II.
11.
Article 13 (Freedom of Thought and Expression) was not violated
Article 13(1) of the American Convention establishes the following:
Article 13. Freedom of Thought and Expression
1. Everyone has the right to freedom of thought and expression. This right
includes freedom to seek, receive, and impart information and ideas of all
kinds, regardless of frontiers, either orally, in writing, in print, in the form of
art, or through any other medium of one's choice.
12.
Once again it is necessary to point out that this provision has not been transcribed
in the text of the judgment. Perhaps the reason for this unjustified omission is the fact that
it is sufficient to read Article 13 to understand that the refusal to hand over certain
information considered necessary in order to exercise the rights to participation and to
consultation of an indigenous or tribal people are unrelated to “freedom of thought and
expression” and, in particular, with the “freedom to seek, receive, and impart information
and ideas of all kinds.”
13.
As the Court rightly indicated in the judgment in the Sarayaku case:
[R]egarding the alleged violation of Articles 13, 23 and 26 of the Convention, the
Court agrees with the Commission that, in cases such as this one, access to
information is vital for effective democratic monitoring of the State’s management of
the exploration and exploitation of natural resources on the territory of indigenous
communities, a matter of evident public interest. Nevertheless, the Court considers
that, in this case, the facts have been sufficiently analyzed and the violations
conceptualized under the rights to communal property, consultation and cultural
identity of the Sarayaku People, in the terms of Article 21 of the Convention, in
relation to Articles 1(1) and 2 thereof; accordingly, it will not rule on the alleged
violation of those provisions.372
14.
In the instant case, the Court considered the possible violation of Article 13 ex
officio, because it had not been alleged by either the Commission or the presumed
victims.373 It immediately began to examine the possible violation of Article 13 consisting in
the “the State’s failure to answer the request for information on the property titles, which
the victims have alleged.”374 More precisely, this was a request “to clarify and produce the
relevant documents that prove whether the persons identified above [H.J. De Vries and
Harrold Sijlbing] possess valid land titles in the village of Pierrekondre; and if so, [to
explain] the nature of those titles and whether the said persons had permission to build
houses and/or stores under them. [They] asked that this information be provided in writing
legislative or other measures required to make those rights effective and to respect and ensure their free and full
exercise without discrimination, in accordance with Articles 2 and 1(1) of the Convention, respectively.” This was
an evident inconsistency which the Court should not repeat.
372
Case of the Kichwa Indigenous People of Sarayaku v. Ecuador. Merits and Reparations. Judgment of June
27, 2012. Series C No. 245, para. 230.
373
Case of the Kaliña and Lokono Peoples v. Suriname. Merits, Reparations and Costs. Judgment of
November 25, 2015, para. 259.
374
Case of the Kaliña and Lokono Peoples v. Suriname, supra, para. 260.
5
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