3
respectful of the rights of the indigenous communities, is aware of the defects.
Consequently, the 1995 constitutional reform defined the autonomy regime for the
ethnic communities and, in 1987, the Statute of Autonomy of the Atlantic Coast
Regions was enacted (Act No. 28) while, in 2003, the Act concerning the Communal
Property of the Indigenous Communities and Ethnic Communities of the
Autonomous Regions of the Atlantic Coast was promulgated (Act No. 445).
Moreover, it has created an office of the Special Adviser on Atlantic Coast Affairs
within the Presidency of the Republic, and the position is currently filled by one of
the persons who testified during the oral stage of this case.
11.
I have dissented from the operative paragraphs on pecuniary and nonpecuniary damage and reimbursement of expenses in favor of YATAMA and its
candidates, because they are not justified in the absence of human right violations.
Furthermore, even if a violation had occurred, this judgment constitutes sufficient
reparation, bearing in mind that the only expectation of the claimants was to take
part in the elections and that occupying public office, particularly the positions
disputed in these elections, constitutes a civic duty and an honor, and should not be
considered a source of income. In addition, it is important to point out that YATAMA
participated fully in the 2004 elections for local authorities. In numerous cases, the
European Court of Human Rights has decided that its declaration that the State has
violated human rights constitutes sufficient reparation and the instant case merits
the application of this case law, taking its circumstances into account.
Alejandro Montiel Argüello
Judge ad hoc
Pablo Saavedra Alessandri
Secretary