59
65.
In its analysis of the administrative proceeding for indigenous land claims in
the instant case, the Court will first examine the formal existence of a recourse to
enable indigenous land claim requests.
Second, the Court will address the
effectiveness of said recourse, which involves an examination, inter alia, of respect
for the principle of reasonable term. For this, the Court reiterates that to establish
reasonable term in a proceeding it is necessary to take into account three aspects:
a) complexity of the matter, b) procedural initiative of the interested party and c)
conduct of the judicial authorities.179
66.
In view of the above, the Court will analyze the various stages of the
administrative proceeding in the instant case, that is: i) the process of recognition of
the leaders of the Yakye Axa Community; ii) the process of recognition of the legal
status of said Community; and iii) effectiveness of said land claim process.
i.
Process of recognition of the leadership
67.
With regard to recognition of the leaders, Article 12 of Law No. 904/81
provides that
[t]he leaders will legally represent their community. Appointment of the leaders will be
reported to the Instituto [Paraguayo del Indígena], which will recognize that
appointment within thirty days from the date of said report and will record that
appointment in the National Registry of Indigenous Communities.
68.
The Court has established that on August 15, 1993 the members of the Yakye
Axa Community asked the INDI to recognize Tomás Galeano and Esteban López as
leaders of the Community and include them in the National Registry of Indigenous
Communities (supra para. 50.17); it was not until September 18, 1996 that the
President of the Board of Directors of the INDI issued a ruling in which he accepted
said request (supra para. 50.18).
69.
The period of three years, one month and three days to decide on a request
whose complexity was minimal, when the legal term is thirty days, disregards the
principle of reasonable term.
ii.
70.
Process of recognition of legal status
The pertinent provisions of Law No. 904/81 set forth that:
Article 9.- The request for recognition of legal status will be submitted to the Instituto
Paraguayo del Indígena by the leaders of the Community, with the following data:
a) name of the Community; list of the families and their members, stating their age,
marital status and sex;
b) geographical location of the Community if it is permanent, or of the sites where it is
frequently located, if its location is not permanent; and
c) the names of the leaders of the Community and justification of their authority.
179
See Case of the Serrano Cruz Sisters, supra note 2, para. 67; Case of Tibi. Judgment of
September 7, 2004. Series C No. 114, para. 175, and Case of Ricardo Canese. Judgment of August 31,
2004. Series C No. 111, para. 141.
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