72
275.
As the Court has indicated repeatedly, the duty to investigate is a duty of means, and not
of results, and must assumed by the state as a legal obligation of its own, and not as a mere formality
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preordained to be ineffective. In that vein, the investigation should be carried out with due diligence, in
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an effective, serious, and impartial manner , and within a reasonable time. The Inter-American Court
has also established that “domestic proceedings must be considered as a whole and the duty of the
international tribunal is to find out if all proceedings were carried out in compliance with international
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provisions,” given that the right to effective judicial protection therefore “requires that the judges direct
the proceeding in such a way as to avoid undue delays and obstructions that lead to impunity, thus
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frustrating due judicial protection of human rights.”
276.
The IACHR has considered it proven that the alleged victims filed at least five criminal
complaints for the purpose of having those responsible for the attacks on their territories and natural
resources investigated and punished: (i) criminal complaint filed December 20, 2006, before the Attorney
General of the Nation for the crimes of illicit association to engage in criminal conduct, usurpation, harm
to property, illicit enrichment, ecological crime, and all others that result from the illegal occupation of the
lands of the Comarca; (ii) complaint filed January 16, 2007, by the General Caciques of the Kuna
Comarca of Madungandí with the Specialized Unit on Crimes against the Environment of the Technical
Judicial Police, for crime against the environment; (iii) complaint filed on February 1, 2007, by the
Corporación de Abogados Indígenas de Panamá, in representation of the Kuna Congress of Madungandí
for crime against the environment; (iv) complaint filed January 30, 2007, by Héctor Huertas, attorney for
the Kuna Comarca, with the Technical Judicial Police of the District of Chepo; and (v) complaint filed
August 16, 2011, by Tito Jiménez, administrative sahila of the community of Tabardi, for the invasion and
illegal logging in the Kuna Comarca of Madungandí.
277.
Regarding the first complaint, the IACHR was not informed of actions taken to investigate
effectively the alleged facts and establish the corresponding responsibilities; instead, the State itself
informed that it did not have a record of the complaint. According to the information available to the
IACHR, the two subsequent complaints were joined in a single proceeding, which has been before the
th
Office of the 11 Prosecutor of the First Judicial Circuit of Panama since February 2007. As of that date,
various proceedings took place which concluded with the issuance of Prosecturorial Review No. 151, on
May 29, 2008, which requests the provisional stay of the investigation. As regards the fourth complaint
filed, according to the evidence in the record before the IACHR, it culminated with the temporary
dismissal of the case issued on December 27, 2007, by the Judge of the Tenth Criminal Circuit of the
First Judicial Circuit of the Province of Panamá. As for the fifth complaint, the IACHR has no information
other than that it was filed and that certain measures were taken, yet it has not been informed, to date, of
the existence of further proceedings, or of a definitive decision in the matter.
278.
As regards the administrative penalizing procedures pursued for the protection of the
natural resources located in indigenous territories, the IACHR has found that the Kuna of Madungandí
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I/A Court H.R., Case of Velásquez Rodríguez v. Honduras. Judgment of July 29, 1988. Series C No. 4, para. 177; I/A
Court H.R., Case of Cantoral Huamaní and García Santa Cruz v. Peru. Preliminary Objection, Merits, Reparations and Costs.
Judgment of July 10, 2007. Series C No. 167, para. 131; and I/A Court H.R., Case of Zambrano Vélez et al. v. Ecuador. Merits,
Reparations and Costs. Judgment of July 4, 2007. Series C No. 166, para. 120.
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I/A Court H.R. Case of García Prieto et al. v. El Salvador. Preliminary Objection, Merits, Reparations and Costs.
Judgment of November 20, 2007. Series C No. 168, para. 101; I/A Court H.R., Case of the Brothers Gómez Paquiyauri v. Peru.
Judgment of July 8, 2004. Series C No. 110, paras. 146; I/A Court H.R., Case of Cantoral Huamaní and García Santa Cruz v. Peru.
Preliminary Objection, Merits, Reparations and Costs. Judgment of July 10, 2007. Series C No. 167, para. 130.
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I/A Court H.R. Case of Bulacio v. Argentina. Judgment of September 18 2003. Series C No. 100, para. 114; I/A Court
H.R., Case of the Rochela Massacre v. Colombia. Judgment of May 11, 2007. Series C. No. 163. Para. 146; I/A Court H.R., Case
of the Miguel Castro Castro Prison v. Peru. Judgment of November 25, 2006. Series C No. 160, para. 382.
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369
I/A Court H.R. Case of Baldeón García v. Peru. Judgment of April 6, 2006. Series C No. 147, para. 142.
I/A Court H.R. Case of Myrna Mack Chang v. Guatemala. Judgment of November 25, 2003. Series C No. 101, para.
210. I/A Court H.R., Case of Bulacio v. Argentina. Judgment of September 18, 2003. Series C No. 100, para.115.