55
human rights are in full force for their use in search of justice. The State
cannot substitute the will of the parties in the process of legally claiming their
rights nor can it instruct private parties regarding the suitable legal means to
claim their rights;
b) in the instant case the land claim was processed before the agency in
charge of administration of said resources, which constitutes evidence of
exercise of guarantees and of the administrative protection set forth in
Paraguayan legislation. Administrative Law allows all types of petitions for
the specialized institutions to issue rulings by means of decrees, orders,
ordinances, and so forth. It is also possible to appeal these rulings by means
of the body established by law in each case, and subsequently before the
Administrative Law Court;
c) the representatives of the Community did not state and defend their
legitimate rights in the most appropriate way before domestic bodies. The
actions undertaken were inappropriate, untimely, or negligent. The amparo
remedy filed in this case was rejected by two instances because it was timebarred, the precautionary measures were revoked because the Judge deemed
that they would make it impossible for the property claimed to continue being
rationally used by its owners, and the constitutional motion was found to be
discontinued, that is, the legal action lapsed for lack of procedural initiative of
the interested party;
d) according to domestic law and domestic justice, the Yakye Axa
Community had neither possession nor ownership of the land they claim. The
Community did not even have the minimum number of members required by
law to have access to and justify an ancestral property regarding the rights
that domestic legislation acknowledges and protects in the case of private
property, whose owners, in accordance with administrative and judicial
procedures, have defended these rights and have attained judicial protection
under domestic venue;
e) the members of the Community have sought to assert a historically
recognized possession that legally has, nevertheless, been stated
inappropriately. The members of the Yakye Axa Community have been
manipulated to obtain rights that the State explicitly acknowledges but that
must be asserted on reasonable legal grounds and factual background;
f) the right to ancestral property should have been discussed in a regular
trial, to establish the paramount right claimed. If they had resorted to the
appropriate procedure, the result would have established a legal precedent for
similar cases of land claims by indigenous communities;
g) the fact that the lands were under rational use, which was the basis for
rejection of the expropriation requested by the Executive, was never disputed
under administrative law jurisdiction;
h) there is no provision that denies or forbids asking the Legislative, once
again, to expropriate a property claimed by the Community or any other
property, especially bearing in mind that the refusal to expropriate took place
in a previous legislative period;
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