19
84.
Would the rights of a member of an indigenous community or an “ejidal”
[community-owned land] group, who are not owners, strictly speaking, but who are
entitled to certain rights over the land granted to the community or to the “ejido”,
and to the products obtained from the land, be excluded from protection of Article
21? Certainly not. This was the opinion of the Court in the Mayagna Awas Tingni case.
Would the rights of an individual in regards to a commercial company which, in turn,
owned a certain property, be excluded from said protection? They would not either.
This was the position of the Court in the Ivcher case. The same can be said of lawful
possession, which is, in fact, the way in which many people, in our countries, exercise
certain rights over realty and personalty. In the Case of Tibi, the Court has kept in
mind the unequivocal fact of unchallenged possession, which in itself would merit the
protection offered by the Convention to the human person’s right to property, as well
as the claim to property by the one in possession of the goods, and in any case the
court order to deliver them. It would be a different matter if, by other means, it were
possible to challenge lawful possession of goods or the perfection of the legal act
from which the property right derived.
XVII. Protection of the family and life plan
85.
In the Loayza Tamayo case, the Court undertook the examination of a topic
that still requires further development and consolidation: the life plan. This involves
more than opportunities, chances, expectations. It is linked, as we stated in this
case, to reasonable goals, well-founded hopes, accessible projects, which together
constitute the course for the individual’s development, one that is deliberate and
feasible, based on certain conditions that support and justify it. Let us add to this the
possibility of a concrete decision by the person entitled to the rights that were
infringed, a decision based on those factors, and not merely on suppositions,
presumptions, or inferences of the external observer.
86.
All this would seem to be so in the case that we are discussing. A project had
been developed and its realization had begun. Apparently, all circumstances were
favorable to it. It had to do with personal life, with the household community, with
work, with the place where all this was developing and would develop, as well as with
decisions reached by the adult members of the family. All of this was destroyed,
abruptly and damaging many lives, due to the facts in violation of the Convention,
heard by the Inter-American Court. This life plan was destroyed and another,
unwanted life course appeared. This has been taken into account in the decision on
reparations, which nevertheless cannot reinstate said project. This, while desirable,
is not feasible in the framework of the instant case.
87.
The above motivates a reflection on the right set forth in Article 17 of the
convention, which the San Salvador Protocol takes up once again through Article 13:
protection of the family. The application filed by the Inter-American Commission did
not mention the abridgment of Article 17, which was, instead, raised in the pleadings
of the representatives of the alleged victim. This argument did not bring up facts
other than those included in the application, but rather the possibility that those
mentioned in it might constitute abridgments of precepts not invoked in it. The Court,
exercising the jura novit curia principle, has accepted the pertinence of considering
those pleadings. Restriction of the hearing of the facts, inherent to the accusatory
system –which is the one adopted in international human rights proceedings-, does
not impede the court, once the former have been stated and proven, to issue such
juridical considerations as may be pertinent in light of the provisions of the American
Convention.
88.
Paragraph one of Article 17 states, as an assumption, that “the family is the
natural and fundamental group unit of society,” and it asserts that the family “is
entitled to protection by society and the state,” the two institutions to which the
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