54
Convention due to lack of a prior consultation with the Garífuna Community of Triunfo de la
Cruz regarding the planning and execution of the “Marbella” tourism project, as well as the
creation of the “Punta Izopo” protected area, and the approval of its Management Plan (supra
para. 87).
197. Likewise, it can be seen in the arguments and the evidence provided, that it was not
until the year 2004 when the Law on Property in Honduras was enacted, which in Article 95
refers to: “[i]f the State expects to exploit natural resources on the lands of these peoples, it
must inform them and consult them [sic] of the benefits and damages that could occur before
authorizing any inspection or exploitation. If it was to authorize any type of exploitation, the
peoples must receive a fair compensation for any damage resulting from these activities.”
198. Additionally, this Court verifies that the State mentioned in its response brief that it
assumed the commitment to create a commission that would, among others, be in charge of
“regulating […] the prior, free, and informed consultation enshrined in Convention 169 of the
[ILO]” and of “establishing the procedures and obligations of the consultation and the
participation of indigenous communities.” In other words, the State acknowledges that at the
time of its response in this case, it did not have regulatory provisions or practices of another
nature that would allow it to make effective the right of the indigenous and tribal peoples to
consultation. However, the Court recalls that in this judgment the State was declared
responsible for the violation of the right to communal property for not having carried out prior
consultations within the framework of the “Club Marbella” project as of the year 1996 and for
the creation of the Punta Izopo National Park in the year 2000, which are prior to the adoption
of the Law on Property of 2004.
199. Therefore, it can be concluded from the aforementioned that in what refers to the
period prior to the adoption of the Law on Property of 2004, the State is responsible for noncompliance of its obligation to adopt domestic legal provisions, enshrined in Article 2 of the
American Convention, in relation to the declared violation of the rights to consultation and to
property in detriment of the Garífuna Community of Triunfo de la Cruz and its members, due
to the absence of adequate regulations or practices to ensure an effective consultation
procedure at the time of the facts, which resulted in the violations proven in the corresponding
chapter of this judgment.
200. Regarding the period following the year 2004, since the mentioned regulations were
not applied to the facts of the case, nor could they have been given the historical moment in
which they occurred, the Court will not issue judgment on the State’s alleged responsibility
for the alleged violation of Article 2 of the Convention, in relation to Articles 1(1), 21, 8, and
25 of the same.
VII-3.
THE RIGHT TO LIFE OF OSCAR BREGA, JESÚS ÁLVAREZ ROCHE, JORGE CASTILLO
JIMÉNEZ AND JULIO ALBERTO MORALES
(Article 4 of the Convention in relation to Article 1(1))
A. Arguments of the parties and of the Commission
201. The representatives argued that “even though the Inter-American Commission did not
consider the filing of the case for violations to Article 4 of the American Convention in relation
to Article 1(1) of the same the murder of at least four community leaders in direct relationship
with the work carried out by them to defend their lands” was “indubitably proven.” 204 In this
In its briefs of pleadings and motions, although not in its submission, the representatives also referred to
the fact that “it ha[d] been evidenced […] that there were violations to the right to […] personal integrity Art. 5(1),”
204