Community. In this regard, it considers that the facts described on this issue by the
representatives are not related to Article 5 of the Convention but rather to Articles 4
and 21 thereof that have already been analyzed, and to the reparations that the Court
will order below based on Article 63(1) of the Convention.
243. With regard to mental and moral integrity, the Court recalls that, in the case of
the Moiwana Community v. Suriname, it found that “the separation of the members of
the Community from their traditional lands” was a fact that, together with the impunity
of the deaths that had occurred within the Community, caused the victims to suffer in
such a way that it constituted a violation by the State of Article 5(1) of the American
Convention to their detriment.275
244. In the instant case, several of the alleged victims who testified before the Court
expressed the sorrow that they and the other members of the Community feel owing
to the failure to restore their traditional lands, the gradual loss of their culture, and the
long wait they have had to endure during the ineffective administrative procedure. In
addition, the wretched living conditions that the members of the Community
experience, the death of several of the Community’s members, and their general
situation of abandonment give rise to sufferings that necessarily violate the mental and
moral integrity of all the members of the Community. All this constitutes a violation of
Article 5(1) of the Convention to the detriment of the members of the Xákmok Kásek
Community.
IX
RIGHT TO JURIDICAL PERSONALITY
(ARTICLE 3 OF THE AMERICAN CONVENTION)
245. The Commission argued that the State has not implemented mechanisms that
allow the members of the Community access to “the identity documents required to
exercise their right to recognition of juridical personality.” It indicated that, according
to the 2006 census, 57 of the 212 people interviewed did not have identity documents;
approximately 48 of them were children. According to the 2008 census, at least 43 of
the 273 members of the Community did not have birth certificates; of these, at least
32 were minors.276 Also, the representatives indicated that according to the latest
community census dated October 16, 2009, 35% of the members of the Community
did not have documents.
246. The representatives added that a “large number of Xákmok Kásek individuals
who lack documents […] are unable to prove their existence and identity legally.” They
indicated that “none of the children who died in infancy were registered at birth, so
that, when they died, they did not have birth certificates, which meant that their next
of kin could not obtain death certificates.”
247. The State indicated that it had organized “documentation and registration
activities […] in the Community,” and provided evidence of this. In this regard, it
indicated that, on December 14, 2009, the INDI and the Civil Registry Office organized
a documentation activity where the Community is settled and “receive[d] 35 (first
time) requests for a national identity card and 10 renewal requests.”277 Moreover, it
275
Cf. Case of the Moiwana Community v. Suriname, supra note 129, paras. 101 to 103.
276
Cf. Census of the Xákmok Kásek Community of August 30, 2008, supra note 58, folios 2248 to
2264.
277
Cf. Report of the National Police Identification Department of December 21, 2009 (file of
attachments to the answer to the application, attachment 1(3), folios 3278 to 3280).
57
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