11
44. Regarding the specific damage caused by the violation of human rights in cases
dealing with indigenous and tribal peoples, previous judgments not always
acknowledged that a non-pecuniary damage had been caused to the Community
as a whole.30 However, at least since the Case of the Plan de Sánchez Massacre
v. Guatemala, the Court has established that: “[g]iven that the victims in this
case are members of the Mayan people, this Court considers that an important
component of the individual reparation is the reparation that the Court will now
grant to the members of the community as a whole.”31
45. Later, in the Case of the Saramaka People v. Suriname the Court recognized,
upon determining non-pecuniary damage, the specific manner in which that
damage manifests itself when dealing with indigenous or tribal peoples and
considered the impact the violations of human rights had in that case on the
People as a whole. In this sense, it established that those violations constituted
“a denigration of their basic cultural and spiritual values” and that “the immaterial
damage caused to the Saramaka people by these alterations to the very fabric of
their society entitles them to a just compensation.”32 However, it ordered
payment of the reparations to members of the Community.
46. The Court had already established the importance of acknowledging the juridical
personality of the members of an indigenous community, 33 and in the Case of
Saramaka it recognized this importance specifically in reference to the indigenous
or tribal peoples themselves, being able to exercise said rights such as the right
to collective property.34 The Court established that acknowledgment of the
juridical personality of the Peoples “is a natural consequence of the recognition
of the right of members of indigenous and tribal groups to enjoy certain rights in
a communal manner.”35 Additionally, it established that that the recognition of
the juridical personality of only the individual members of an indigenous or tribal
community “fails to take into account the manner in which members of
indigenous and tribal peoples in general […] enjoy and exercise a particular right;
that is, the right to use and enjoy property collectively in accordance with their
ancestral traditions.”36
47. As previously stated by the Court, recognition of juridical personality is essential,
since the breach of said recognition “implies the absolute denial of the possibility
of being the holder of such rights and of assuming obligations, and renders
individuals vulnerable to the non-observance of the same by the State or by
individuals.” The States must guarantee “the legal and administrative conditions
that may secure for them the exercise of such right” especially to “those persons
in situations of vulnerability, exclusion, and discrimination.”37
30
Cfr. Case of Aloeboetoe et al. v. Suriname. Reparations and Costs. Judgment of September 10, 1993.
Series C No. 15, paras. 83 to 84.
31
Cfr. Case of the Plan de Sánchez Massacre v. Guatemala. Reparations. Judgment of November 19,
2004. Series C No. 116, para. 86.
32
Case of the Saramaka People v. Suriname. Preliminary Objections, Merits, Reparations, and Costs.
Judgment of November 28, 2007. Series C No. 172, para. 200.
33
Cfr. Case of the Sawhoyamaxa Indigenous Community v. Paraguay, paras. 187 to 194.
34
Cfr. Case of the Saramaka People v. Suriname, para. 167.
35
Case of the Saramaka People v. Suriname, para. 172.
36
Case of the Saramaka People v. Suriname, paras. 168 to 169.
37
Case of the Sawhoyamaxa Indigenous Community v. Paraguay, paras. 188 to 189; Cfr. Case of the
Girls Yean and Bosico v. Dominican Republic. Judgment of September 8, 2005. Series C No. 130, para. 179,