56
i) there has not been a delay of more than ten years in the land claim
procedure, since the Community received legal status on December 10, 2001.
The legal status granted to the Community by Decree No. 15.228 is what
gives it the right to the claims it is entitled to as an indigenous people,
bearing in mind that the indigenous property provided for in the Constitution
and the laws in force in Paraguay is communal, rather than individual;
j) in all domestic proceedings in this case there has been full participation of
the attorneys of the alleged victims, they have had access to all legal and
procedural mechanisms to attain their rights, and they have ultimately
received guarantees of enforcement of the decisions, which unfortunately,
due to insuperable procedural errors, were adverse;
k) the domestic legal provisions in Paraguay on indigenous peoples are
diverse and numerous. They are necessarily complemented by those in force
for the rest of the population, which are also part of the set of laws in force.
It is true that procedural legislation and legislation on the substantive issues
is neither definitive nor conclusive, but that is because the laws are neither
eternal nor unchanging, but rather dependent on the requirements of
historical social circumstances and the needs of the citizens;
l) The 1992 Constitution that is in force, ILO Convention No. 169, Law No.
1863/02 on the Agrarian Statue, Law No. 904/81, the General Law on
Education, No. 1.264/98, and the Criminal Procedures Code, among other
provisions, demonstrate the efforts that are being made to adjust legislation
in terms of participatory and democratic parameters that restated national
objectives in view of comprehensive development goals of the citizenry in
general and of specific collectivities, such as the indigenous peoples, and
m) Legislation in force regarding access to land is perfectible and therefore
requires a special provision to address the situation entailed by
acknowledgment of the right to traditional indigenous property vis-à-vis the
right of the current owners of private property. In this regard, there is a need
to implement legislation for an effective and rapid remedy that can be applied
in said situations of conflicting rights.
Considerations of the Court
55.
Article 8 of the American Convention provides that:
1. Every person has the right to a hearing, with due guarantees and within a reasonable
time, by a competent, independent, and impartial tribunal, previously established by
law, in the substantiation of any accusation of a criminal nature made against him or for
the determination of his rights and obligations of a civil, labor, fiscal, or any other
nature.
2. Every person accused of a criminal offense has the right to be presumed innocent so
long as his guilt has not been proven according to law. During the proceedings, every
person is entitled, with full equality, to the following minimum guarantees:
[...]
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