58
legal claim which originates the judicial remedy, after a procedure in which
evidence is tendered and there is debate on the allegation. The legal remedy
was ineffective, since it did not recognize the violation of rights, it did not
protect the applicants in the rights affected, nor did it provide adequate
reparation. The court avoided a decision on the rights of the applicants and
hindered their exercise of the right to legal remedy pursuant to article 25 of
the Convention;
c)
almost a year after the second amparo remedy had been admitted, the
Supreme Court of Justice ruled against that remedy without deciding on the
merits, arguing that the applicants only objected to the initial granting of the
concession, and that Court reached the conclusion, in this regard, that the
remedy was time-barred, when actually the remedy objected to the lack of
response to the territorial claim by the Community and the “alleged”
ratification of the concession by the Regional Council of the RAAN in 1997;
d)
judicial protection pertains to the obligation of the States parties to
ensure that the competent authorities comply with judicial decisions, pursuant
to article 25(2)(c) of the Convention. However, in the only case included in
the facts in this proceeding, in which there was a ruling on the amparo
remedy, the State ignored the judicial decision issued in favor of the
indigenous communities, thus breaching the abovementioned article of the
Convention. Furthermore, the decision of the Supreme Court of Justice was
based on omission of the procedural requirement set forth in article 181 of the
Constitution, and it did not protect property rights regarding the area under
that concession;
e)
the Nicaraguan authorities should have complied with the February 27,
1997 judgment in a timely manner and, therefore, they should have urgently
and rapidly suspended any act which had been declared to be
unconstitutional, so as to avoid that SOLCARSA cause irreparable damage in
the lands of the Awas Tingni Community. However, they did not proceed in
this manner. For two years, the Community suffered the continuation of a
logging concession which negatively affected their traditional land tenure and
their natural resources;
f)
the Commission was informed on May 6, 1998 of the suspension of the
concession granted to SOLCARSA, a year and a half after the Supreme Court
of Justice had ordered that suspension and after the Commission adopted the
Report pursuant to article 50 of the Convention;
g)
The response of Nicaragua to the Report by the Commission
constitutes an acceptance of international responsibility, insofar as it
recognizes its obligation, when it points out that it is in the process of
complying with the recommendations made in that report;
h)
Nicaragua does not allow the indigenous groups access to the
Judiciary, and therefore it discriminates against them;
i)
There is no effective procedure or mechanism in Nicaragua for
demarcation and titling of indigenous land, especially that of the Atlantic
Coast communities.
Lack of an effective mechanism for titling and
demarcation of indigenous lands is clearly visible in the case of Awas Tingni.
The complexity of the matter is no excuse for the State not to comply, for