It is the duty of society in general and of the State in particular, through its institutions, to respect,
protect and promote the development of the indigenous peoples, their cultures, families and communities,
taking appropriate measures to achieve these objectives, and to protect indigenous lands, supervise their
satisfactory exploitation and their ecological balance, and promote their expansion. [Bold added]
206. Article 1(1) of the American Convention prohibits discrimination in general, and includes
categories who may not be discriminated against (supra para. 196). Taking into account the
criteria described previously, this Court places on record that the ethnic origin of an individual is
a category protected by the Convention. Hence, the American Convention prohibits any
discriminatory norm, act or practice based on an individual’s ethnic origin. Consequently, no
norm, decision or practice of domestic law, applied by either State authorities or by private
individuals, may reduce or restrict in any way the rights of an individual based on his ethnic
origin.221 This is equally applicable to the prohibition, under Article 24 of this instrument, of
unequal treatment based on ethnic origin under domestic law or in its application.
a.ii)
The right to an impartial judge or court
207. Article 8 of the American Convention is entitled “Right to a Fair Trial” [“Judicial
Guarantees” in the Spanish version]. The first of these guarantees is that of Article 8(1), which
establishes the following:
1.
Every person has the right to a hearing, with due guarantees and within a reasonable time, by a
competent, independent, and impartial tribunal, previously established by law, in the substantiation of
any accusation of a criminal nature made against him or for the determination of his rights and
obligations of a civil, labor, fiscal, or any other nature.
208. In the instant case, allegations have been submitted to the Court’s consideration
concerning the supposed lack of impartiality of the judges or courts that handed down the
judgments convicting the presumed victims in this case. In this regard, the Court has
established that personal impartiality requires that a judge who intervenes in a specific dispute
must approach the events of the proceedings without any subjective bias and, also, offering
sufficient guarantees of objectivity that eliminate any doubt that the accused or the community
may have concerning the absence of impartiality. The Court has emphasized that personal
impartiality is presumed unless there is evidence to the contrary consisting, for example, in the
demonstration that a member of a court or a judge has personal prejudices or biases against
the litigants. The judge must appear to be acting without being subject to direct or indirect
influence, incentive, pressure, threat or interference, but only and exclusively in accordance
with – and inspired by – the law.222
209. The Court has also determined that “a violation of Article 8(1) owing to the presumed
lack of judicial impartiality of the judges must be established based on specific, concrete
probative elements that indicate the presence of a case in which the judges have clearly let
themselves be influenced by aspects or criteria other than legal norms.”223
210. Effective measures to combat terrorism must be complementary and not contradictory
to the observance of the norms for the protection of human rights.224 When adopting measures
221
The same is true with regard to the prohibition of discrimination based on sexual orientation. Cf. Case of Atala Riffo
and daughters v. Chile, para. 91.
222
Cf. Case of Apitz Barbera et al. (“First Contentious Administrative Court”) v. Venezuela, para. 56, and Case of Atala
Riffo and daughters v. Chile, para. 189.
223
Cf. Case of Atala Riffo and daughters v. Chile, para.190.
224
Cf. UN Doc. A/HRC/16/51, December 21, 2010, Human Rights Council, Report of the Special Rapporteur for the
promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin, Ten areas
of best practices in countering terrorism, paras. 12 and 13. Similarly: Case of Loayza Tamayo v. Peru. Merits, paras. 44 and
57; Case of Cantoral Benavides v. Peru. Merits. Judgment of August 18, 2000. Series C No. 69, para. 95; Case of Lori
Berenson Mejía v. Peru. Merits, reparations and costs. Judgment of November 25, 2004. Series C No. 119, para. 91, and
Case of the Miguel Castro Castro Prison v. Peru. Interpretation of the judgment on merits, reparations and costs. Judgment
of August 2, 2008 Series C No. 181, paras. 76 to 80.
72
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