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a) respect for human life is in force in Paraguay, both in the law and in actual
practice. The State has not breached the right to life by action or by omission
in the instant case. It cannot be blamed for the demise or illness of
individuals due to natural or fortuitous causes, unless there is proof of
negligence in dealing with those specific cases by the public health authorities
or by other authorities who were aware of the facts. It cannot be blamed, by
omission or action, for the death by “suffocation” of a 70-year-old person or
for the death of two 58- and 80-year-old persons due to heart failure;
b) with regard to the cause of death of certain members of the Yakye Axa
Community, it is necessary to point out that they were not personally seen by
expert witness Pablo Balmaceda. All the information on the death of these
persons, whose existence has not been proven, was obtained supposedly
through relatives, for which reason their statement is absolutely null;
c) the Yakye Axa Community, like all citizens, has access to a public health
service with various health care assistance centers, health care posts, and
regional hospitals, to which it is possible to go by means of public
transportation, and where care is free of cost. It is the personal responsibility
of the citizens to go to the health care centers, and in the case of indigenous
communities, it is a shared responsibility with their leaders or chiefs to take
those who are ill to the health care assistance centers or public hospitals or,
at least, to inform the regional public health authorities or INDI of their
situation;
d) at the place where the members of the Yakye Axa Community are
currently located it is impossible to establish any form of medical and health
care. When they settled alongside the route, the leaders of the Yakye Axa
Community placed its members in extreme situations, remote from their
traditional forms of subsistence. The Paraguayan State has also been required
by the Commission, by means of precautionary measures that are still in
force, to let the Yakye Axa Community remain alongside the public road,
clearly violating legal and constitutional provisions that forbid this type of
occupation. Thus, the members of the Yakye Axa Community are alongside
the road by a decision, whether their own or induced by others, that cannot
be attributed to the State, which has instead offered alternatives for
resettlement;
e) it has provided food and healthcare assistance to the Yakye Axa
Community periodically, in accordance with the Executive decree that
declared a state of emergency in this Community, and
f) in this case there is no causal relationship “between the land and physical
survival” and the alleged lack of preservation of the right to life. State agents
never forced the indigenous community members to leave their lands;
instead, they have made substantial efforts to seek other places within their
ancestral territory, in the framework of ILO Convention No. 169.
Considerations of the Court
160.
Article 4(1) of the Convention establishes that:
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