89, 107, and 180 of the Constitution”
because such provisions “require the existence of a legal instrument which
specifically regulates delimitation and titling of indigenous community lands, to give
concrete expression to the principles embodied in them”45. At the time this Judgment
is issued, the aforementioned draft bill has not yet been adopted as law in Nicaragua.
VIII
VIOLATION OF ARTICLE 25
Right to Judicial Protection
Arguments of the Commission
104.
Regarding article 25 of the Convention, the Commission alleged that:
a)
despite the fact that the institution of amparo has been protected by
the Constitution of Nicaragua (articles 45 and 188) and by Nicaraguan
legislation (Law No. 49 or Amparo Law), it has been absolutely ineffective to
prevent the State from allowing the foreign firm SOLCARSA to destroy and
exploit the lands which for years have belonged to the Awas Tingni
Community;
b)
the applicants resorted to the jurisdictional body established by law to
seek legal remedy to protect them from acts which violated their
Constitutional rights. The jurisdictional body must give reasons to support its
conclusions, and it must decide on the admissibility or inadmissibility of the
43
cfr. judgment No. 163 of October 14, 1998, by the Constitutional Court of the Supreme Court of
Justice of Nicaragua, on the amparo remedy filed by María Luisa Acosta Castellón, as legal representative
of Benevicto Salomón Mclean, Siriaco Castillo Fenley, Orlando Salomón Felipe and Jotam López Espinoza,
on their own behalf and as Syndic, Coordinator, Town Judge, and Person Responsible for the Forest,
respectively, of the Awas Tingni Community, against Roberto Stadhagen Vogl, Minister of MARENA,
Roberto Araquistain, General Director of the National Forestry Service of MARENA, Jorge Brooks Saldaña,
Director of the State Forestry Administration of MARENA, and Efraín Osejo et al., members of the Board
of Directors of the Regional Council of the RAAN.
44
cfr. testimony of Marco Antonio Centeno Caffarena before the Inter-American Court on
November 17, 2000; testimony of Charles Rice Hale before the Inter-American Court on November 17,
2000; testimony of Galio Claudio Enrique Gurdián Gurdián before the Inter-American Court on November
17, 2000; and “General diagnostic study on land tenure in the indigenous communities of the Atlantic
Coast. General framework”, March, 1998, prepared by the Central American and Caribbean Research
Council.
45
cfr. October 13, 1998 brief by Arnoldo Alemán Lacayo, President of the Republic of Nicaragua,
to Noel Pereira Majano, Secretary of the National Assembly; October 13, 1998 bill “Organic Law
Regulating the Communal Ownership System of the Indigenous Communities of the Atlantic Coast and
BOSAWAS”; and official letter DSP-E-9200-10-98 of October 13, 1998 by the Secretary of the Presidency
of the Republic of Nicaragua to Noel Pereira Majano, Secretary of the National Assembly.