B.
State
22.
The State did not challenge the deaths of the divers or the physical impacts leading to
disabilities in the surviving divers. It contended that, without detriment to it, these incidents could not be
attributed to the State because they were the outcome of accidents that happened in the framework of privatesector business activities. It sometimes argued that it has been determined that “the deaths (…) are due to
professional carelessness.” It contended that, because of that, it has provided training so that divers can be fully
aware of the time-limits and the decompression tables, because “they are the only ones who can take the
decision when to come back up.”
23.
It indicated that it provided medical care to the surviving Miskitos and that the Department of
Occupational Hygiene and Safety of the Secretariat for Labor Affairs has coordinated actions with the medical
services that have served the population of workers who have been exposed to professional risks, for the
purpose of having an up-to-date register of affected workers.
24.
It also added that there are 27 rural health centers in the department of Gracias a Dios, 18
medical-dental health centers, and that the Hospital of Puerto Lempira now has, since 2009, a hyperbaric
chamber that was donated by the United States. It reported that, with this chamber, 65 divers were taken care
of, and that 99% recovered their faculties. According to the documentation received by the Commission, none
of the alleged victims received that treatment.
25.
Nor does the State deny the conditions in which the diving activities are taking place,
according to the terms described by the petitioners. It contended that, because of this situation, it has adopted
various measures such as inspections and training. It also recognized that said actions can be hampered by the
difficulty of accessing the area. The State submitted information on the various measures and standards that it
is implementing to prevent further accidents. It also referred to social security, health, and labor policies
focusing on underwater fishing.
26.
The State pointed out that, although it has adopted these measures, it is not always possible
to fully prevent every accident. It explained that, to a large extent, the satisfaction stemming from the hiring of
the Miskitos depends on their bargaining power. It also stressed that, in a highly remote area such as that of
Mosquitia, it is much more difficult for the State to regulate the work of these persons. It added that, in some
cases “the divers themselves overestimate their own physical capabilities leading to the adverse outcomes that
you already know of.”
27.
In connection with the allegation of the existence of forced labor, the State argued that it
conducts inspections of the fishing vessels, aimed at finding out whether or not i) there is a contract signed
between the employer and the worker; ii) they have the occupational safety regulations for underwater fishing;
iii) the certificate from the safe diving course; and iv) the medical certificate for occupational fitness, the diving
equipment and personal assistance, the radio and communication system, and first aid services.
28.
The State reported that, before resorting to judicial proceedings, administrative claims must
be filed with the Secretariat for Labor Affairs and Social Security. It explained that, if the employer does not
show up for the hearings or if a settlement is not reached, the worker is given an affidavit indicating that the
administrative proceedings have been completed, thus authorizing the worker to go to the labor affair courts
and file a work-related lawsuit. It alleged that, in the present case, the Miskitos did not go to the judicial body
for lack of initiative, not because of the State’s failure to provide due diligence nor because of problems in the
administrative jurisdiction. Furthermore, the State pointed out that, if no legal defense is available, the Labor
Affairs Prosecution Service is in charge of providing assistance and the petitioners cannot allege that there is
mistrust in said institution.
29.
It also alleged that, according to its Constitution, interpreters must be provided in those cases
where they are required. It contended that most of the civil servants of the judicial system of the department
of Gracias a Dios are from and live in the area, as a result of which they all speak the Miskito language. It
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