68
259. The Court refers to that stated regarding the Community’s ancestral territory in the
Chapter on Merits concerning the right to communal property, and it indicates that the State
must proceed to demarcate the lands over which the Community’s collective property has
been granted in full ownership and in guarantee of occupation. This must be implemented
within a maximum period of two (2) years computed as of the notification of this judgment
and with full participation of the Community, taking into consideration its customary law,
uses, and customs.
260. Similarly, this Court orders, with regard to the area designated “Plot A1” (infra Map
Annex) that was acknowledged as traditional territory of the Community of Triunfo de la Cruz
by the INA (supra para. 115), that the State grant the Community within a period of two (2)
years computed as of the notification of this judgment, a collective property deed over that
land, which must be duly delimited and demarcated.
261. If in compliance with this measure of reparation the State must carry out expropriation
proceedings or procedures necessary to relocate third parties that may have title deeds of full
ownership over plots included in plot A1 (infra Map Annex), including the 22 blocks allocated
to the Workers’ Union of the Municipality of Tela (supra para. 78), and the plots of land
belonging to the companies MACERICA and IDETRIS, the State must pay the corresponding
compensations to the affected parties, pursuant to the stipulations of domestic legislation.
The Court recalls its case law, according to which the “restriction of the right of private
individuals to private property might be necessary to attain the collective objective of
preserving cultural identities in a democratic and pluralist society, in the sense given to this
by the American Convention,” implying the State’s obligation to pay “fair compensation to
those affected, pursuant to Article 21(1) of the Convention.”244
262. If, due to duly motivated reasons, the State considers it is not possible to carry out
the titling of all or part of plot A1 (infra Map Annex), it shall grant a collective property title
deed to the Community over alternative lands of the same size and quality than those not
granted. For the implementation of this measure, the State shall consult with the Community
of Triunfo de la Cruz and its members through a procedure that complies with international
standards in this matter.
263. Without detriment of the aforementioned, the State shall develop, in agreement with
the Community of Triunfo de la Cruz, rules for a peaceful and harmonious coexistence in the
territory in question thus making sure that those who are not part of the Community respect
the uses and customs of the Community of Triunfo de la Cruz; additionally it must develop
the necessary mechanisms of prevention to avoid any damage by third parties to the Garífuna
territory.
264. The Court recalls that, as long as the mentioned lands have not been demarcated and,
when appropriate, adequately titled in favor of the Community of Triunfo de la Cruz, the State
must abstain from carrying out actions that could result in agents of the State itself, or third
parties acting with its acquiescence or tolerance, affecting the existence, value, use, or
enjoyment of the lands that should be returned to them and those over which they currently
hold title deeds.
C. Obligation to investigate the facts that resulted in the violations and identify,
prosecute, and, if appropriate, punish those responsible
265. The Commission asked the Court to order the State to investigate and punish those
responsible for “the threats, harassments, acts of violence and intimidation, and damages
Cfr. Case of the Yakye Axa Indigenous Community v. Paraguay. Merits, Reparations, and Costs. Judgment
of June 17, 2005. Series C No. 125, para. 148.
244