87
the children of the Community the basic conditions to ensure that the situation of
vulnerability of their Community due to lack of territory will not limit their
development or destroy their life aspirations.208
173.
that
In this regard, witness Albino Fernández, teacher of the Community, stated
[w]here the Community is located today is a strip of land that the authorities say is a
public road and there it is not possible to cultivate, or to have animals to hunt. The
Community has been forbidden to hunt, gather firewood and get water from its lands.
For this reason, many of the children cannot go on studying. Many children lose the
school year due to those conditions, because they have no food, no water, especially
during drought periods, and because they are ill.
174.
that
Pablo Balmaceda Rodríguez, expert witness in this case, in turn pointed out
[w]hat we found is that the Community suffers from parasitism and anemia, and this, as
I said at the outset, can be seen by the naked eye. When one arrives at the Community
one sees the children’s discolored hair and their enlarged stomachs, that is what one
notes most. If one asks […] their age […] one can realize that their height is not what
one imagines that an eight or ten year old child should have, and this is a disease [that]
is known […] as malignant tropical anemia, which is the lack of protein, a lack of protein
that causes discoloring of the hair, enlargement of the stomach, and other consequences
that are not so visible, such as retarded intellectual development […] the consequence
[for] these children [is that] they will not have the intellectual development they could
have had with good nutrition since their early childhood.
175. As regards the special consideration required by the elderly, it is important for
the State to take measures to ensure their continuing functionality and autonomy,
guaranteeing their right to adequate food, access to clean water and health care.
Specifically, the State must provide care for the elderly with chronic diseases and in
terminal stages, to help them avoid unnecessary suffering. In this case, it is
necessary to take into account that in the Yakye Axa Indigenous Community oral
transmission of the culture to the younger generations is primarily entrusted to the
elderly (supra para. 50.111).
176. Based on the above, the Court finds that the State abridged Article 4(1) of
the American Convention, in combination with Article 1(1) of that same Convention,
to the detriment of the members of the Yakye Axa Community, for not taking
measures regarding the conditions that affected their possibility of having a decent
life.
177. Finally, the Commission and the representatives alleged that the State is
responsible for the death of sixteen members of the Yakye Axa Community due to
causes that could have been avoided with adequate food and medical care, and as a
consequence of the lack of an appropriate and timely response by the State to the
Community’s claim to its ancestral land. Pursuant to Article 4(1) of the Convention
every person has the right for his or her life to be respected and guaranteed, and not
paras. 126 and 134; and Case of the “Street Children” (Villagrán Morales et al.), supra note 182, paras.
146 and 191. Likewise, see Juridical Condition and Human Rights of the Child. Advisory Opinion OC17/02 of August 28, 2002. Series A No. 17, paras. 56 and 60.
208
See Case of the “Juvenile Reeducation Institute”, supra note 200, para. 160; Juridical Condition
and Human Rights of the Child, supra note 207, paras. 80-81, 84, and 86-88, and Case of the “Street
Children” (Villagrán Morales et al.), supra note 182, para. 196.
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