54. For their part, the petitioners argue that the constitutional amparo remedy is adequate to
address the specific infringement of a legal right in this case, in other words, the violation of
the fundamental rights of the indigenous people of Sarayaku. They assert that what
distinguishes between the validity of the action for amparo and the administrative disputes
remedy is not the nature of the matter per se, but rather the simultaneous presence of three
elements, which are: 1) an illegal act or omission, 2) that causes or threatens grave and
imminent harm to the victims, 3) in violation of a subjective right enshrined in the Constitution
or in the international treaties in force.
55. The petitioners add that the intention of the constitutional amparo suit brought on
November 28, 2002 was to request that the competent judicial authority order urgent
measures to suspend hydrocarbonaceous activities in the ancestral territory of the Kichwa
people of Sarayaku and to put a stop to acts committed beginning in November 2002, by
people acting in representation or by concession of the public authorities who were causing
serious harm to the indigenous people of the Sarayaku community and its members. The
petitioners have stated that the domestic remedies attempted are based on Ecuadorian
constitutional precepts and were not intended to cancel the effect of the oil concession contract
signed by the Ecuadorian State and a private corporation, but rather to ensure that they
respect existing domestic and international legal standards regarding the rights of indigenous
peoples approved by the State itself.
56. It is necessary to clarify what domestic remedies must be exhausted in the case at hand.
The Inter-American Court has stated that only those remedies adequate to correct the
violations allegedly committed must be exhausted. Adequate remedies means:
... those which are suitable to address an infringement of a legal right. A number of
remedies exist in the legal system of every country, but not all are applicable in every
circumstance. If a remedy is not adequate in a specific case, it obviously need not be
exhausted. A norm is meant to have an effect and should not be interpreted in such a
way as to negate its effect or lead to a result that is manifestly absurd or unreasonable. 17
57. The Inter-American Court has stated that the procedural institution of amparohas the
characteristics necessary to effectively protect fundamental rights.
In the course of examining simple, rapid, and effective mechanisms involved in the
provision discussed, this Court has maintained that the procedural institution of amparo
has the required characteristics to effectively protect fundamental rights, that is, being
simple and brief.18
58. The remedy of amparo in Ecuador is stipulated in Article 95 of its Political Constitution and
the first paragraph states as follows:
Anyone, in his own right or as a representative of a group, may file an amparosuit before
the organ of the Judiciary designated by law. Through this action, which will be processed
on a preferential and expedited basis, the adoption of urgent measures shall be
requested to put an end to, prevent the commission of, or immediately rectify the
consequences of an illegal act or omission by a public authority, which violates or could
violate any right enshrined in the Constitution or in an international treaty or covenant in
force and threatens to cause imminent serious harm. The suit may also be brought if the
act or omission was carried out by individuals providing a public service or acting in
representation or through a concession of public authority.19
59. The Ecuadorian Constitution also states that:
17 Inter-American Court, Case of Velásquez Rodríguez. Judgment of July 29, 1988. Ser. C Nº 4, para. 64
18 Inter-American Court, Case of the Mayagna (Sumo) Awas Tingni Community vs. Nicaragua, Judgment of August
31, 2001, para. 131.
19 Article 95 of the Political Constitution of the Republic of Ecuador, paragraph 1.
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