53
192. However, the Court states that from 1981, year in which Honduras acknowledged the
Court’s competence, up to 1992, the Law on Agrarian Reform of 1974 was in force. Under the
mentioned Law only one request was filed by the Community for the granting of a guarantee
of occupation, which -as stated by the representatives themselves203- was granted in 1979.
Therefore, the Court will not issue a judgment regarding the mentioned regulations since its
alleged deficiency did not translate into violations in this case.
193. On the other hand, in 1993 and 2001, respectively, when the Law for the Modernization
and Development of the Agricultural Sector of 1992 was already in force, the Garífuna
Community of Triunfo de la Cruz was granted two title deeds in “full ownership” over
properties. The Commission and the representatives argued that this Law, as well as the laws
on Agrarian Reform, did not include adequate provisions regarding the property of traditional
lands, among others, because it had an agrarian nature, without explaining why this would
be contrary to the Convention or how it would have resulted in violations of rights in this case.
Therefore, the Court will not issue judgment on the mentioned provision and its compatibility
with the American Convention.
194. The Commission and the representatives made several arguments referring to the Law
on Property of 2004. There is no evidence that the alleged deficiencies of that Law resulted
in violations in this case. This Court recalls that the objective of its contentious jurisdiction is
not to revise national legislations in abstract, but to solve specific cases in which an act of the
State, executed against specific people or, in its case an Indigenous Community, contrary to
the Convention is claimed. Therefore, upon hearing of the merits of the case, the Court
examines if the State’s behavior was in accordance or not with the Convention, in relation to
the legislation in force at the time of the facts. Given that in this case there is no evidence
that the Law on Property of 2004 was applied to the Community and its members within the
framework of the facts of this case, this Court will not issue a judgment on its compatibility
with the Convention.
195. Consequently, the Court will not issue a judgment on the State’s alleged responsibility
for the purported violation of Article 2 of the Convention, in relation to Articles 1(1), 21, 8,
and 25 of the same, for the alleged failure to adopt domestic provisions that allow for the
delimitation, demarcation, and titling of collective lands, in detriment of the Garífuna
Community of Triunfo de la Cruz and its members.
B.2. Regulations and/or practices regarding the right to prior consultation
196. Since 1996, when Convention 169 of the ILO went into force for Honduras (supra para.
119), the State was in the obligation, in its case, and following the standards defined in that
international instrument, to consult with the country’s indigenous and tribal communities and
include in its domestic regulations a procedure that would make the right to consultation
effective. The Court verified that in this case there was a violation to Article 21 of the
registration.” Similarly, Article 73 states: “[t]he regularization process will be started ex officio or upon request of
the party by the Property Institute (IP) through a National Plot Regularization Program in urban and rural lands
included in some of the following cases: 1 In those of a private nature whose possessors lack a document that can
be registered; 2 Those whose legal nature is not defined in which human settlements can be found; 3 In those of
private nature in dispute by individuals where human settlements are located; 4 In those of private nature whose
possessors meet the requirements to acquire by statute of limitation; 5 The common lands; 6 The rural national ones
possessed by individuals for up to twenty-five (25) hectares; 7 Those that lacking a title deed are possessed by
ethnic groups; 8 Properties of a fiscal nature with human settlements.”
The representatives stated that the mentioned provision “marked a setback,” but “[h]owever, it was in that
time that Triunfo de la Cruz received a guarantee of occupation for its Community in the year 1979,” even though
they point out that “only the boundaries and measurements of the urban area were recorded” and that Article 27 of
that regulation “in theory would protect indigenous communities […] but was drawn up so generically that it was not
suitable to actually protect the communities.”
203